WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Samsung Electronics Co., Ltd v. Pimser Electronics Ltd. (Samsung Turkey) Case No. D2009-1630 1. The Parties
Complainant is Samsung Electronics Co., Ltd of Gyeonggi-do, Republic of Korea, represented by You Me Patent & Law Firm, Republic of Korea.
Respondent is Pimser Electronics Ltd. (Samsung Turkey) of Ankara, Turkey appearing pro se. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with GoD, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 3, 2009. That same day the Center transmitted by email to GoD, Inc. a request for registrar verification in connection with the Domain Name. On December 4, 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 December 9, 2009. In accordance with the Rules, paragraph 5(a), the due date for the Response was December 29, 2009. On December 18, 2009, Respondent requested an extension of time to file a Response and in accordance with paragraph 5(d) of the Rules the Center extended the due date to January 9, 2010. The Response was filed with the Center on January 6, 2010.
The Center appointed Harrie R. Samaras, Dae-Hee Lee and David H. Tatham as panelists in this matter on February 2, 2010. The Panel finds that it was properly constituted. Each member of 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.
There are two preliminary matters that the Panel addresses here.
First, in an email dated December 18, 2009 and in Paragraph V of its Response (“Other Legal Proceedings”), Respondent requests that this proceeding be suspended until after a decision is rendered in a lawsuit that Respondent filed against Complainant in the 6th Civil Court of Peace of Ankara, Republic of Turkey. In an email dated December 22, 2009 and in Paragraph IV of Complainant's supplemental submission (Other Legal Proceedings), Complainant responds that this proceeding has no relation to the pending case in Turkey, which is a breach of contract case requesting compensation of damages. Paragraph 18 of the Rules provides that “(a) In the event of any legal proceedings initiated prior to or during an administrative proceeding in respect of a domain-name dispute that is the subject of the complaint, the Panel shall have the discretion to decide whether to suspend or terminate the administrative proceeding, or to proceed to a decision.” Based upon the information provided to the Panel from both parties it appears that the case filed by Respondent against Complainant in the Turkish court involves both a different claim (breach of contract) and relief (money damages) from the claim and relief sought by Complainant against Respondent in this proceeding under the Policy. Based upon these facts the Panel concludes that there is no reason why this case should be suspended in favor of the Turkish case and Respondent's arguments have not convinced us otherwise.
Second, Complainant filed what it calls a “rejoinder” to Respondent's Response. Complainant asserts that it has filed this supplemental submission “to prove the Respondent's statements are false.” See 1, Rejoinder. In its supplemental submission, however, Complainant states, candidly:
The Complainant acknowledges submitting the Complaint before the Center without full knowledge of the specific histories between the Complainant and the Respondent. Our statement that the Respondent is not affiliated with the Complainant in the Complaint, however, is still true, and no mention of a past relationship between both parties is not an attempt to deceive WIPO, but is because the Complainant's internal communication was not well coordinated before filing the Complaint due to how large the company is.
See Conclusion, Rejoinder. In Paragraph 21 of its Complaint, Complainant states: “the information contained in this Complaint is to the best of the Complainant's knowledge complete and accurate.”
Neither the Policy nor the Rules, provide for Supplemental Filings by either party except in a few narrow instances. The Panel has the sole discretion to determine the admissibility of the Supplemental Filing.
The Panel holds that it will consider Complainant's supplemental submission on the ground that it purports to prove that “Respondent's statements are false,” and in this fact-intensive case, the Panel concludes Complainant may not have been able to anticipate all of the arguments or facts asserted by Respondent. Notwithstanding that ruling, the Panel wants to make clear that by considering Complainant's supplemental submission in this case, it is not countenancing that a Complainant file its Complaint before performing the necessary due diligence to support its claim for relief. 4. Factual Background
Complainant is Samsung Electronics Co., Ltd, an internationally known company in the business of manufacturing and selling a variety of goods ranging from consumer electronics such as refrigerators, TVs and videos, to electronic gadgets such as cellular phones, computers and printers. Complainant owns numerous trademark registrations for SAMSUNG in various formats, including United States Registration Nos.: 1,920,552 (registered in 1995); 2,214,833 (registered in 1998); 1,920,554 (registered in 1998); 1,164,353 (registered 1981) (collectively the “SAMSUNG Mark”). According to Interbrand's rankings, the SAMSUNG Mark was ranked 21st in 2007 and 2008, while it was ranked 20th in 2005 and 2006.
