The Complainant is GRUPORPP S.A. of Lima, Peru, represented by Iriarte & Asociados, Peru.
The Respondent is RPP of Gwangju, 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 February 24, 2011. On February 25 and March 1, 2011, 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 and a reminder. On March 2, 2011, 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 March 2, 2011, the Center issued a Language of Proceedings notification, inviting comments from the parties. The Complainant submitted a request that English be the language of the proceedings and the Respondent submitted a request that Korean be the language of the proceedings on March 2, 2011 and March 3, 2011 respectively. On March 15, 2011, 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 proceedings.
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 proceedings commenced on March 15, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was April 4, 2011. The Respondent did not submit any formal response, but did send an email communication regarding the address used to send Written Notice on March 15, 2011. The Center has confirmed that it used the postal address available in the WhoIs for the Respondent. Accordingly, the Center notified the Respondent’s default on April 5, 2011.
The Center appointed Ho-Hyun Nahm as the sole panelist in this matter on April 14, 2011. 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
The Complainant is a Peruvian company authorized by the Ministry of Transport and Communications of Peru (MTC) to provide the service for broadcasting, an activity that it pioneered and has been developed with clear leadership from the year 1963 to today. The Complainant also has a recognized news portal in Peru “www..pe”, which provides local information, politics, sport, entertainment, technology, national and international, as well as the option to listen to the radio station RPP in the form of live streaming. The Complainant also has a television signal called RPP, which transmits its signal in the Peruvian territory.
The Complainant owns trademark registrations in Peru for the mark RPP.COM and other marks where the portion “RPP” constitutes a prominent element. Among them, the particulars of the mark RPP.COM are as follows:
Trademark: RPP.COM
Class and services: 38: telecommunications services and related services.
Registration number: 26300
Registration date: June 27, 2001
Duration: June 27, 2011
The disputed domain name was created on January 10, 1996 and last updated on March 2, 2011. 5. Parties’ Contentions A. Complainant
The disputed domain name is identical or confusingly similar to the Complainant’s trademark RPP.COM.
The Respondent has no rights or legitimate interests in respect of the disputed domain name.
The Complainant further submits that the disputed domain name was registered and is being used in bad faith as the Respondent’s webpage at the disputed domain name offers links to the Complainant’s competitors’ websites, thereby diverting Internet users who are looking for the Complainant’s information and services on the Internet for commercial gain and that the Respondent offered to sell the disputed domain name for the price which remarkably exceeds its out-of-pocket expense. B. Respondent
The Respondent did not reply to the Complainant’s contentions. However, the Respondent sent email communications to the Center stating his objection to the Complainant’s request to proceed in English. 6. Discussion and Findings A. Language of Proceedings
The Complaint was filed in the English language. It is noted that the language of the registration agreement for the disputed domain name is Korean. According to paragraph 11 of the Rules, the language of the administrative proceeding shall be the language of the registration agreement unless the Panel decides otherwise. 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 the present case, the registration agreement for the disputed domain name was made in the Korean language.
The Complainant has submitted a request that English be the language of proceeding in which it has advanced a number of arguments including that, according to the Complainant, the Respondent has sufficient ability understanding the English language. The Respondent stated to the Center its objection to the Complainant’s such request but would appear from these communications to have at least some familiarity with English. It is also apparent from the written communications exchanged between the parties and the Center that the Respondent has sufficient ability communicating in the English language. It is also noteworthy that the Center in initially deciding to proceed with acceptance of the Complaint in English nevertheless communicated with the parties in both English and Korean, indicated that it would accept a Response in either English or Korean and also indicated it would (and has) appointed a Panelist familiar with both English and Korean.
In any event, the Respondent failed to submit a Response in either language and declined to participate in the proceeding. On the other hand, the Complainant is not able to communicate in Korean and therefore, if the Complainant were to submit all documents in Korean, the administrative proceeding would be unduly delayed and the Complainant would have to incur substantial expenses for translation. It is also noted that the Panel determined that the administrator of the Respondent (Mr. Jeong Seo Yong) has sufficient ability communicating in the English language. See Alma Media Corporation v. A/Jeong Seo Yong,WIPO Case No. D2008-0022 and Ets Leobert, SARL v. Jeonggon Seo,WIPO Case No. D2009-0004.
