WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Guardant, Inc. v. Jeff Park Case No. D2009-0631 1. The Parties
The Complainant is Guardant, Inc., Atlanta, Georgia 30320, United States of America, represented by Ladas & Parry, United States of America.
The Respondent is Jeff Park, Republic of Korea. 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 May 11, 2009. On May 12, 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 May 13, 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 while providing contact information in the Complaint. The Center sent its document on the language of the proceeding to both parties on May 19, 2009. The Complainant submitted to the Center its response requesting that the language be English on May 23, 2009. The Center verified that 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”).
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 May 27, 2009. In accordance with the Rules, paragraph 5(a), the due date for the Response was June 16, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on June 17, 2009.
The Center appointed Young Kim as the sole panelist for the present case on June 24, 2009. The Panel found 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 Complainant is the owner of active and subsisting worldwide trademark registrations, amongst others, listed in Annex D to the Complaint, which cover marks consisting entirely of or incorporating the designation SKYTEAM. These registrations were made in over 100 countries. These registrations include U.S. Trademark Reg. No. 2750730 for the mark SKYTEAM, which was issued on August 12, 2003, and U.S. Trademark Reg. No. 2684264 for the mark SKYTEAM AND DESIGN, which was issued on February 4, 2003. These registrations also include Korean Trademark Reg. No. 77856 for the mark SKYTEAM AND DESIGN, which was issued on July 30, 2002, Korean Trademark Reg. No. 84945 for the mark SKYTEAM, which was issued on March 28, 2003, and Korean Trademark Reg. No. 71270 for the mark SKYTEAM, which was issued on October 30, 2001.
According to the registrar of U.S. Trademark Reg. No. 2,750,730, the trademark application was filed on December 29, 1999 and the trademark was first used in commerce on June 22, 2000.
The disputed domain name was originally registered on January 12, 1999. According to the WHOIS history for the disputed domain name, available through DomainT, the disputed domain name was subsequently transferred to SkyTeam Luftfahrtunternehmen GmbH (as of March 16, 2001), to Pending Renewal or Deletion (as of February 1, 2006), and to Nexpert, Inc. (as of March 23, 2006). The historical WHOIS information for the disputed domain name dated September 11, 2006 lists the Respondent, Jeff Park, along with Nexpert, Inc. as the registrant organization and located at the Respondent's current address particulars. Finally, the historical WHOIS information for the disputed domain name dated November 20, 2007 solely lists the Respondent. 5. Parties' Contentions A. Complainant
The Complainant asserts that the facts of the present case establish that each of the three elements set forth in paragraph 4(a) of the Policy are satisfied, namely: (1) the domain name is confusingly similar to the Complainant's SKYTEAM mark in which Complainant has rights; (2) the Respondent has no rights to or legitimate interests in the disputed domain name; and (3) the Respondent registered and used the disputed domain name in bad faith.
The Complainant further asserts that SkyTeam is a global airline alliance that provides customers with extensive worldwide destinations, flights, and services. The Complainant owns all rights to the SKYTEAM mark for the benefit of the SkyTeam Partners, which include Delta Air Lines, Air France, Alitalia, CSA Czech Airlines, Korean Air Lines, Northwest Airlines, Continental Airlines, and KLM. The Complainant licenses use of the SKYTEAM mark to the SkyTeam Partners.
The Complainant also asserts that the SkyTeam Partners provide more non-stop flights between the United States and European destinations than any other airline alliance. Collectively, the SkyTeam Partners offer their 462 million annual passengers a worldwide system of 16,787 daily flights covering 905 destinations in 169 countries. A key element of the SkyTeam Partners' global network is the hub-and-spoke system, which provides unparalleled connectivity and an easy way for customers to travel using members of the same alliance from their departure city to any location in the world.
The Complainant asserts that according to the historical WHOIS records, the Respondent acquired the disputed domain name between February 1, 2006 and November 20, 2007, long after the SkyTeam Partners' first use of the SKYTEAM mark in international commerce and registration of the SKYTEAM trademark in numerous jurisdictions worldwide.
