WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION s. Oliver Bernd Freier GmbH & Co. KG v. alswls3 Case No. D2009-1210 1. The Parties
The Complainant is s. Oliver Bernd Freier GmbH & Co. KG of Rottendorf, Germany, represented by Weber & Sauberschwarz, Germany.
The Respondent is alswls3 of Seoul, Republic of Korea. 2. The Domain Name and Registrar
The disputed domain name is registered with Gabia, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 11, 2009. On September 11, 2009, the Center transmitted by email to Gabia, Inc. a request for registrar verification in connection with the disputed domain name. On September 14, 2009, Gabia, Inc. 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 September 18, 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 according to the registrar, the language of the registration agreement is Korean, and that the Complaint was submitted in English. In addition, the Center specifically requested the Complainant to submit 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) the Complaint translated into Korean; or (3) 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 September 25, 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 September 23, 2009, the Complainant reiterated its request for English to be the language of the proceeding. The Respondent did not submit any response or material.
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 proceedings commenced on September 29, 2009. In the same notification, the Center informed 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, paragraph 5(a), the due date for the Response was October 19, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on October 20, 2009, again, in both Korean and English.
The Center appointed Professor Ilhyung Lee as the sole panelist in this matter on November 9, 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.
As discussed herein, the Panel determines that the language of the proceeding will be English. 4. Factual Background
The Complainant is a fashion company, whose primary market is Germany, with recent expansion into other countries in Europe. The Complainant's fashion articles are sold in its own stores, department stores, and fashion boutiques, as well as over the Internet. The Complainant has used variations of the mark “COMMA,” for its products, and obtained registrations of the mark in Germany and the Eurpean Community, including one registered on July 3, 2006. The Complainant had previously registered the domain name on September 25, 2001, for its Internet operations.
The Respondent registered the disputed domain name on October 14, 2008. 5. Parties' Contentions A. Complainant
The Complainant contends that: (i) the disputed domain name is identical or confusingly similar to the mark in which the Complainant has rights; (ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) the domain name has been registered and is being used in bad faith. B. Respondent
The Respondent did not reply to the Complainant's contentions. Under paragraphs 5(e) and 14(a) of the Rules, the Panel may decide the dispute based on the Complaint. The Panel may also draw appropriate inferences from the Respondent's default, under paragraph 14(b). 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. The language of the registration agreement is Korean. 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”. The Complainant requests that the language of the proceeding be English, and the Panel agrees.
After receiving the Complaint submitted in English, the Center notified the parties, in both Korean and English, of the Center's procedural rules regarding the language of the proceeding. The Center informed the Respondent that it may object to English as the language of the proceeding. The Respondent did not respond to the Center's notification, nor did it respond to the Complaint. Under the circumstances, with only the Complainant remaining, the Panel determines that English will be the language of the deliberations. A. Identical or Confusingly Similar
Under paragraph 4(a)(i) of the Policy, the Complainant must show that the disputed domain name is identical or confusingly similar to the mark in which the Complainant has rights. Although the word “comma” may be seen as a common descriptive name for the punctuation mark (“,”), when “comma,” is used in connection with fashion articles, it is not a generic term, but instead, a distinctive mark. The Complainant's use of “COMMA,” for its products indicates rights in a protectible mark. The Panel also determines that the disputed domain name is identical or confusingly similar to the Complainant's mark; the disputed domain name merely adds “shop” to a distinctive mark used in commerce.
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 name. The burden thus shifts to the Respondent to demonstrate any such rights or legitimate interests. The Respondent has defaulted, and not submitted any material in its cause. The Panel is unable to ascertain any evidence that would demonstrate the Respondent's rights or legitimate interests in the disputed domain name, as described in paragraph 4(c) of the Policy, or otherwise.
The second element is established. C. Registered and Used in Bad Faith
Paragraph 4(b)(iv) of the Policy states that bad faith in the registration and use of a domain name is shown when the Respondent, by using the domain name, has “intentionally attempted to attract, for commercial gain, Internet users to [the Respondent's] website . . ., by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement” of the Respondent's website or of products on the website.
As of September 23, 2009, after the Complainant submitted its Complaint to the Center, Internet users who resorted to the disputed domain name were taken to an Internet site that contained snap shots of a number of fashion items (including clothing, shoes, and purses) with descriptions for each item (in English) and the respective price (in Korean Won). At the top of the site was the notation “Enjoy Shopping! Comma shop.”
It appears to the Panel that the Respondent selected a domain name containing the Complainant's mark “COMMA,” for an Internet site whose content advertises the sale of products that are closely related to the Complainant's own fashion articles.
The requisite bad faith element under paragraph 4(a)(iii) of the Policy is demonstrated. 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.
Thus, the Panel here reaches the same result seen in s. Oliver Bernd Freier GmbH & Co. KG v. Su Chin Tsai,WIPO Case No. D2009-1202, involving the disputed domain name therein, .
Ilhyung Lee
Sole Panelist
Dated: November 23, 2009
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