The Complainant is Kpark S.A.S. of Aubervilliers, France, represented by Nameshield, France.
The Respondent is Domain Administrator, Optional of Walnut, California, United States of America (“United States”, “US” or “USA”), self-represented. 2. The Domain Name and Registrar
The disputed domain name is registered with ! #1 Host China, Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 6, 2018. On June 6, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 8, 2018, 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.
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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on June 15, 2018. In accordance with the Rules, paragraph 5, the due date for Response was July 5, 2018. The Response was filed with the Center on June 21, 2018 (“the Response”). The Complainant sent further email communications on June 27 and 28, 2018. The Respondent also sent several email communications on June 25, 28, and 29, and August 14, 2018 regarding the proceeding.
The Center appointed C. K. Kwong as the sole panelist in this matter on July 18, 2018. 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.
Administrative Panel Procedural Order No. 1 (“Procedural Order”) was issued to the parties on August 17, 2018 ordering inter alia:
1. The Respondent Domain Administrator, Optional may state by August 27, 2018 (a) its relationship (if any) with the party at […]@, and (b) whether it will adopt and if so, to what extent it will adopt or disagree with the Response submitted by the party at […]@ in this case on June 21 and 28, 2018.
2. Kpark office (i.e. […]@) is requested to identify itself and may state the relationship (if any) with the disputed domain name and with the Respondent Domain Administrator, Optional... by August 27, 2018. For the avoidance of doubt, pending determination by the Panel, the party writing from Kpark office is not a party to this proceeding.
3. The Complainant may file its comments (if any) in reply to any submissions made under paragraph 1 and 2 above within ten days from receipt of the same.
4. No other information or materials except as specially specified in paragraphs 1, 2 and 3 above should be filed or supplied by the parties.
Submissions were filed by:
(a) the named Respondent Optional on (i) August 17, 2018, (ii) August 20, 2018 and (iii) August 26, 2018;
(b) the party writing from behind the email address at […]@ (“Undisclosed Party”) on (i) August 17,2018, (ii) August 20, 2018, (iii) August 254, 2018, and (iv) September 3, 2018;
(c) the Complainant providing its comments in reply on August 20, 2018. No further comments were filed by the Complainant by September 6, 2018 under the Procedural Order.
Paragraph 4.6 in the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) states that “Paragraph 10 of the UDRP Rules vests the panel with the authority to determine the admissibility, relevance, materiality and weight of the evidence, and also to conduct the proceedings with due expedition.”
The Rules do not indicate that the parties have the right to submit supplemental responses without the request of the Panel. The rationale for limiting the number of filings by the parties is to enable the conduct of the proceeding in an efficient and speedy manner.
In the interest of fairness, the Panel rules to admit all the supplemental filings subsequent to the Response and made before the date of September 6, 2018 referred to above, which have been considered and taken into account by the Panel in reaching its decision.
All supplemental filings after the said date of September 6, 2018 are excluded from the case file and will not be considered in this Panel’s decision. For the avoidance of doubt, this exclusion is made after the Panel has reviewed the supplemental filing after September 6, 2018 and finds that nothing contained therein would have changed the outcome of the present decision. 4. Factual Background
The Complainant is the owner of French trademark registration no. 1548560 for the mark K PAR K applied for on March 8, 1989 and the French trademark registration no. 4024563 for the stylized mark K PAR K registered on November 22, 2013 (Annex 4). In each case, there is noticeably a space in between the letter “k” in front of the term “par” and a space between the letter “k” following the term “par”.
The Complainant also owns several domain names comprising the 5 letters “K PAR K”, including , registered on June 3, 1997, registered on October 11, 2016 and registered on October 11, 2016.
The disputed domain name was registered on March 31, 2018 by the Respondent. According to the Complaint and relevant evidence, the disputed domain name resolved to a website displaying the text “Coming soon!” at the time when the Complaint was filed. 5. Parties’ Contentions A. Complainant
The Complainant asserted in the Complaint and its communications on June 27 and 28, 2018 to the following effect:
1. is identical to the trademark K PAR K. The disputed domain name includes in its entirety and is identical to the Complainant’s trademark K PAR K.
