WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Imperial Chemical Industries Limited, Hammerite Products Limited v. Obaman Rute Case No. D2009-0419 1. The Parties
The Complainants are Imperial Chemical Industries Limited and Hammerite Products Limited of London, United Kingdom of Great Britain and Northern Ireland, represented by Blake Lapthorn solicitors, United Kingdom.
The Respondent is Obaman Rute of Kajiado, Kenya. 2. The Domain Name and Registrar
The disputed domain name is registered with Korea Information Certificate Authority Inc. d/b/a DomainCa.com. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 31, 2009. On April 1, 2009, the Center transmitted by email to Korea Information Certificate Authority Inc. d/b/a DomainCa.com a request for registrar verification in connection with the disputed domain name. On April 2, 2009, Korea Information Certificate Authority Inc. d/b/a DomainCa.com transmitted by email to the Center its verification response, confirming that the Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on April 6, 2009. The Center verified that the Complaint together with the amendment to the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
On April 2, 2009, the Center notified the parties of the Center's procedural rules relevant to the language of the proceeding. On April 6, 2009, the Complainant submitted a request that English be the language of the proceeding, to which the Respondent has not replied within the specified deadline. On April 15, 2009, the Center notified the parties of its preliminary decision to 1) accept the Complaint as filed in English; 2) accept a Response in either Korean or English; and 3) appoint a panel familiar with both languages mentioned above, if available.
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 15, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was May 5, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on May 6, 2009.
The Center appointed Boh Young Hwang as the sole panelist in this matter on May 15, 2009. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background
The Complainants are corporations established in the United Kingdom and the Complainant Hammerite Products Limited (“Hammerite”) is a subsidiary of the Complainant Imperial Chemical Industries Limited (“ICI”). Hammerite has registered and owns the trademarks HAMMERITE in various countries and also various domain names including the word “hammerite” but not limited to , and .
The disputed domain name was originally registered by a Korean individual named Kyoung-Suk Park. Hammerite sent a written notice to Kyoung-Suk Park on January 15, 2009, requesting transfer of the disputed domain name to Hammerite. Absent any response to such notice, the disputed domain name was transferred to Obaman Rute on January 16, 2009. The disputed domain name has been in use for the website which provides a search engine directing users to third party sites. 5. Parties' Contentions A. Complainant
(a) The disputed domain name is identical or confusingly similar to the trademark HAMMERITE registered and owned by Hammerite.
(b) The Respondent has no rights or legitimate interests in respect of the disputed domain name.
(c) By using the disputed domain name, the Respondent is intentionally attempting to attract for commercial gain Internet users to the Respondent's website by creating a likelihood of confusion with the Complainants' mark as to the source, sponsorship, affiliation or endorsement of the Respondent's website. The disputed domain name was registered and is being used in bad faith. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings Language of the Proceeding
According to Paragraph 11 of the Rules, the language of the administrative proceeding shall be language of the registration agreement, which is the Korean language in this case. Paragraph 11 of the Rules, however, also grants the Panel the authority to determine otherwise, having considered the circumstances of the administrative proceeding.
In this given case, the Respondent of record with the registrar has domicile in Kenya, to which the Korean language has no relevance apparent from the present record. Further, the Respondent did not reply to any notice given by the Center (which were issued in both Korean and English) on any issues including the language issue. Therefore, this Panel finds that, under the authority granted by Paragraph 11 of the Rules that English being a very common language with global use shall be the proper language for this proceeding. A. Identical or Confusingly Similar
The disputed domain name incorporates, as the most prominent and only meaningful feature, the word “hammerite” which is identical to the Complainant's trademark HAMMERITE.
The Panel finds that the disputed domain name is confusingly similar to the Complainant's trademark. B. Rights or Legitimate Interests
While it is for the Complainant to prove that the Respondent has no rights or legitimate interests in respect of the disputed domain name, once the Complainant has made out a prima facie case, the Respondent is required to answer that case.
The Complainant's contentions, which are supported by the evidence, are that the Respondent has not used or has not obtained any right on the word “Hammerite” as its trademark, product name, service name or for any other reasonable business purpose, and thus, the Respondent has no rights or legitimate interests in respect of the disputed domain name in any aspect. The Panel is satisfied that the Complainant has done enough to make out the requisite prima facie case.
The Respondent has not provided any answer of any kind. Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith
Under the circumstances pertaining here where (a) the Complainant has registered and owns a globally registered trademark, (b) the disputed domain name is confusingly similar to the Complainant's trademark, (c) the Respondent is using the disputed domain name to connect to a website with links to other entities having no connection with the Complainant and (d) the Respondent has elected not to respond to the strong case made out by the Complainant, a finding of bad faith registration and use will ordinarily be the inevitable result.
In the present case, the Panel therefore has little hesitation in concluding that the Respondent's registration and use of the disputed domain name has been made in bad faith, at least to attract for commercial gain Internet users to the Respondent's website by creating a likelihood of confusion with the Complainants' mark. 7. Decision
For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name be transferred to the Complainants.
Boh Young Hwang
Sole Panelist
Dated: May 29, 2009
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