Therefore, in consideration of all 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 proceeding in this case. See Deutsche Messe AG v. Kim Hyungho, WIPO Case No. D2003-0679. B. The Respondent’s default
The Respondent contended that the language of the proceeding be Korean and that it could not prepare a Response because it did not understand the Complaint that was submitted in English. In fact, the Respondent did not submit any response by the due date. However, the Respondent appears to have the ability to communicate in English as discussed above, and the Center gave it the opportunity to file the Response even in Korean by notifying it of the Center’s preliminary decision to accept a Response in either Korean or English and appoint a panel familiar with both languages. As such, the Panel finds that the Respondent’s contention does not affect its default. C. Identical or Confusingly Similar
The Complainant owns a registered trademark RPP.COM in respect of telecommunication services as described in paragraph 4 above which was registered on June 27, 2001.
The Panel finds that the disputed domain name is identical with the word mark RPP.COM of the Complainant and the first element of the Policy has been established. D. Rights or Legitimate Interests
The Panel also finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name in that i) the Respondent has not been in any way or anywhere ever commonly known by the disputed domain name and ii) the Complainant has not licensed or otherwise permitted the Respondent to use its company name or trademark; that as such the Complainant has made out a prima facie case and that has not been rebutted by the Respondent.
In any case, it would not be necessary for the Panel to determine whether the Respondent has a legitimate interest in the disputed domain name in light of the below. E. Registered and Used in Bad Faith
Aside from the trademark application and registration dates apparent in the Complaint, the Panel has found difficulties in ascertaining from the record before it, the precise date of first use by the Complainant of its marks RPP, RPP.COM or any other marks comprising of RPP. The Panel has found no persuasive evidence showing whether any of the Complainant’s marks were used or registered prior to the registration of the disputed domain name, i.e., January 10, 1996 although the Complaint submits that it launched its business in 1963 without any indication on when it began to use the marks comprising of RPP while none of the Complainant’s trademark registrations predates the registration of the disputed domain name.
In the ordinary case, a business adopting a new mark in today’s world must take the Internet as it finds it. If someone else has already registered a domain name identical or confusingly similar to the proposed new mark, that domain name may well be unavailable to the business unless it negotiates a transfer.
It is noted that the registration of the disputed domain name predates the registration of the Complainant’s registered trademarks. Although the Complainant launched its business as early as in 1963 which far predates the registration of the disputed domain name, it is unclear and unknown when the Complainant began to use the mark RPP.COM or other RPP comprising marks. There is no evidence showing that the Respondent was aware of the existence of the Complainant’s said trademarks. On this record, the Panel cannot find any evidence or clue that the Respondent was aware of the Complainant’s not-yet extant mark at the time it registered the disputed domain name. Accordingly, the Respondent’s registration of the disputed domain name cannot have been in bad faith.
Given the circumstances above, the Panel concludes that although bad faith use may, in appropriate cases, give rise to an inference of bad faith registration, such an inference cannot be made where, as here, the Complainant’s mark was not yet in existence at the time of the disputed domain name registration. See e-Duction, Inc. v. John Zuccarini, d/b/a The Cupcake Party & Cupcake Movies,WIPO Case No. D2000-1369, Meeza QSTP-LLC v. Torsten Frank / medisite Systemhaus Gmbh, WIPO Case No. D2009-0943, and Mile, Inc. v. Michael Burg,WIPO Case No. D2010-2011. 7. Decision
As all of the three requirements under paragraph 4(a) of the Policy have not been established, the Panel denies the Complainant’s request.
Ho-Hyun Nahm
Sole Panelist
Dated: April 28, 2011
Full & Egal Universal Law Academy