The Complainant is Boyd Flotation, Inc. of Maryland Heights, Missouri, United States of America, represented by Fredrikson & Byron, P.A., United States of America.
The Respondent is Noori net of Gyeongju Si, Gyeongsangbuk-Do, Republic of Korea. 2. The Domain Name and Registrar
The disputed domain name is registered with Korea Information Certificate Authority Inc. d/b/a DomainCa.com. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 27, 2010. On September 28, 2010, the Center transmitted by email to Korea Information Certificate Authority Inc. d/b/a DomainCa.com a request for registrar verification in connection with the disputed domain name. On September 30, 2010, Korea Information Certificate Authority Inc. d/b/a DomainCa.com transmitted by email to the Center its verification response, confirming that the Respondent is listed as the registrant and providing the contact details.
On October 4, 2010, the Center issued a Language of Proceeding notification, inviting comment from the parties. The Complainant submitted a request that English be the language of the proceeding on October 6, 2010. The Respondent did not respond to the Center’s Language of Proceeding notification. On October 11, 2010, the Center notified the parties of its preliminary decision to 1) accept the Complaint as filed in English; 2) accept a Response in either Korean or English; and 3) appoint a panel familiar with both languages mentioned above, if available and also advised the parties that the Panel has the authority to determine the language of the proceeding.
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 the Respondent of the Complaint, and the proceeding commenced on October 11, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was October 31, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 2.
The Center appointed Moonchul Chang as the sole panelist in this matter on November 8, 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. 4. Factual Background
Since the Complainant was established in 1977 in the United States of America by Dennis Boyd, it has manufactured quality sleep products. The Complainant currently sells over 400,000 mattresses worldwide each year and has become one of the largest manufacturers in the industry. The Complainant owns the trademark BOYD NATURAL FLEX (Reg. No. 2,433,210, registered on March 6, 2001) in the United States (Annex I to the Complaint).
The disputed domain name was registered on June 6, 2007 according to the WhoIs information of the concerned registrar. The disputed domain name currently resolves to a website which contains sponsored listings. 5. Parties’ Contentions A. Complainant
The Complainant contends that
(1) The disputed domain name incorporates the Complainant’s trademark BOYD NATURAL FLEX with the omission of the name of “Boyd”, and therefore the disputed domain name is confusingly similar to the Complainant’s trademark.
(2) There is no evidence that the Respondent is using the disputed domain name in connection with a bona fide offering of goods or services. Using a domain name for no purpose other than advertising links sponsored by third parties unrelated to the Complainant is not a bona fide offering goods and services. The Respondent has no rights or legitimate interests in the disputed domain name. There is also nothing in the WhoIs record to suggest that the Respondent is commonly known by the disputed domain name, but the Respondent is identified as “Noori net”. The Respondent’s name does not include the words “natural flex” and the Respondent’s business has nothing to do with the links to quality sleep products. In addition, the Complainant also has never authorized the Respondent to register the disputed domain name or use its trademark.
(3) The Respondent registered and is using the disputed domain name in bad faith to attract Internet users to the website at the disputed domain name and benefit from sponsored links for pay-per-click. In addition the website at the disputed domain name displays the following statement that: “The domain may be for sale by its owner!” It shows that the disputed domain name was registered for the purpose of selling it to others in excess of the Respondent’s out-of- pocket costs. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Language of Proceedings
According to paragraph 11 of the Rules, the language of the administrative proceeding is the language of the registration agreement unless otherwise agreed by the parties, or specified otherwise in the registration agreement, subject to the authority of the panel to determine otherwise. The language of the registration agreement here is Korean but the English version of the agreement is also available on the concerned registrar’s website (Annexes B and C to the Complaint)
The spirit of paragraph 11 is to ensure fairness in the selection of language by giving full consideration to the parties’ level of comfort with each language, the expenses to be incurred and the possibility of delay in the proceeding in the event translations are required and other relevant factors.
In this case, the Complainant requests that the language of proceeding should be English because (i) the nationality and place of residence of the Complainant is the United States, (ii) all of sponsored listings found on the website associated with the disputed domain name are in English, and (iii) the Respondent has been the subject of the following three UDRP proceedings, two of which were conducted in English without objection from the Respondent: Google Inc. v. Noori net, NAF Claim No.1003001311521; Daimler AG v. Noori net, NAF Claim No.1005001323972; and Credit Industriel et Commercial S.A. v. Noori net,WIPO Case No. D2010-0729.