Further, the Complainant asserts and provides supporting materials (Annexes G, H, and I to the Complaint) to support that without the authorization or consent of the Complainant, the Respondent used and is using the disputed domain name to direct Internet users to a commercial website through which goods and services are offered in direct competition with those offered by the SkyTeam Alliance. The website features such links to “Airline Tickets,” “Southwest Airline Reservations,” and “Viaje En Avion.” These links further direct Internet users to a website featuring links to the websites of the SkyTeam Alliance's direct competitors.
The Complainant sent a cease-and-desist letter through local counsel in the Republic of Korea addressed to the Respondent at the contact information listed in the WHOIS information for the disputed domain name. However, the Respondent did not respond to the cease-and-desist letter. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings Language of the Proceeding
The Complaint was filed in English. Pursuant to paragraph 11 of the Rules, in the absence of any agreement between the parties, or otherwise specified in the registration agreement, the language of the administrative proceeding shall be the language of the registration agreement. The Panel notes that the default language of the proceeding for this case would be Korean, being the language of the relevant registration agreement in the absence of any express agreement to the contrary by the parties.
Under the Rules, the Panel has the authority to determine the language of the proceeding. The Complainant has submitted a request that English be the language of the proceeding. The Respondent has received notice of the same in both English and Korean, but nevertheless has not submitted any response or objected to the same.
The Panel has considered the particular circumstances of this case carefully as well as the discretion given to her by paragraph 11(a) of the Rules. The Panel hereby determines that English shall be the language of administrative proceeding in this case. Merits
Paragraph 4(a) of the Policy requires the Complainant to prove that:
Each of these three elements is discussed below.
(i) the disputed domain name is identical or confusingly similar to a trademark to which the Complainant has rights;
(ii) the Respondent has no rights or legitimate interests with respect to the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The Complainant has rights in its SKYTEAM marks which are registered in over 100 countries including the United States and the Republic of Korea. The U.S. trademark application was filed on December 29, 1999. The Complainant has used the SKYTEAM marks extensively in its business world-wide since June 22, 2000.
The Panel finds that the disputed domain name is confusingly similar to Complainant's SKYTEAM mark. It has been well established that the addition of the gTLD “.org” serves no purpose in distinguishing the disputed domain name and the trademark. B. Rights or Legitimate Interests
Even though the Policy requires the Complainant to prove that the Respondent has no rights or legitimate interests in the disputed domain name, it is the consensus among UDRP panelists that in light of the difficulty of proving a negative, the Complainant, initially, only has to make a prima facie case to fulfill the requirements of paragraph 4(a)(ii) of the Policy. As a result, the burden of proof to show that the Respondent has rights or legitimate interests in the disputed domain name will then shift to the Respondent.
The Complainant asserts that it has not authorized, licensed, or consented to the Respondent's registration and use of the domain name incorporating the SKYTEAM mark or any confusingly similar variation thereof. Further, the Complainant contends that there are no current trademark applications or registrations in the name of the Respondent. In addition, nothing in the WHOIS information related to the disputed domain name indicates that the Respondent is commonly known by SkyTeam.
According to the claim of the Complainant, without the authorization or consent of the Complainant, the Respondent is using the disputed domain name to direct Internet users to a commercial website through which goods and services are offered in direct competition with those offered by the SkyTeam Alliance. The website features such links to “Airline Tickets,” “Southwest Airline Reservations,” and “Viaje En Avion.” These links further direct Internet users to a website featuring links to the websites of the SkyTeam Alliance's direct competitors.
On the other hand, the Respondent did not submit any response to the Complaint in the present case. There was no explanation or assertion from the Respondent that the Respondent is using the disputed domain name in connection with a bona fide offering of goods or services. Further, although the Complainant sent a cease-and-desist letter through local counsel in the Republic of Korea addressed to Respondent at the contact information listed in the WHOIS information for the disputed domain name, the Respondent did not respond to the cease-and-desist letter as well.
