The Complainant is Philippe Astie Owner, isails, LLC of Park City, Utah, United States of America, self‑represented.
The Respondent is noorinet of Daegu, Republic of Korea. 2. The Domain Name and Registrar
The disputed domain name is registered with Gabia, Inc. (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 11, 2014. The Complainant filed an amended Complaint on March 12, 2014. On March 12, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 14, 2014, 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 March 18, 2014, the Center transmitted an email to the Parties in both the Korean and English languages regarding the language of the proceedings. On March 18, the Complainant submitted its request that English be the language of the proceedings. The Respondent did not comment on the language of the proceedings.
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 amended Complaint in both Korean and English, and the proceedings commenced on March 25, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was April 14, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 15, 2014.
The Center appointed Young Kim as the sole panelist in this matter on April 17, 2014. 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.
Pursuant to paragraph 11(a) of the Rules, in the absence of an agreement between the parties, or unless specified otherwise in the registration agreement, the language of the administrative proceeding shall be the language of the registration agreement, subject to the authority of the administrative panel (once appointed) to determine otherwise. As discussed below, the Panel has determined that the language of this administrative proceeding is English. 4. Factual Background
The Complainant has registered the trademarks ISAILS and I-SAILS with the United States Patent and Trademark Office (USPTO), as registration numbers 4439481 and 3668792, on November 26, 2013 and August 18, 2009, respectively.
The disputed domain name was created on March 16, 2011. 5. Parties' Contentions A. Complainant
The Complainant avers that the Complainant is an Internet sail loft, who designs and distributes sails for sail boats through the Internet under these two brands, i-sails and isails; that the main products designed and distributed are, amongst others, dinghy sails, small keel boats sails and spinnakers sails for sail boats; and that it sells and ships sails all over the world.
The Complainant alleges that the disputed domain name is identical to the Complainant's trademark ISAILS, which was registered with the USPTO as registration number 4439481 on November 26, 2013.
The Complainant also alleges that the disputed domain name is confusingly similar to the Complainant's trademark I-SAILS, which was registered with the USPTO as registration number 3668792 on August 18, 2009.
The Complainant contends that it has operated his company called isails, LLC since May 11, 2007 and promoted the two brands i-sails and isails since then.
The Complainant also alleges that as a result of the Complainant promoting its trademarks i-sails and isails by his company steadily through websites, college sailing racing events, sports events, or through its network of resellers, the brands isails and i-sails have become very distinctive and very well known around the world.
The Complainant further avers that it also owns the domain names , , , , , ,, , , which he has used to run his web operations and reflects his company's main markets.
The Complainant alleges that when reaching the site "www.", Internet users are directed to a window clearly stating the intent to sell the disputed domain name, and prompting users to send a request for a price; and that said window is also used for the owners of the disputed domain name to advance their own business, and it states that they are in search for investors to develop a unrelated website called "". Thus, the Complainant alleges that the disputed domain name is not used for a bona fide offering of goods or services.
The Complainant also alleges that the Respondent is not commonly known by the names comprised in the disputed domain name.
The Complainant contends that the disputed domain name is not being used for noncommercial or fair use by the Respondent, because the website under the disputed domain name places an offer for sale of the disputed domain name in a way that is confusing for the Internet users and diverting the attraction the Complainant causes for its own enterprises.
The Complainant alleges that there are circumstances indicating that the disputed domain name was registered primarily for the purpose of selling it, which indicates bad faith. Specifically, the Complainant alleges that the fact that the Respondent responded very quickly to a request for information on the price of the disputed domain name shows that selling the disputed domain name is the primary purpose of owning it, and indicates bad faith. Thus, the Complainant contends that the disputed domain name was registered and is being used in bad faith.
The Complainant also alleges that there is a considerable history of bad faith findings in previous UDRP proceedings involving the Respondent. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings A. Language of the Proceeding
According to paragraph 11(a) of the Rules, in the absence of any agreement between the parties, or unless otherwise specified in the registration agreement, the language of the administrative proceeding shall be the language of the registration agreement subject to the authority of the panel to determine otherwise.
