WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Maxxsonics USA, Inc. v. Tom Kamica Case No. D2009-0987 1. The Parties
Complainant is Maxxsonics USA, Inc. of Illinois, United States of America, represented by Patzik, Frank & Samotny Ltd., United States of America.
Respondent is Tom Kamica of Seoul, Republic of Korea. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, Inc (hereinafter “the Domain Name”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 21, 2009. On July 22, 2009, the Center transmitted by email to GoD, Inc. a request for registrar verification in connection with the Domain Name. On July 22, 2009, GoD, Inc. transmitted by email to the Center its verification response confirming that 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”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on July 28, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was August 18, 2009. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on August 21, 2009.
The Center appointed Clive L. Elliott as the sole panelist in this matter on September 4, 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
Complainant trades in the home and vehicle audio equipment industry. It is the owner of the United States (“U.S.”) trademark registration for the word HIFONCIS (the “Trademark”) for amplifiers, audio speakers, subwoofers, tweeters, and preamplifiers and components relating to. It is also the owner of trademark registrations in Europe, the People's Republic of China, India, Mexico and the Russian Federation with further pending applications in other countries.
The Domain Name was created on October 6, 1997 and transferred to Respondent on March 2, 2006. 5. Parties' Contentions A. Complainant
Complainant asserts that as a result of its substantial use, since 1982, of the HIFONICS Trademark, it has acquired widespread public recognition and goodwill through the United States and elsewhere in the world.
Complainant asserts that because of its use of the HIFONICS Trademark, Respondent's use of the Domain Name is likely to give rise to confusion as to an association or affiliation between Complainant and Respondent. Complainant contends that its trademark rights pre-date Respondent's registration of the Domain Name by at least 15 years and that it has not authorised Respondent to use Complainant's Trademark, in association with the Domain Name or otherwise.
Complainant submits that Respondent has not used or made preparations to use the Domain Name in association with a bona fide offering of goods or services and that Respondent is not making a legitimate non-commercial or fair use of the Domain Name. Complainant suggests that Respondent is using the Domain Name for commercial gain to divert consumers seeking Complainant's products to the web sites of Complainant's competitors by way of a collection of “sponsored links”. Complainant asserts that the linked web sites are also directed to consumers in the U.S. where Complainant's Trademark is well-known.
Complainant also asserts that in addition to using the Trademark in the Domain Name, Respondent is also using Complainant's COLOSSUS, ZEUS and BRUTUS trademarks with the intention, as asserted by Complainant, to divert consumers seeking Complainant's products to the web site of Complainant's competitors for commercial gain.
Complainant contends that as HIFONICS is not descriptive or generic of audio equipment and products such as speakers and amplifiers, there would be no legitimate reason to acquire such a mark and use it to link to goods and services of Complainant's competitors. B. Respondent
The Respondent did not reply to Complainant's contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
Complainant provides evidence to establish that it is the owner of, inter alia, a U.S. trademark registration for the word HIFONCIS for a range of audio equipment and component parts and that it also has relevant trademark registrations in at least Europe, the People's Republic of China, India, Mexico and the Russian Federation. It has made extensive use of the Trademark and is entitled to rely upon its rights and interests by virtue of both registration and use of the Trademark.
Without the TLD suffix “.com”, the Domain Name is the same as the Trademark. It is thus both identical to and confusingly similar to the Trademark.
It is therefore found that Complainant has rights in the Trademark, that the Trademark in its entirety is found in the Domain Name, and that the requirements of paragraph 4(a)(i) of the Policy are met. B. Rights or Legitimate Interests
Respondent is not affiliated with Complainant in any way and has not been authorized by Complainant to use and register the Trademark or to seek the registration of any domain name incorporating the Trademark.
The registration and use of the Trademark clearly preceded the registration of the Domain Name. The Domain Name makes a clear and direct reference to the Trademark.
There is no evidence of Respondent's use of, or demonstrable preparations to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services. Instead, it is asserted by Complainant that Respondent has used the Domain Name to divert consumers to the web sites of Complainant's competitors by the use of so-called “sponsored links”.
These assertions, accompanied by a failure to deny is sufficient for the Panel to draw an inference that Respondent has no rights or legitimate interests in respect of the Domain Name. Complainant thus succeeds in meeting the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy requires that Respondent has registered and uses the domain name in bad faith.
Given the present record, including the nature of the Domain Name itself, and the lack of evidence to the contrary, the Panel infers that Respondent knew or must have known of Complainant's Trademark at the time it registered the Domain Name.
Complainant's submission that Respondent has registered the Domain Name for the purpose of providing sponsored links and thereby attracting users to the websites of competitors of Complainant raises an inference of bad faith conduct.
In the absence of contradiction or comment from Respondent the Panel concludes that Respondent both registered and used the Domain Name in bad faith in accordance with Paragraph 4(a)(iii) of the Policy. 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 Complainant.
Clive L. Elliott
Sole Panelist
Dated: September 15, 2009
Full & Egal Universal Law Academy