WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Compagnie Gervais Danone v. Geijin Kim Case No. D2009-0842 1. The Parties
The Complainant is Compagnie Gervais Danone of Paris, France, represented by Dreyfus & associés, France.
The Respondent is Geijin Kim of Seoul, Republic of Korea. 2. The Domain Names and Registrar
The disputed domain names and are registered with YesNIC. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) by email on June 25, 2009, and in hard copy on June 30, 2009. On June 25, 2009, the Center transmitted by email to YesNIC a request for registrar verification in connection with the disputed domain names. On July 2, 2009, YesNIC transmitted by email to the Center its verification response, confirming that the Respondent is listed as the registrant and providing the contact details. 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”).
On July 2, 2009, the Center notified the parties, in both Korean and English, of the Center's procedural rules relevant to the language of the proceeding. The Center informed the parties that, among other items: according to the registrar, the language of the registration agreement is Korean; and the Complaint was submitted in English. In addition, the Center specifically requested the Complainant to provide at least one of the following: “1) satisfactory evidence of an agreement between the Complainant and the Respondent to the effect that the proceeding should be in English; or 2) submit the Complaint translated into Korean; or 3) submit a request for English to be the language of the administrative proceedings . . . .” To the Respondent, the Center stated, “In all cases, if the Respondent is intending to participate in these proceedings, and/or has any comments on the Complainant's submission replying to this notification, the Respondent is requested to submit these to the Center by July 9, 2009.” The Center also instructed the Respondent, “Specifically in the case of the Complainant submitting (or indicating that it will submit) a request for the language of proceedings to be English, and the Respondent objects to such request, the Respondent is invited to indicate that objection for the record, and to submit any arguments/supporting materials . . . as to why the proceedings should not be conducted in English.”
On July 2, 2009, the Complainant responded, stating that the registration agreement is in English, and “[t]herefore, we do not see any reason why we should justify the filing of our complaint in English.” The Respondent did not submit any response or material. On July 10, 2009, the Center notified the parties, in both Korean and English, of its decision to “1) accept the Complaint as filed in English; 2) accept a Response in either Korean or English; 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, in both Korean and English, of the Complaint, and the proceeding commenced on July 10, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was July 30, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on July 31, 2009, again, in both Korean and English.
The Center appointed Professor Ilhyung Lee as the sole panelist in this matter on August 6, 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.
The Panel determines that the language of the proceeding will be English, as discussed herein. 4. Factual Background
The Complainant, incorporated under the laws of France, produces dairy products, bottled water, and baby food, among others. Its products are marketed and sold worldwide. The Complainant has used and registered marks that contain the DANONE trademark in a number of jurisdictions, including the Republic of Korea (“Korea”), with the registration date of December 17, 2003.
The Complainant also registered the domain name on December 14, 1995, on July 27, 2007, and on November 21, 2007.
The Respondent registered the disputed domain names and on November 27, 2008. 5. Parties' Contentions A. Complainant
The Complainant contends that: (i) the disputed domain names are identical or confusingly similar to the marks in which the Complainant has rights; (ii) the Respondent has no rights or legitimate interests in respect of the domain names; and (iii) the domain names have been registered and are being used in bad faith.
The Complainant requests that the disputed domain name be transferred to the Complainant and that be cancelled. B. Respondent
The Respondent did not reply to the Complainant's contentions. Paragraphs 5(e) and 14(a) of the Rules permit the Panel to decide the dispute based on the Complaint. Under paragraph 14(b), the Panel may also draw appropriate inferences from the Respondent's default. 6. Discussion and Findings
Initially, the Panel must address the language of the proceeding. Paragraph 11(a) of the Rules provides that the language of the administrative proceeding shall be the language of the Registration Agreement, unless otherwise agreed by the parties. Importantly, paragraph 11(a) also states that the determination of the language of the proceeding is “subject to the authority of the Panel . . ., having regard to the circumstances of the administrative proceeding.”
According to the registrar's verification response to the Center dated July 2, 2009, the language of the registration agreement here is Korean. The Center reiterated this point in its notification to the parties regarding the language of the proceeding on July 2, 2009. Nevertheless, the Complainant stated in its Complaint that English is the language of the registration agreement, and repeated the assertion in its reply to the Center's notification; in both transmissions, the Complainant attached a copy of the purported English registration agreement. The attachment appears to be the English version of a registration agreement that the registrar uses, which is available on its website. The registrar also has a Korean version, for which a link appears on the copy of the attached registration agreement.
In determining the language of the registration agreement, the Panel is bound by the information provided by the registrar, which has instructed that Korean is the operative language. Nevertheless, considering all circumstances – including the Complainant's request to proceed in English, the Respondent's failure to respond to the Center's July 2, 2009 notification to the parties (in both Korean and English), and the Respondent's ultimate default – the Panel determines that the language of this proceeding is English. A. Identical or Confusingly Similar
The Complainant has established rights in the marks containing the DANONE trademark for its various products. The Panel determines that the disputed domain names are confusingly similar to the Complainant's marks. In this case, the addition of a geographical indicator “korea” does not defeat confusing similarity, even with the omission of the last letter of the mark DANONE as in the disputed domain name . In the Panel's view, in both instances, “danone” is unmistakably the predominant portion of the domain names.
The first element is demonstrated. B. Rights or Legitimate Interests
The Complainant has met its initial burden of making a prima facie showing that the Respondent lacks rights or legitimate interests in respect of the disputed domain names. The burden shifts to the Respondent to demonstrate any such rights or legitimate interests. The Respondent has defaulted. The Panel is unable to ascertain any evidence that would demonstrate the Respondent's rights or legitimate interests in the disputed domain names, as described in paragraph 4(c) of the Policy, or otherwise.
The second element is established. C. Registered and Used in Bad Faith
After consideration of all the circumstances in the available case record, the Panel determines that the bad faith requirement in Paragraph 4(a)(iii) of the Policy is demonstrated. The Complainant's trademark, DANONE, is well-known worldwide. The Respondent registered the disputed domain names well after the Complainant had used and registered its DANONE mark in the Respondent's native Korea. It is impossible for the Panel in light of the present circumstances to conceive of any good faith use of the disputed domain names. Moreover, the Respondent's refusal to take part in the proceeding, in any language, does not help its cause.
The third element is present. 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 Complainant; and the domain name be cancelled.
Ilhyung Lee
Sole Panelist
Dated: August 20, 2009
Full & Egal Universal Law Academy