WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Platon A/S v. master edu, platon/ Kim, Kyong-hwan/ C Case No. D2010-0982 1. The Parties
The Complainant is Platon A/S of København, Denmark, represented internally.
The Respondent is master edu, platon of SeongNam-si, GyeongGi-do, Republic of Korea; Kim, Kyong-hwan of the Republic of Korea; C of Canada. 2. The Domain Name and Registrar
The disputed domain name, (the “Domain Name”), is registered with Tucows Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 15, 2010 naming Kim, Kyong-hwan as the Respondent. On June 16, 2010, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On the same day, the Registrar transmitted by email to the Center its verification response naming the Respondent as the registrant and providing the contact details.
In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amended Complaint on June 22, 2010. The Center verified that the Complaint together with the amended 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 June 23, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was July 13, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on July 14, 2010.
The Center appointed Tony Willoughby as the sole panelist in this matter on August 19, 2010. 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 Complaint in its original and amended forms identifies an issue as to the identity of the Respondent. In early May, 2010 the Domain Name was held in the name of Kim, Kyong-hwan. Following correspondence from the Complainant the registration was put into the name of a privacy service, C. In response to the registrar verification request from the Center in June, the Registrar identified the Respondent as the registrant. Necessarily, the bulk of the Complaint deals with the time when the Domain Name was held in the name of the first of those registrants. No Response has been filed by any of the above-named potential respondents.
The circumstances, represented by the various WhoIs search results and the unchallenged evidence of the Complainant, are such that in the view of the Panel this is likely to be a case of “cyberflight”. For the purposes of this decision the Panel treats all three registrants, Kim, Kyong-hwan, C and the Respondent, as one and henceforth uses the term “Respondent” to identify all three. 4. Factual Background
The Complainant is a Danish company. It is the proprietor of various trade mark registrations of PLATON for goods and services relating to the management of data. The earliest of those registrations is a Danish registration (No. 923597) with a filing date of December 28, 1999 and a registration date of March 27, 2000.
The Domain Name was registered in the name of the Respondent on either July 15 or July 16, 2001 (the WhoIs database search results vary).
The Panel was unable to access any website connected to the Domain Name, but the unchallenged evidence of the Complainant is that the Domain Name was connected to a commercial directory site.
The Respondent is also the proprietor of the domain names, (August 2001) and (October, 2001), and both of those domain names are connected to commercial directory sites featuring advertising links.
On June 13, 2005, the Respondent emailed the Complainant and others who were said (by the Respondent) to have expressed interest in the Domain Name offering the Domain Name up for auction with an opening bid price of USD80,000. The Complainant did not participate in the auction and the Domain Name was still in the hands of the Respondent on September 26, 2006 when the Complainant emailed the Respondent seeking transfer of the Domain Name at a price to be agreed at a significantly lower level. In a further exchange the Complainant offered USD8,000. The offer was rejected but the Respondent reduced the price to USD60,000. No transfer took place.
In further exchanges in March and April another attempt was made by the Complainant to acquire the Domain Name, but the Respondent's price (now reduced to USD45,000) was still too high for the Complainant. 5. Parties' Contentions A. Complainant
The Complainant contends that the Domain Name is identical or confusingly similar to its PLATON registered trade mark, that the Respondent has no rights or legitimate interests in respect of the Domain Name and that the Domain Name was registered and is being used in bad faith within the meaning of paragraph 4(b)(i) of the Policy. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings A. General
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name, the Complainant must prove each of the following, namely that:
(i) The Domain Name is identical or confusingly similar to a trade mark 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 was registered and is being used in bad faith. B. Identical or Confusingly Similar
The Domain Name comprises the Complainant's registered trade mark PLATON and the generic “.com” top-level domain suffix. For the purposes of assessing identity and confusing similarity under this head it is well-established that the domain suffix may be ignored.
The Panel finds that the Domain Name is identical to the Complainant's registered trade mark. C. Rights or Legitimate Interests
There is nothing before the Panel to suggest that the Respondent has any rights or legitimate interests in respect of the Domain Name. The Complainant has not given the Respondent permission to use its trade mark, the Respondent is not named “platon”. In so saying the Panel notes that the last minute change to the Registrar's WhoIs database identifies “master edu, platon” as the registrant after the Complaint had been lodged with the Center. However, as indicated in paragraph 3 above, the circumstances surrounding the ownership of the Domain Name around that time have led the Panel to believe that this was a case of cyberflight, i.e., a bad faith attempt to frustrate the present UDRP proceedings and mislead the Panel.
The use of the Domain Name to connect to a commercial directory site does not appear to have had any connection with anyone or anything named “Platon”.
In the absence of any explanation from the Respondent the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name. D. Registered and Used in Bad Faith
The Complainant contends that the Respondent registered the Domain Name with a view to selling the Domain Name to the Complainant at a profit. In support of that allegation the Complainant refers to the approach made to the Complainant in 2005 inviting the Complainant to participate in an auction with an opening price of USD80,000 (see paragraph 4 above).
Whether or not that be the case, clearly the Respondent registered the Domain Name with a view to monetizing it by connecting it to a commercial directory site featuring advertising links.
However, registering a domain name with a view to commercializing it is not of itself an abuse under the Policy. Nor is it necessarily an abuse to register and use a domain name featuring the trade mark of another. For a complaint to succeed under the Policy the respondent must have had the complainant in mind at time of registration.
Question: Did the Respondent have the Complainant in mind at time of registration of the Domain Name?
On one view, at first sight one might have thought it unlikely that a registrant with an address in Korea registering a domain name in 2001 had in mind a Danish company, which had only registered its trade mark in 1999/2000. One might also query why if the Respondent registered the Domain Name with a view to selling it to the Complainant at a profit, he left it 4 years before contacting the Complainant.
On the other side of the coin, why would a registrant register a domain name in which he has no apparent rights or legitimate interests for a use which has no apparent connection with the name? Why did the Respondent say in the course of his correspondence with the Complainant that “Platon is a very rare and precious domain to us” and seek prices varying between USD45,000 and USD80,000 for transfer of the Domain Name, yet make no attempt to defend this Complaint? Why, instead, did the Respondent seek to evade his responsibilities by way of cyberflight?
In all the circumstances, the Panel concludes that the Respondent's behaviour can only be explained by a realization that he would be unable to defend this Complaint successfully.
The Panel finds on the preponderance of the evidence before him, that the Respondent registered the Domain Name, knowing it to be the trade mark of the Complainant and with the intention of exploiting it commercially either by selling it to the Complainant at a profit or by linking it to a revenue earning directory site.
The Panel finds that the Domain Name was registered and is being used in bad faith within the meaning of either paragraph 4(b)(i) or 4(b(iv) 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 the Complainant.
Tony Willoughby
Sole Panelist
Dated: July 31, 2010
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