Respondent registered the Domain Name on February 28, 2003. 5. Parties' Contentions A. Complainant
The Domain Name is identical or at least confusingly similar to the SAMSUNG Mark.
Respondent is not affiliated with Complainant in any way. Complainant has not authorized Respondent to use and register its SAMSUNG Mark or to seek the registration of any domain name incorporating the Mark.
Respondent is not only using the SAMSUNG word mark but also the corporate logo in conjunction with the sale of electronics, such as CD cameras, monitors, DVR, which are closely related to Complainant's main business activities. Also, Respondent had an unauthorized link to Complainant's catalogue and ISO Certificates. Respondent has inserted its logo into Complainant's catalogue presumably because Respondent wanted to be recognized as a company that has a close relationship with Complainant. Respondent advertises and sells other companies' products, which shows that Respondent has not been an authorized user of the SAMSUNG Mark or the Domain Name. Nevertheless, Respondent registered the Domain Name and is operating the associated website with the intention for consumers to believe that the goods or services advertised on the website belong to Complainant or were affiliated with Complainant. Further, Respondent's use of the Domain Name would lead to the misconception that Respondent is an official Turkish Subsidiary of Complainant since the Domain Name consists of Samsung plus Turkey, considering that Complainant has had the registered mark for in Turkey since 1993 and has been doing business worldwide, including in Turkey. Respondent registered the Domain Name in an attempt to have a free-ride on Complainant's SAMSUNG Mark by attracting Internet users to the corresponding website for commercial gain and with the purpose of disrupting the business of Complainant. B. Respondent
Respondent accepts that the Domain Name could be identical in part or confusingly similar to the SAMSUNG Mark.
Respondent has rights or legitimate interests in the Domain Name. Respondent, Pimser Proje Elektronik İç ve Dış Ticaret Ltd. Şti., was established on April 21, 2003. Respondent is a Distributor/Dealer in Electronic Security Sector in Turkey and sells Electronic Security Products of Samsung Electronics (South Korea), Samsung Techwin (South Korea), LG (South Korea), Digital Watchdog (USA), Infinova (USA) and SOEST (China) to approximately 130 companies in Turkey and Turkish Republic of Northern Cyprus.
Complainant has a relationship with Respondent. Before Respondent was established, there was no official distributor of Samsung Electronics CCTV (closed circuit television) products in Turkey. The Turkish market did not know that Samsung had CCTV products. Respondent signed a Distributor Agreement on February 24, 2003 with GVI Security Inc., (“GVI”), thus obtaining Turkey in its territory. GVI issued Respondent an Exclusive Authorized Distributor Certificate, an Exclusive Authorized Repair Center Certificate, an Exclusive Distributorship Notification, and an Authorization with Apostille Approval. After receiving these Respondent performed the necessary procedures for importing the Samsung products into Turkey, and it prepared Turkish user manuals for all CCTV products. Respondent also developed the web site associated with the Domain Name to promote and introduce Samsung's CCTV products. Respondent inserted only the original documents of Samsung's products in the web site to make the brand name well-known in the Turkish CCTV market. Also, Respondent visited many security companies in Turkey to introduce and market Samsung's CCTV products. Respondent advertised the same products that Samsung advertised on its global web site, i.e. “”, and has never given wrong or misleading information.