The Panel notes that the language of the proceeding for this case would be Korean as it is the language of the relevant Registration Agreement in the absence of any express agreement to the contrary by the parties. Under paragraph 11(a) of the Rules, however, the Panel has the authority to determine the language of the proceeding, having regard to the circumstances of the administrative proceeding.
The Complainant has submitted a request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding. The Panel notes from Annex 2 to the Complaint that the Respondent communicated in English with a person who contacted the Respondent to purchase the disputed domain name.
The Panel has considered the particular circumstances of this case carefully as well as the discretion provided under paragraph 11(a) of the Rules. The Panel hereby determines that English shall be the language of the administrative proceeding in this case, but under the condition that the Respondent shall be permitted to submit any assertions, documents, or materials in Korean. The Panel notes that the Center informed the parties that it would accept a Response in either English or Korean, but no communication was received from the Respondent. B. Requirements under Paragraph 4(a) of the Policy
Paragraph 4(a) of the Policy requires the Complainant to prove that:
(i) the disputed domain name is identical or confusingly similar to a trademark to which the Complainant has rights;
(ii) the Respondent has no rights or legitimate interests with respect to the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
Each of these three elements is discussed below. A. Identical or Confusingly Similar
The Panel agrees with the Complainant that the disputed domain name is identical or confusingly similar to the Complainant's trademarks ISAlLS and I-SAILS.
The Panel finds that the disputed domain name contains the word "isails", which is identical to the Complainant's trademark ISAILS.
Here, the Panel disregards the generic Top-Level Domain (gTLD) "com" in determining the identity or confusing similarity of the disputed domain name with the Complainant's trademark.
Thus, the Panel finds that paragraph 4(a)(i) of the Policy is satisfied. B. Rights or Legitimate Interests
The Panel notes from the Complaint that when reaching the site "www.", Internet users are directed to a window clearly stating the intent to sell the disputed domain name, and prompting users to send a request for a price. The Panel further notes from the Complaint that said window is also used for the owners of the disputed domain name to advance their own business, and it states that they are in search for investors to develop an unrelated website called "". Thus, the Panel agrees with the Complainant that the disputed domain name is not used for bona fide offering of goods or services and finds that the Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name.
On the other hand, the Respondent did not submit any response or argument to the Complaint. There was no explanation or assertion from the Respondent that the Respondent has rights or legitimate interests with respect to the disputed domain name.
Thus, the Panel concludes that the Complainant has established that the condition of paragraph 4(a)(ii) of the Policy is met. C. Registered and Used in Bad Faith
The Panel agrees with the the Complainant that the fact that the Respondent responded very quickly to a request for information on the price of the disputed domain name shows that selling the disputed domain name is the primary purpose of registering it.
The Panel notes that the Complainant has operated his company called isails, LLC since 2007 as shown in Annex 6 to the Complaint. The Panel also notes from Annex 4 to the Complaint that the trademarks I-SAILS and ISAILS have been used in commerce from June 1, 2007 and March 1, 2009, respectively, well before the disputed domain name was created on March 16, 2011. Further, in view of the evidence attached to the Complaint, the Panel agrees with the Complainant that the trademarks ISAILS and I‑SAILS have acquired well-known status in the marine sails business.
On the other hand, the Respondent did not submit any response or argument to the Complaint.
Thus, the Panel concludes that the disputed domain name has been registered in bad faith.
Further, the Panel agrees with the Complainant that the disputed domain name is being used in bad faith. The Panel notes from Annex 2 to the Complaint that the Respondent demanded USD 10,000 as the price for the disputed domain name, which, without any evidence as to the price the Respondent may have paid, is much higher than the out-of-pocket expense for the registration of the disputed domain name.
In view of the above, the Panel finds that the Complainant has established that the condition of paragraph 4(a)(iii) of the Policy is met. 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.
Young Kim
Sole Panelist
Date: May 1, 2014
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