2. The owner of the disputed domain name is “OPTIONAL” and not commonly known by the disputed domain name.
3. The Respondent has registered the disputed domain name only in order to create a likelihood of confusion with the Complainant’s trademark.
4. The Respondent is not related in any way with the Complainant.
5. The Complainant has not licensed or authorized the Respondent to use the Complainant’s trademark K PAR K, or apply for registration of the disputed domain name.
6. The Complainant previously owned the disputed domain name for 18 years (Annex 8). The Respondent purchased the disputed domain name approximately three months after the lapse of the Complainant’s rights in the disputed domain name. Previous Panels have held than it can show a lack of rights and legitimate interests, especially where a respondent fails to submit a response.
7. The website to which the disputed domain name resolves contains the message “Coming Soon!” and a countdown. The use of a parked page with countdown to when the website will go live is not a bona fide offering of goods or services nor a legitimate noncommercial or fair use.
8. The Respondent has no rights or legitimate interests in respect of the disputed domain name .
9. The Respondent registered the domain name many years after the Complainant had established a strong reputation and goodwill in its mark.
10. The word “KPARK” has no meaning in any language.
11. Google search on “KPARK” displays several results, all of them being related to the Complainant and its activity.
12. By choosing the “.COM” generic Top-Level Domain (“gTLD”) for registering the Domain Name, which is the most common Top-Level Domain (“TLD”), the Respondent likely wanted to create confusion or a sense of association with the Complainant and its products.
13. The Respondent is likely to be targeting the Complainant and its K PAR K mark when registering the disputed domain name.
14. The Respondent did not reply to the cease and desist letter sent by the Complainant on May 29, 2018 which constitutes bad faith.
15. The website to which the disputed domain name resolves has no information to distinguish the operator of that website with the Complainant. It may create a likelihood of confusion about the origin of the website, especially when the Complainant has owned the disputed domain name for several years. The website “Coming Soon” may be thought of as the Complainant’s new official website or affiliated website.
16. The Respondent is creating confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of its own website.
17. The Respondent has acquired or maintained the disputed domain name in order to disrupt the Complainant’s business.
18. The Respondent has registered the disputed domain name and is using it in bad faith.
19. The Response has not revealed its true identity or how it can establish its rights to the disputed domain name.
20. According to the WhoIs the Respondent is “OPTIONAL” with an address in California, US but the companies domiciled at this address have nothing to do with the name “KPARK” (Annex 1).
21. The Respondent claims that it is based in China which is inconsistent with the WhoIs information as shown in Annex 1.
22. The Respondent is the owner of other domain names, all being used in the same way as (Annex 2), with a countdown: (Annex 3), (Annex 4) and has engaged in a pattern of conduct.
23. The Respondent never identified itself, or explained what its real interest in the domain name is. The Respondent tries to justify its interest in the domain name by providing several elements (logo, picture of a storefront). However, it never establishes the relation between those elements and its project, or the source of those elements. The Respondent has not provided evidence of the rights it could have on the term “kpark”. B. Respondent
The Undisclosed Party writing from the email address at […]@ has made the following contentions in its email to the Center on June 21, 2018 which is treated as the Response and various communications in June 2018 to the following effect:
1. The disputed domain name is an international domain name which it decided to purchase after conducting appropriate due diligence searches at the Chinese Trademark Office, European Union Intellectual Property Office and US Trademark Office (as per the Respondent’s Annex 1 to the Response).
2. According to its researches, the Complainant has not registered or applied for the mark “KPARK”. No one owns the mark “KPARK”.
3. The Complainant only owns the French trademark “K PAR K” in France and which is to be read and understood according to the French language.
4. The disputed domain name is an international domain name and according to the English language, its meaning is the letter “K and the word “PARK” and not “K PAR K”.