Respondent believes that as a result of its success in Turkey, Mr. Öztaş from Samsung Electronics Turkey Liaison Office contacted it to express that Samsung Electronics' Headquarters would like to contact Respondent for directly importing the Samsung CCTV products from South Korea. They requested from Respondent reports about the Turkish market, competitor brand names and growth volumes. With GVI's consent, Respondent supplied the requested reports. On February 26, 2005, Mr. Shin from Samsung Electronics Headquarters requested that GVI sign a waiver regarding the Turkey territory as a pre-requisite to negotiating and signing a distributorship agreement with Respondent. Respondent received a letter from GVI stating that “The agreement between Pimser Ltd. Şti. and GVI Security Inc. dated 02/24/2003 will be no longer valid from the date Samsung Electronics Ltd. signs a distributor agreement with Pimser Ltd. Şti.” Respondent sent this letter to Complainant.
As a result of the negotiations on March 8, 2005, Respondent began cooperating with Samsung Electronics Headquarters. As evidence of this, Respondent points to the following evidence: (1) an Authorization Letter issued in the name of Respondent by Samsung Electronics Headquarters; (2) emails it sent between 2005 to 2006, to Samsung Electronics Headquarters and Turkey Liaison Office using the “xxx@” e-mail address; (3) Respondent requested visuals and documents to update its web site from Complainant and Complainant has supplied those materials; (4) Complainant inserted the name and the link to Respondent's web site in the global networks page of its web site “” (this is certified by an expert report obtained from the case ongoing in Turkey); and (5) a “Pimser Sales Record Report” sent by Complainant as of 2005 year end.
Respondent has introduced and promoted the Samsung Electronics CCTV products, which were not known and had no sales and market share in Turkey until 2003, and has increased their market share so that today they make an export to Turkey at a value of approximately USD10 million.
Respondent did not register or use the SAMSUNG Mark in bad faith. Respondent did not register the Domain Name primarily for the purpose of selling, renting, or otherwise transferring it for valuable consideration in excess of Respondent's out-of-pocket costs directly related to the Domain Name. Respondent also did not register the Domain Name to prevent Complainant from reflecting the SAMSUNG Mark in a corresponding official domain name. An official web site in a country mostly ends with a suffix of that country, which is “.tr” for Turkey in this case. Respondent did not register such a domain name. On the contrary, a subsidiary of Samsung Electronics Co., Ltd., Samsung Electronics İstanbul Pazarlama ve Ticaret Ltd. Şti., has registered the domain name on March 27, 2003, which is 27 days after the date Respondent registered the Domain Name. Even Samsung's call center “4447711”, identified on the subsidiary's web site and elsewhere, diverts customers to Respondent for CCTV products.
Complainant and Respondent are not competitors and Respondent did not register the Domain Name primarily to disrupt Complainant's business. Respondent has intended to further Complainant's business using the Domain Name not to be a competitor of Complainant. Respondent has truthfully used the SAMSUNG Mark in connection with the sale of the goods or services that are properly identified by that Mark and, thus, have made a fair use of the Mark. Respondent did not register the Domain Name to attempt to attract for commercial gain, Internet users to Respondent's web site by creating a likelihood of confusion with Complainant's SAMSUNG mark. The Domain Name was intentionally registered to introduce Internet users to Samsung's CCTV products. Under “exhaustion of rights” law, Respondent has used the SAMSUNG mark as a distributor to sell SAMSUNG CCTV products in a way that is not damaging to Complainant's goods.
It is bad faith that Complainant claims there is no relationship between it and Respondent and that it has requested transfer of the Domain Name because Respondent has spent and is still spending utmost effort for Samsung to be the leader in the Turkish CCTV market. The relationship between Complainant and Respondent began when Complainant requested Respondent stop working with GVI and start working directly with it. Complainant has also committed bad faith by authorizing Respondent to distribute and sell its goods, communicating with Respondent using the email address xxx@, declaring Respondent as the official distributor for Turkey, and inserting a link to its web site “www.” in its official global web site.
