The Complainant is Date4sports UG of Hamburg, Germany, represented by Selting und Baldermann, Germany.
The Respondent is Noorinet of Gyeongju-si, Republic of Korea. 2. The Domain Name and Registrar
The disputed domain name is registered with Megazone Corp., dba HOSTING.KR (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 9, 2012. On October 9, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 12, 2012, the Registrar 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 15, 2012, the Center notified the parties in both English and Korean that the language of the Registration Agreement in this case was Korean. On October 16, 2012, the Complainant sent an email requesting English to be the language of the proceedings. The Respondent did not submit any reply related to 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 November 7, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was November 27, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 28, 2012.
The Center appointed Ho-Hyun Nahm as the sole panelist in this matter on December 13, 2012. 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 offers dating services for sport activities under its website “.” The Complainant is the licensee of the company Speech GmbH who is the owner of the Community Trade Mark (CTM) Registration No. 10187813 for the mark DATE4SPORTS (hereinafter referred to as “Complainant’s Mark”). The Complainant is using the Complainant’s Mark as its company name as well.
The details of the Complainant’s mark are as follows:
Registration number: 10187813
Trademark basis: CTM
Date of Filing: August 10, 2011
Date of Registration: December 28, 2011
Class of goods and services: 28, 35, 38, 39, 41, 42, 45
The disputed domain name was registered on September 4, 2012. 5. Parties’ Contentions A. Complainant
(i) The disputed domain name is confusingly similar to the registered trademark DATE4SPORTS in which the Complainant has rights;
(ii) The Respondent should be considered as having no rights or legitimate interests in respect of the disputed domain name;
(iii) The disputed domain name should be considered as having been registered and used in bad faith by the Respondent; and
(iv) The Complainant requests the transfer of the disputed domain name to itself. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. The Language of Proceeding
The Registrar of the disputed domain name has informed the Center that the language of the relevant Registration Agreement was Korean. On October 15, 2012, the Center issued in English and Korean a Language of Proceeding Notification. On October 16, 2012, the Complainant submitted a request that English be the language of the proceeding, as originally requested in the Complaint, on the grounds that it is presumable that the Respondent is able to communicate in English from the following facts: i) the Respondent was a party to several past UDRP proceedings filed against itself in which English was accepted as the language of the proceedings; ii) the Respondent is familiar with the English language from the fact announcing the disputed domain name for sale in English on the website; and iii) that it would be an undue burden and unnecessary costs for the Complainant if the Complaint and Annexes have to be translated to Korean given the circumstances that the Respondent is able to communicate in English.
The Respondent did not submit any objection to the Complainant’s request that English be the language of the proceeding, notwithstanding the Center’s notifying the Respondent (in both English and Korean) that the Center would proceed on the basis that the Respondent has no objection to the Complainant’s request that English be the language of proceedings if the Respondent did not submit an objection.
It is the Panel’s view that the Respondent appears to have ability to communicate in English in light of the Complainant’s grounds for requesting that English be the language of the proceeding, to which the Respondent did not submit any objection.
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.
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; and Inter-IKEA Systems B.V. v. SC Agis International Sport S.R.L.,WIPO Case No. DRO2006-0001). B. Identical or Confusingly Similar
The Complainant is the licensee of the company Speech GmbH who is the owner of the CTM Registration No. 10187813 for the mark DATE4SPORTS. According to the License Agreement (Annex 4 to the Complaint) between the company Speech GmbH and the Complainant, the Complainant has the right and license to register and use any domain names related to the mark DATE4SPORTS. (Paragraph I.I.(b) of the License Agreement). Previous UDRP panels have found that a licensee of a trademark is considered to have rights in a trademark under the UDRP in most circumstances. As such, in this case it is recognized that the Complainant has the right for the mark DATE4SPORTS.