5. Its project intends to use the name KPARK. The Chinese transliteration is “鲲鹏” park meaning the garden named “鲲鹏” which is a mysterious animal mentioned in the Chinese literature.
6. The project is designed for serving young startups involving work, networking, entertainment, accommodation and consumer spending in a complex startup community.
7. The Complainant has only emphasized on owning the trademark “K PAR K” but not “KPARK”.
8. Drafts of the designs of the webpage, products, shop front and logo which it intends to use are produced in Annexes 3, 4, 5 and 6 to the Response.
9. From the word “AD”, it is observed that the Complainant has purchased advertisement service from google, so that it would be natural for their website to be shown up front at the beginning of Internet searches in France (as seen in Annex 7 to the Response).
10. On the other hand, for Internet searches conducted in America and China where the Complainant did not purchase advertisement service, the website of others are shown.
11. The Complainant’s website introduces their mark as “K PARK K” although the domain name they use because this is the way in which domain names are presented. The differences are clear.
12. Its purchase of the disputed domain name is for the purpose of use as its own website to be launched in the near future. The “coming soon” notice is to collect suggestions. It has not involved the Complainant’s trademark or products or relationship with it. There is no intention to damage the Complainant’s trademark or interest.
13. It has never heard of the Complainant and has no intention to have any relationship with it.
14. The Complainant has obstructed the Respondent in bad faith.
15. “.com” is international and not French national.
16. In its email to the Center on June 28, 2018, the Undisclosed Party made the following further submissions.
(a) The disputed domain name was not registered by it. It only purchased the dispute domain name through Optional who may own other domain names but which are not of the concern of […]@.
(b) The disputed domain name is under the account of Optional. The Undisclosed Party therefore had to transfer it back to China but encountered the Complaint’s obstruction.
(c) The Undisclosed Party is not interested to sell the disputed domain name to the Complainant.
(d) The Complainant doesn’t own trademark registration in China, US or European Union, and no evidence shows that the Complainant has business outside of France. C. Further Supplemental Filings
Following the Procedural Order, the parties made the supplemental filings below:
1. The Undisclosed Party wrote from behind the email address at […]@ on August 20, 2018 to the Center referring to the Procedural Order claiming that they were the current holder of domain name and that they were defending themselves. As the domain name in dispute was still being held under the account of Optional, the registration particulars still showed the particulars of Optional. Upon the matter being completely dealt with, they would be transferring back to Ali-Cloud in Mainland China for administration. The email was signed off by kpark. No further information was disclosed.
2. On August 17, 2018, the named Respondent Optional wrote by email to the Center stating, inter alia:
“This is Optional, the former owner of K
Since we no longer own all the emails that you sent us were forwarded to […]@ the new owner from China
They built a new website with their contact info on it you can reach them there”
This email was issued by Smith John.
3. The Complainant filed its comments in reply by its email to the Center on August 20, 2018 stating to the following effect:
(a) According to the information available on the WhoIs database, the Respondent is identified as Optional of the United States.
(b) There is no information on the actual owner of the disputed domain name disclosed on the website to which the disputed domain name resolves or in the latest emails from John Smith of Optional and the Undisclosed Party writing from […]@.
(c) The Respondent is not known by the disputed domain name.
(d) The reasons for registering the disputed domain name are not supported by evidence.
(e) There is no information about the Company name “鲲鹏Kpark创业公园” as a “创业办公为核心，集工作、社交、娱乐为一体的复合型创业社区”
(f) The Respondent remains to be Optional of USA.
4. By another email from the Undisclosed Party to the Center on August 20, 2018, the Undisclosed Party made further submissions to the following effect:
(a) As early as June 3, 2018, it tried to transfer the disputed domain name held under the account of Optional to China but was stopped to do so by the Complainant in bad faith. There is sufficient reason for them to make a claim of reverse domain name hijacking.
(b) It is the current owner of , accordingly it is responsible for answering all emails. An extract of the message apparently from the responsible body which processed the application for transfer of the disputed domain name (with no documents attached in support) was copied to the Center in the same email.