With all this evidence of bad faith Respondent asks the Panel to make a finding of reverse domain name hijacking. C. Complainant's Supplemental Submission
With regard to the exclusive distributorship agreement Complainant responds: (1) the Distribution Agreement was with GVI Security Inc., not Complainant. Respondent has failed to demonstrate an Exclusive Distribution Agreement with Complainant; (2) Respondent has only submitted copies of documents executed by GVI not by Complainant since the parties never agreed to such an arrangement; and (3) Complainant has not provided Respondent with Complainant's products since December 2005, thus Respondent has not distributed the Complainant's products in Turkey since then. Complainant acknowledges that it was in business with Respondent during 2005 in relation to the sale of its products in the Turkish market, but Respondent was not the sole distributor. Another Turkish company, Koyuncu Electronics, also acted as a Turkish distributor since May 2005. These facts are supported by a document submitted by Respondent. Complainant decided to stop supplying their products to Respondent because of the frequent delay in payment by Respondent. Respondent made of record an email on November 28, 2005, evidencing Respondent's last order. Since then, Complainant has not been associated with Respondent in any way.
With regard to Complainant providing visuals and documents (e.g., product catalogs or ISO Certificate) to Respondent and Respondent providing its sales report to Complainant, such exchanges are usual between product distributors and product providers and, these exchanges occurred in 2005. The emails Respondent made of record are all dated in that year. Because Respondent has had no relationship with Complainant since the end of 2005, its use of the materials provided by Complainant and of the Domain Name is not legitimate or fair. On March 28, 2007, Complainant sent an e-mail to Respondent requesting that it stop using the SAMSUNG Mark and logo on its website. Respondent has not done so.
With regard to the testimony of the expert from the case in Turkey, Complainant sites the following:
By taking into the consideration of these data, it is understood that Pimser Electronic has not been indicated and shown as outlet in the website of Samsung. RESULT AND CONVICTION:
As it is attempted to be clearly expressed hereinabove:
1) In the website of http://samsung/com/TR/Support/SalesChannels/index.htm that the sales channel of Samsung Electronics in Turkey has introduced, Pimser Electronic has not been described as sales channel.
2) On the other hand, in the web site of http://samsung/com/TR/Support/SalesChannels/index.htm of Samsung Electronic in Turkey that has requested to be determined, Pimser Electronics has described as regional distributor.
Thus, Respondent's company, Pimser Electronic, is not even an “outlet” of Complainant. Further, as stated by Respondent, it signed the Distributor Agreement with GVI on February 24, 2003, which is 4 days earlier than the date it registered the Domain Name which means Respondent already knew of the SAMSUNG Mark before registering the Domain Name. Registering the Domain Name without Complainant's consent is an unlawful act itself regardless of whether there was a later sales contract between the parties. Furthermore, Respondent has used the Domain Name with the intention of gaining consumers to press Complainant to make an agreement to distribute Complainant's products or to sell the Domain Name in excess of Respondent's costs directly related to it. These expectations are reasonable since general consumers believe the goods or services on the website belong to Complainant or were affiliated with Complainant in some way because Respondent is using the logo , catalogs, and ISO Certificate.
That Complainant owns a registration for “” does not show that Complainant has no interest in the Domain Name. Respondent's use of the Domain Name may mislead consumers into believing Respondent is Complainant's official subsidiary or has some relation to Complainant regardless of Complainant's official website.
Complainant contends that with regard to Respondent's fair use argument, although parallel import or resale of genuine products will be regarded as a “Fair Use,” using a domain name that leads to confusion about the relationship with the rightful owner, such as to the source, sponsorship or affiliation, as here, will not be regarded as a “Fair Use”.
Respondent alleges its website should be considered approved by Complainant because materials used on it have been supplied by Complainant and their use has contributed to Complainant's business. Considering the case Respondent has brought against Complainant in Turkey alleging Respondent has an Exclusive Distributorship and Complainant has violated the Agreement, it is obvious Respondent is intentionally attempting to secure commercial gain by pressuring Complainant to appoint Respondent as the sole Distributor in the Turkish market. Therefore, Respondent must be regarded as having used and registered the Domain Name in bad faith. 6. Discussion and Findings
Paragraph 4(a) of the Policy requires that a complainant prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(i) the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) the respondent has no rights or legitimate interests in respect of the domain name; and
(iii) the domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
Based upon Complainant's uncontested evidence of its use of the SAMSUNG Mark and its United States trademark registrations, the Panel concludes that Complainant has rights in the SAMSUNG Mark.