The generic Top-Level Domain (gTLD) suffix “.com” in the disputed domain name is non-distinctive. The Panel finds that the addition of the gTLD suffix “.com” to the DATE4SPORTS mark and the missing of the letter “s” in the disputed domain name do not lessen the confusing similarity between the disputed domain name and the Complainant’s Mark.
As such, the Panel has found that the disputed domain name is confusingly similar to the Complainant’s Mark, and the first element of the Policy has been established. C. Rights or Legitimate Interests
As it is virtually impossible for a complainant to prove the negative fact that a respondent has no rights or legitimate interests in the disputed domain name, it is well accepted that a complainant must only show a prima facie case that there are no rights or legitimate interests on the part of the respondent in the disputed domain name. The burden of production will then shift to the respondent. (See Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455).
The Panel has found that the Respondent has no connection or affiliation with the Complainant or its marks and has not received any license or consent, express or implied, to use the term “date4sport” in a domain name or in any other manner. The Panel further finds that on the record, it has been established that the Respondent has never been known by the disputed domain name.
Under the circumstance that the Respondent did not reply, the Panel finds that the Complainant has proven a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, and the second element of the Policy has been established. (See De Agostini S.p.A. v. Marco Cialone,WIPO Case No. DTV2002-0005; and Accor v. Eren Atesmen, WIPO Case No. D2009-0701). D. Registered and Used in Bad Faith
The Panel finds that the Respondent is very unlikely to register the disputed domain name coincidently in view of the fact that the Complainant’s Mark is a coined mark. In this Panel’s view, the Respondent could not have been unaware of the Complainant’s Mark, and it is presumed that when registering the disputed domain name, the Respondent knowingly and purposefully chose a name which is confusingly similar to the Complainant’s Mark.
The Panel finds it evident that the Respondent was acting with the intention to sell the disputed domain name to the Complainant or to a competitor for valuable consideration in excess of its out-of-pocket expenses. The webpage resolved by the disputed domain name clearly offers the sale of the disputed domain name (Annex 6 to the Complaint). The Respondent wanted at least USD 4,000 for the disputed domain name in the correspondence sent to the Complainant (Annex 9 to the Complaint) which the Panel considers as being valuable consideration in excess of registration costs.
Paragraph 4(b) of the Policy sets forth examples of behavior that may constitute bad faith registration and use, while clearly indicating that other circumstances may also act as evidence of bad faith. One of the enumerated circumstances includes the registration of the domain name primarily for the purpose of selling the domain name to the owner of the mark or to a competitor for valuable consideration in excess of registration costs. See Educational Testing Service v. TOEFL,WIPO Case No. D2000-0044 (finding that the respondent did in fact register and use the domain name in bad faith as it has made no use of the domain name other than to offer it for sale at a price that is likely to substantially exceed its out-of-pocket costs of registration); See VENTURUM GmbH v. Coventry Investments Ltd., DomainCollection Inc.,WIPO Case No. D2003-0405 (finding that offering the domain name for sale to the complainant, any of the complainant’s competitors, and others fall within the exemplification of registration and use of a domain name in bad faith pursuant to paragraph 4(b)(i) of the Policy); See PRIMEDIA Magazine Finance, Inc. v. Richard Manzo, WIPO Case No. D2001-1258 (finding that the respondent clearly offered the domain name for sale to anyone, suggested a price that is considerably in excess of registration costs, and has indicated a willingness to sell “at the right price” which behavior constitutes bad faith).
Furthermore, the Respondent is in default as it did not respond to these proceedings and therefore failed to invoke any element or circumstance which could indicate the good faith nature of its registration and use of the disputed domain name. As a consequence, the Respondent has failed to demonstrate any bona fide use of the disputed domain name.
Given the circumstances above, the Panel concludes that the Respondent registered and uses the disputed domain name in bad faith, and the third element of the Policy has been established. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to the Complainant.
Ho-Hyun Nahm
Sole Panelist
Date: December 27, 2012
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