(c) It has not defamed the brand name of the Complainant, not sold the disputed domain name or carried out any other acts in bad faith. It believes that the “买家(buyer)” also cannot produce any evidence of bad faith conduct.
(d) The meaning of is the letter “K” plus the single word domain name which is similar to other domain names like , , , comprising a single letter plus word or single word plus single letter which are very common. The use of K+ has taken those experiences to become more international.
(e) It has been using the email address of […]@ for a long time which is accessible for anyone who wants to contact them as shown its webpage inviting opinions from the public.
There is a temporary notice for its website link informing the public that due to domain name issue, it has decided to postpone time for getting online.
5. By further email from the named Respondent Optional to the Center on August 21, 2018, Optional repeated to the effect that […]@ was the current owner of the disputed domain name and that it was the actual respondent. No further information was provided on the identity of the Undisclosed Party, such as its actual name and address.
6. By a further email from the Undisclosed Party at […]@ to the Center on August 25, 2018, it repeated its position to the effect that:
(a) It owned the disputed domain name and is the proper respondent;
(b) Before acquiring the disputed domain name, it carried out enquires (as shown in the Annex 1 to the Response filed earlier) at the trademarks registries in China, America and Europe. No relevant “kpark” related trademarks were disclosed and there could be no argument of improper conduct. It therefore decided to acquire the disputed domain name.
(c) All the points made in its email of August 20, 2018 were repeated.
7. By yet another email from the Respondent Optional on August 26, 2018, Optional reproduce a copy of the said email from the Undisclosed Party to the Center stating that they were sending that on behalf of their client, .
8. By a further email from the Undisclosed Party to the Center on September 3, 2018, they complained that the Complainant had caused serious delay in their work for 3 months in bad faith and requested consideration of their allegation of reverse domain name hijacking. 6. Discussion and Findings A. Language of Proceedings
Paragraph 11(a) of the Rules provides:
“Unless otherwise agreed by the Parties, or 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 Panel to determine otherwise, having regard to the circumstances of the administrative proceeding”. As the Registration Agreement in this case is in English, accordingly the English language is the language of this administrative proceeding unless otherwise agreed by the parties or decided by the Panel.
It is also noted that the Response filed by the Undisclosed Party on the June 21, 2018 and submissions filed subsequently on the on (i) August 17, 2018, (ii) August 20, 2018, (iii) August 25, 2018, and (iv) September 3, 2018, although in Chinese, have thoroughly dealt with the salient points made in the Complaint and the Complainant’s subsequent comments (all in the English language). The annexes attached to the Response and the subsequent submissions of the Undisclosed Party also contained various documents in English including the trademark searches of the word mark in English alphabets.
The panel (being bilingual) is capable and willing to consider the submissions made by the parties in either the Chinese or English language. B. Parties to the Proceedings
1. After reviewing the submissions contained in the Complaint and the submissions made by the Undisclosed Party writing from behind the email address at […]@ dated June 21 and June 28, 2018, the Panel found at the time of the Procedural Order that:
(a) The named Respondent Domain Administrator, Optional of Walnut, California, United States of America, had not filed any response itself at that time.
(b) The Undisclosed Party writing from behind the email address of […]@ dated June 21 and June 28, 2018 claimed, inter alia, that it bought the disputed domain name being held under the account of the named Respondent. In its email dated June 28, 2018, the Undisclosed Party disassociated itself with the named Respondent Optional to the extent of its claim that the relevant web page to which the disputed domain resolves was constructed by Optional temporarily. Hence not done by it and so it was not its concern. Also, the registration of other domain names by the named Respondent was not its concern.
(c) The Undisclosed Party writing from […]@ was then apparently someone making submissions on behalf of itself only while not being a party named in this proceeding and not acting as agent or submitting on behalf of the named Respondent Optional.