Accordingly, the Panel finds that the Complainant has met its burden to prove that the Respondent has no rights to or legitimate interests in the disputed domain name, whereas the Respondent failed to deny any of these assertions. C. Registered and Used in Bad Faith
According to the evidence attached to the Complaint, the Complainant's trademark is registered in over 100 countries. These registrations include U.S. Trademark Reg. No. 2750730 for the mark SKYTEAM, which was issued on August 12, 2003, and U.S. Trademark Reg. No. 2684264 for the mark SKYTEAM AND DESIGN, which was issued on February 4, 2003. These registrations also include Korean Trademark Reg. No. 77856 for the mark SKYTEAM AND DESIGN, which was issued on July 30, 2002, Korean Trademark Reg. No. 84945 for the mark SKYTEAM, which was issued on March 28, 2003, and Korean Trademark Reg. No. 71270 for the mark SKYTEAM, which was issued on October 30, 2001.
According to the registrar of U.S. Trademark Reg. No. 2,750,730, the trademark application was filed on December 29, 1999 and the trademark was first used on June 22, 2000 in commerce.
On the other hand, according to the WHOIS history for the disputed domain name, available through DomainT, the disputed domain name was initially registered on January 12, 1999 and was transferred to SkyTeam Luftfahrtunternehmen GmbH (as of March 16, 2001), to Pending Renewal or Deletion (as of February 1, 2006), and to Nexpert, Inc. (as of March 23, 2006). The historical WHOIS information for the disputed domain name dated September 11, 2006 lists the Respondent, Jeff Park, along with Nexpert, Inc. as the registrant organization and located at the Respondent's current address particulars. Finally, the historical WHOIS information for the disputed domain name dated November 20, 2007 solely lists the Respondent.
Thus, the Complainant asserts that the Respondent acquired the disputed domain name long after the SkyTeam Partners' first use of the SKYTEAM mark in international commerce and registration of the SKYTEAM trademark in numerous jurisdictions worldwide. The Respondent did not respond to the Complainant's assertion.
Further, SkyTeam is a global airline alliance that provides customers with extensive worldwide destinations, flights, and services. Guardant owns all rights to the SKYTEAM mark for the benefit of the SkyTeam Partners, which include Delta Air Lines, Air France, Alitalia, CSA Czech Airlines, Korean Air Lines, Northwest Airlines, Continental Airlines, and KLM.
The Complainant asserts that the SkyTeam Partners provide more non-stop flights between the United States and European destinations than any other airline alliance. Collectively, the SkyTeam Partners offer their 462 million annual passengers a worldwide system of 16,787 daily flights covering 905 destinations in 169 countries. A key element of the SKYTEAM Partners' global network is the hub-and-spoke system, which provides unparalleled connectivity and an easy way for customers to travel using members of the same alliance from their departure city to any location in the world. The SkyTeam Partners also make international travel easier through their Round the World fare pass, America/Asia/Europe fare passes, and SkyTeam Global Corporate Contracts which offer corporate travel solutions for multinational companies.
In view of such extensive use of the SKYTEAM mark by the SkyTeam Partners (major airlines) from 2000, it appears that the SkyTeam mark has acquired a significant distinctiveness worldwide.
Further, the Complainant asserts and provides supporting materials (Annexes G, H, and I to the Complaint) to support that without the authorization or consent from the Complainant, the Respondent used and is using the disputed domain name to direct Internet users to a commercial website through which goods and services are offered in direct competition with those offered by the SkyTeam Alliance. The website features such links to “Airline Tickets,” “Southwest Airline Reservations,” and “Viaje En Avion.” These links further direct Internet users to a website featuring links to the websites of the SkyTeam Alliance's direct competitors.
The Complaint thus asserts that Respondent's registration and use of the disputed domain name was to divert Internet traffic to the SkyTeam Partners' direct competitors. This establishes the Respondent's bad faith registration and use of the disputed domain name.
On the other hand, the Respondent has not submitted any response.
Considering the above, the Panel finds that the Complaint has met the requirements of paragraph 4(a)(iii). 7. Decision
For all of 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 Complainant.
Young Kim
Sole Panelist
Dated: July 8, 2009
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