The Respondent did not participate in this proceeding. Therefore, in consideration of the above circumstances and in the interest of fairness to both parties, the Panel hereby decides, under paragraph 11 of the Rules, that English shall be the language of the administrative proceeding in this case (See Siemens Aktiengesellschaft v. bak jogsub,WIPO Case No. D2006-0972; and Alstom, Bouygues v. Webmaster, WIPO Case No. D2008-0281). B. Identical or Confusingly Similar
The disputed domain name incorporates the essential part of the Complainant’s trademark BOYD NATURAL FLEX with the omission of the name of “Boyd”. In the present case, the Panel finds the disputed domain name is confusingly similar to the Complainant’s mark.
Accordingly, the Panel finds the first element under paragraph 4(a) of the Policy has been met by the Complainant. C. Rights or Legitimate Interests
The Panel considers that under paragraph 4(a)(ii) of the Policy, the overall burden of proof is on the Complainant. However, once the Complainant presents a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, the burden of rebuttal is transferred to the Respondent. (See Belupo d.d. v. WACHEM d.o.o.WIPO Case No. D2004-0110; Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455)
Firstly, the Panel considers that in the absence of any license or permission from the Complainant to use the Complainant’s trademark, no actual or contemplated bona fide or legitimate use of the domain name could reasonably be claimed. Such is the case here, in as much as the Complainant is widely known in sleep products and did not give any license or other permission to the Respondent to use the mark BOYD NATURAL FLEX.
Secondly, there is no evidence presented to the Panel that the Respondent is using the disputed domain name in connection with a bona fide offering of goods or services at present. In addition there is no evidence to suggest that the Respondent has been commonly known by the disputed domain name. The name “naturalflex” has no apparent association with the Respondent.
Accordingly, the Panel concludes that the Complainant has satisfied the second element under paragraph 4(a) of the Policy in the present case. D. Registered and Used in Bad Faith
The Policy itself sets out four sets of circumstances, evidence of which may establish bad faith (see Policy, paragraph 4(b)(i)-(iv)):
(1) Registering a domain name primarily to sell it for more than the registrant’s documented out-of-pocket costs (see Policy, paragraph 4(b)(i)).
(2) Registering a domain name to prevent the owner of the trademark from reflecting the mark in a domain name, where there is a pattern of such conduct (see Policy, paragraph 4(b)(ii)).
(3) Registering a domain name primarily to disrupt the business of a competitor (see Policy, paragraph 4(b)(iii)).
(4) Using a domain name to intentionally attempt to attract, for commercial gain, Internet users to the registrant’s 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 the registrant’s website or location or a product or service on the registrant’s website or location (see Policy, paragraph 4(b)(iv)).
Firstly, the website associated with the disputed domain name displays that the domain name may be for sale. In the Panel’s view, it shows that the disputed domain name was registered for the purpose of selling it to others in excess of the Respondent’s out-of- pocket costs.
Secondly, the Respondent’s activities are disrupting the business of the Complainant while the Respondent is seeking the attention of Internet users to accumulate click-through revenue.
Thirdly, the Respondent registered and is using the disputed domain name to attract Internet users to the website and benefit from sponsored links for pay-per-click. The Respondent had engaged in the similar conduct in at least two previous UDRP cases; Daimler AG v. Noori net, supra; and Credit Industriel et Commercial S.A. v. Noori net, supra.
Had it responded to the Complaint, the Respondent might have been able to present evidence or make an argument that its registration of the disputed domain name was not in bad faith. However, in the absence of any Response, the Panel draws an adverse inference on this point, and finds, under these circumstances, that the Complainant has established that the Respondent has registered and is using the disputed domain name in bad faith.
Based on the foregoing, the Panel is satisfied that the Resopndent’s bad faith registration and use have been sufficiently established with respect to the disputed domain name in accordance with paragraph 4(b) of the Policy. 7. Decision
For all the foregoing reasons, in accordance with paragraph 4(i) of the Policy and paragraph 15 of the Rules, the Panel orders that the domain name be transferred to the Complainant.
Moonchul Chang
Sole Panelist
Dated: November 30, 2010
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