(d) The submissions contained in the email from the Undisclosed Party dated June 21, 2018 to the Center referred to Annex 12 thereto which showed the failed transfer of the disputed domain name on June 3, 2018. However, it did not show the identities of the assignor and the assignee involved.
It was under those circumstances that the Panel made the Procedural Order referred to under Section 3 above.
2. On the possibility of a person being a beneficial owner of a disputed domain name, as may be suggested in or based on the submissions received and other facts or materials filed by the parties, some prior panels have simply taken into account the submissions made by the party who claimed to be the beneficial holder (even if it has not been named as a Respondent in the proceedings) and proceeded to make a determination on the Respondent’s identity as done in Dr. Ing. h.c. F. Porsche AG v. ANC Online Avrasya Bilisim Tekn San ve Dis Tic A SWIPO Case No. D2006-0912; and Jay Leno v. St. Kitts Registry, Domain Names Administration,WIPO Case No. D2009-0571.
3. However, the Undisclosed Party who claimed to be the “beneficial holder” of the disputed domain name in this case has not come forward to disclose its identity. It is of course noted that there is at least a person operating or sending email/submissions behind the email address […]@ using an email account with the disputed domain name. However, the identity of this person remains a complete secret throughout despite the Procedural Order requesting disclosure.
4. Paragraph 1 of the Rules provides that the Respondent means the holder of a domain name registration against which a complaint is initiated. Paragraph 8(a) of the Policy provides that a registrant may not transfer the domain name to another holder during a “pending” administrative proceeding.
5. In this case, the Undisclosed Party, being the person operating behind […]@ filed submissions (without disclosing its identity) and disassociated itself from the Respondent initially at least on points which might be considered to be against it in its email of June 28, 2018. For example, it claimed that it was not responsible for but it was the named Respondent Optional who constructed the website to which the disputed domain name resolves, though it subsequently changed its stance in its email of August 20, 2018 as referred to in paragraph Section 5 C4 (e) above. In the same email of June 28, 2018, the Undisclosed Party also disassociated itself with the ownership of other domain names by the named Respondent.
6. In the absence of the named Respondent’s confirmation on whether the Undisclosed Party i.e. the person operating behind […]@ is its authorized agent/attorney or assignee, this Panel considers it unsafe and cannot simply accept the submission by an unidentified person making assertions as if it were either acting for/authorized by the named Respondent or as the de facto holder of the disputed domain name at the time of the Procedural Order.
7. The Procedural Order was to (1) seek disclosure of the identity and clarify the relationship between the named Respondent and Undisclosed Party and (2) confirm whether the Respondent would adopt the Response filed by the Undisclosed Party and if so to what extent. These are relevant considerations when the Panel considers and exercises its discretion whether to disregard the submissions made in the Response entirely and if admitted to what extent, the weight which should be attached to them and how they should be applied to the facts of this case.
8. While arguably treating the Undisclosed Party’s submissions as if it were a response from the Registrant Respondent may be considered by some as being against the spirit of paragraph 8(a) of the Policy as it would effectively be accepting a de facto transfer (albeit of the beneficial interest) of the disputed domain name, without in any way accepting that there is any defacto transfer and strictly for purpose of considering arguments in this domain name dispute, as previously noted the Panel would consider the contents of such communications in its discussion.
9. The Procedural Order was to give the Respondent and the Undisclosed Party an opportunity to come clean by disclosing the identity of the Undisclosed Party which may at least include its real full name, address, who it is and preferably also the actual business or businesses it is doing which may show how it is related or connected to the disputed domain name.
10. Unfortunately no such details on identity were given. The Undisclosed Party (as confirmed repeatedly by the Respondent) only repeated that the owner or purchaser of the disputed domain name is […]@, but which is merely an email address.
11. In the circumstances, the Panel will and can only proceed on the basis of Optional as the Respondent to these proceedings (a) acting in its own capacity and/or (b) acting for whoever behind whom it may be representing or not representing.