The Domain Name incorporates in its entirety Complainant's SAMSUNG Mark. Where a domain name incorporates a complainant's mark in its entirety, this is sufficient to establish that the domain name is identical or confusingly similar for purposes of the Policy. See Kabushiki Kaisha Hitachi Seisakusho (d/b/a Hitachi Ltd) v. Arthur Wrangle,WIPO Case No. D2005-1105. Adding the geographic term “Turkey” to Complainant's SAMSUNG Mark does not alleviate the confusion. In fact, it is likely to increase the likelihood of confusion because Complainant conducts business in Turkey. Moreover, in its Response, Respondent states that it “accepts that the Domain Name could be identical in part or confusingly similar to the trade mark of the Complainant.”
For the foregoing reasons, the Panel finds that paragraph 4(a)(i) of the Policy has been satisfied. B. Rights or Legitimate Interests
Complainant must prove Respondent has no rights to or legitimate interests in the Domain Name. Once a complainant makes a prima facie showing that a respondent has no rights or legitimate interests in a domain name, the burden of production on this factor shifts to the respondent to rebut the showing. The burden of proof, however, remains with Complainant. See, Document Technologies, Inc. v. International Electronic Communications Inc.,WIPO Case No. D2000-0270. Pursuant to paragraph 4(c) of the Policy, “[a]ny of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate [Respondent's] rights or legitimate interests to the domain name for purposes of paragraph 4(a)(ii):
(i) before any notice to you of the dispute, your 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; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
In its Complaint, Complainant alleged that Respondent is not affiliated with it in any way nor has it authorized Respondent to use the SAMSUNG Mark in any manner including in a domain name. Thus, the Panel finds Complainant made a prima facie showing that Respondent has the burden to rebut.
Respondent rests its claim of rights or legitimate interests in the Domain Name on the distributor agreement with GVI and, after that agreement was terminated, various business dealings directly between Respondent and Complainant. Based on the evidence of record the Panel finds: (1) the only distributor agreement is the one that existed between Respondent and GVI. Respondent did not produce such an agreement between it and Complainant; (2) Complainant ceased providing products to Respondent at the end of 2005; and (3) all but one email Respondent relies upon to show business dealings between it and Complainant are dated in 2005. The exceptional email dated in 2006 appears to have requested Respondent's sales records from 2005. It appears that after 2005, Complainant decided to stop doing business with Respondent and, by that time, the distributor agreement with GVI was no longer in effect. Furthermore, on March 28, 2007, Complainant sent an email to Respondent requesting that it stop using the SAMSUNG Mark and logo on its website and in its “website address”. Thus, the Panel concludes that by the end of 2005, when the distribution agreement with GVI was no longer effective and Complainant ceased doing business with Respondent, Respondent lost any authority it previously had to use the SAMSUNG Mark. And, certainly by the date of Complainant's cease and desist email, Respondent would have been on notice that it had no authorization from Complainant to use the SAMSUNG Mark for any purpose, including in the Domain Name. Any further use was at Respondent's peril.
The Panel also finds that Respondent is making a commercial use of the Domain Name with intent for commercial gain in contravention of subparagraph (iii) above. There is no dispute that Respondent began using the Domain Name and the associated website for commercial purposes – to market and sell Samsung products – at a time when it was an authorized distributor. Insofar as Respondent is no longer an authorized distributor of Samsung products or authorized to use the SAMSUNG Mark, the question arises why would Respondent insist on continuing to use the Domain Name and the associated website?
When new or old customers looking for SAMSUNG brand products or Complainant (having typed “Samsung” into a search engine) arrive at Respondent's website, they are confronted with a website that would lead them to believe Respondent is affiliated with Complainant (e.g., display of the SAMSUNG Mark and logo, reference to Respondent as a distributor and authorized dealer of Complainant, catalog showing Respondent's and Complainant's logos). Now, Respondent has contact with customers it would not have had, but for its infringing use of the Domain Name and the SAMSUNG Mark. Insofar as Respondent sells products of manufacturers other than Samsung, including competitors of Complainant, Respondent has the potential to gain commercially from its use of the infringing Domain Name.