12. The contents of the Response and all supplemental filings made by the named Respondent Optional and the Undisclosed Party will be considered as a whole in entirety. C. The Three Elements
In rendering its decision, the Panel must adjudicate the dispute in accordance with paragraph 15(a) of the Rules which provides that, “[t]he Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”. Paragraph 14(b) of the Rules further provides that, “[i]f a Party, in the absence of exceptional circumstances, does not comply with any provisions of, or requirement under these Rules or any requests from the Panel, the Panel shall draw such inferences therefrom as it considers appropriate”.
The said three elements are considered below. 1. Identical or Confusingly Similar
On the evidence available before the Panel, it has no hesitation in finding that the Complainant has rights in the trademark K PAR K by reason of its trademark registrations as recited in Section 4 above.
It was argued in the Response that the mark K PAR K is different from the disputed domain name in the sense that the distinctive feature of the disputed domain consist of the letter ‘K” and the word “ park”. It should be noted that Panels view the first element as a threshold test concerning a trademark owner’s standing to file a UDRP complaint, i.e., to ascertain whether there is a sufficient nexus to assess the principles captured in the second and third elements.
It is well accepted that the first element functions primarily as a standing requirement. The standing (or threshold) test for confusing similarity involves a reasoned but relatively straightforward comparison between the complainant’s trademark and the disputed domain name. Issues such as the strength of the complainant’s mark or the respondent’s intent to provide its own legitimate offering of goods or services without trading off the complainant’s reputation, are decided under the second and third elements.
This test typically involves a side-by-side comparison of the domain name and the textual components of the relevant trademark to assess whether the mark is recognizable within the disputed domain name, independent of the use factors usually considered in a traditional trademark infringement action. See Banconsumer Service ,Inc. v. Mary Langthorne, Finance Advisor,WIPO Case No. D2001-1367. In cases where a domain name incorporates the entirety of a trademark, or where at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered confusingly similar to that mark for purposes of UDRP standing. In some cases, such assessment may also entail a more holistic aural or phonetic comparison of the complainant’s trademark and the disputed domain name to ascertain confusing similarity. See section 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) and the cases cited thereunder. HSBC Fianance Corporation v. Clear Blue Sky Inc. and Domain Manger,WIPO Case No. D2007-0062.
The distinctive feature of the disputed domain name in this case is “kpark”, being the Complainant’s trademark K PAR K in its entirety except for the spacing between the first letter “K” and the second letter “K” with the word “PAR in the middle, with the resultant word having substantially the same look and similar pronunciation as the Complainant’s trademark.
It is well established practice to disregard the top-level part of the domain name “.com”, when assessing whether a domain name is identical or confusingly similar to the mark in issue. Société Anonyme des Eaux Minerales d’Evian and Société des Eaux de Volvic v. Beroca Holdings B.V.I. Limited,WIPO Case No. D2008-0416. After removing the said gTLD suffix, only the word “kpark” is left in its entirety.
The Panel finds that the disputed domain name is identical or confusingly similar to the Complainant’s trademark K PAR K.
Accordingly, the first element of paragraph 4(a) of the Policy is established. 2. Rights or Legitimate Interests
The Complainant needs to establish a prima facie case showing that the Respondent has no rights or legitimate interests in respect of the domain name. See Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455. Once such prima facie case is made, the burden will shift to the Respondent to prove that it has rights or legitimate interests in the disputed domain name.
In the present case, the Complainant has asserted registration and use of the registered trademark K PAR K well before the date of registration of the disputed domain name on March 31, 2018. The Complainant has confirmed that the Respondent was not authorized to register or use the disputed domain name.
The Undisclosed Party has tried to explain that its project intends to use the name KPARK because its Chinese transliteration is “鲲鹏” park meaning the garden named “鲲鹏” which is a mysterious animal mentioned in the Chinese literature. In this connection, it also claimed that:
(a) The project is designed for serving young startups involving work, networking, entertainment, accommodation and consumer spending in a complex startup community.
(b) It intends to use a webpage, products, shop front and logo as per the drafts produced in Annexes 3, 4, 5 and 6 to the Response.