For the foregoing reasons, the Panel finds that paragraph 4(a)(ii) of the Policy has been satisfied. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states nonexclusive circumstances which, if found, shall be evidence of the registration and use of the domain name by Respondent in bad faith:
“(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of the complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other on-line location, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.”
With regard to whether Respondent registered the Domain Name in bad faith, the evidence shows Respondent signed the Distributor Agreement with GVI on February 24, 2003, which is four days earlier than the date it registered the Domain Name. Accordingly, it seems to the Panel quite conceivable that Respondent may have registered the Domain Name believing that it was an authorized distributor of Complainant's products with rights to use the SAMSUNG Mark. Thus, the Panel disagrees with Complainant that Respondent's registration of the Domain Name was an illegal act per se because it was done without Complainant's consent. Having said that, the Panel also notes that in some cases the fact that a distributor agreement has ended has been found by prior panels to be a relevant consideration in assessing a respondent's good faith in registering a domain name or otherwise continuing to hold a domain name registration following the expiration of such a distributorship agreement. See e.g. UVA Solar GmbH & Co K.G. v. Mads Kragh,WIPO Case No. D2001-0373; Exel Oyj v. KH Trading, Inc.,WIPO Case No. D2004-0433 and R&M Italia SpA, Tycon Technoglass Srl v. EnQuip Technologies Group, Inc., D2007-1477. That Respondent may originally have registered the Domain Name without bad faith does not necessarily preclude Complainant from succeeding under the Policy where for example there is continuing maintenance of a registration combined with continuing abusive use. The Panel is persuaded by cases such as Ville de Paris v. Jeff Walter,WIPO Case No. D2009-1278 and Zerospam Security Inc. v. Internet Retail Billing, Inc., Host Master,WIPO Case No. D2009-1276 that what may originally have been good faith registration followed by bad faith use may in certain cases still permit Complainant to carry its burden under the Policy (e.g. when in light of all the circumstances of the case, it may still be found that Respondent was acting in bad faith).
In this case, Respondent is using the Domain Name that it admits is confusingly similar to Complainant's SAMSUNG Mark. Furthermore, as the Panel determined above, since at least the end of 2005 (when the distribution agreement was terminated and Complainant stopped doing business with Respondent) or at the latest since 2007 (when Complainant requested Respondent stop using the SAMSUNG Mark) Respondent has had no rights or legitimate interests in the Domain Name. Thus, Respondent's continued use was at the very least to attract Internet users to its website, which contains products of Complainant's competitors, for commercial gain. As further evidence of bad faith, Respondent failed to cease using the SAMSUNG Mark, logo or Domain Name in conjunction with its website after receiving Complainant's email requesting that it do so.
The Panel therefore holds that Complainant has established paragraph 4(a)(iii) of the Policy. D. Reverse Domain Name Hijacking
Respondent requests the Panel to make a finding of reverse domain name hijacking because of Complainant's alleged bad faith. Paragraph 15(e) of the Rules provides:
“If after considering the submissions the Panel finds that the complaint was brought in bad faith, for example in an attempt at Reverse Domain Name Hijacking or was brought primarily to harass the domain-name holder, the Panel shall declare in its decision that the complaint was brought in bad faith and constitutes an abuse of the administrative proceeding.”
Paragraph 1 of the Rules defines Reverse Domain Name Hijacking as “using the Policy in bad faith to attempt to deprive a registered domain name holder of a domain name”.
Respondent's claim must fail because it has not proved that Complainant commenced this proceeding in bad faith. Complainant has long-standing rights and United States registrations for the SAMSUNG Mark and, for all the reasons discussed above, the Panel declines to enter a finding of reverse domain name hijacking. 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.
Harrie R. Samaras
Presiding Panelist
Dae-Hee Lee
Panelist
David H. Tatham
Panelist
Dated: February 16, 2010
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