(c) The purchase of the disputed domain name is for the purpose of use as its own website to be launched in the near future. The “Coming Soon” notice is to collect suggestions.
(d) It has been using the email address of […]@ for a long time which is accessible for anyone who wants to contact them as shown in its website inviting opinions from the public.
Unfortunately, the Panel is unable to conclude based on the bare submissions from the Undisclosed Party which represents itself as only an email address of […] @ without even offering to the Panel at least its real full name, current address and some real tangible evidence on who it is and what it does. The Panel is unable to establish the causal link between the Undisclosed Party and its relevance to the legitimate use of the disputed domain name.
It was argued that the Undisclosed Party has been using the email address of […]@ for a long time which is accessible for anyone who wants to contact them as shown their website inviting opinions from the public. However, the use of a email address relating to a website ( yet to be launched ) for three months can simply not establish such reputation as to make , in this case, an unidentified Undisclosed Party, to be known to be public by the disputed domain name.
There is no evidence available to demonstrate any legitimate noncommercial or fair use of the disputed domain name by the Respondent.
The Panel is satisfied that the Respondent and the Undisclosed Party behind it has no rights or legitimate interests in the disputed domain name. 3. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides for four situations under which a conclusive presumption of registration and use in bad faith on the part of the respondent will be invoked, namely:
(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of the complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent’s website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service of the respondent’s website or location.
However, it also specifically provides that the circumstances under which bad faith can be proved are without limitation. Put differently, the presumptions under paragraph 4(b) of the Policy are not exhaustive evidence of the way in which registration and use of a domain name in bad faith may be proved.
Evidence of other circumstances available before the Panel can also constitute evidence of registration and use of a domain name in bad faith by a respondent in appropriate cases.
Paragraph Section 5 C2 above is repeated. The point on the non-disclosure of the true identity of the Undisclosed Party writing behind the email address at […]@ was first raised by the Complainant in its email to the Center on June 28, 2018. The lack of information to establish a relationship between the Undisclosed Party and its project with (i) the draft initial designs as shown in Annexes 3, 4, 5 and 6 to the Response and (ii) the mark “KPARK” were pointed out.
Despite the Procedural Order on August 17, 2018 which gave the Respondent and the Undisclosed Party an opportunity to provide the Panel with at least the actual full name and address of the Undisclosed Party and its background, which would be helpful to show its legitimate interests in the mark “KPARK” and/or the domain name and their relevance, the named Respondent and the Undisclosed Party have simply repeated that the Undisclosed Party behind […]@ (being merely an email address) is the buyer of the disputed domain name. The withholding of such information on identity does not assist and renders it not possible for the Panel to find a connection between the named Respondent and the Undisclosed Party on whose behalf it allegedly holds the disputed domain name with the disputed domain name. Under these circumstances, the Panel cannot attach any weight to the submissions made in the Response and the supplemental filings made by the Respondent and the Undisclosed Party (being submission made a person who is not willing even to disclose its identity). The Panel is puzzled by such persistence in withholding the disclosure of identity and information on the claimed true owner of the disputed domain name.
Drawing a parallel to the “Russian doll” scenario, such non-disclosure supports an inference of bad faith (see section 3.6, 4.3 and 4.4 of WIPO Overview 3.0 and the cases cited thereunder).
It has already been pointed out in the recital to the Procedural Order and in paragraph 6(B)(1) above, that the Undisclosed Party disassociated itself with the named Respondent at the initial stage in its email of June 28, 2018 when it claimed that the construction of the website to which the disputed domain name resolves and registration of other domain names were not its concern. These are inconsistences which do not benefit the Respondent in the circumstances of the case.
The Undisclosed Party claimed that it conducted trademark searches to ascertain whether the mark “K PARK K” was registered with the Trademark Registries in China, USA and Europe before it purchased the disputed domain name on or about June 3, 2018. However, it is noted that Annex 1 to the Response which apparently consisted of extracts of trademark search results from the 3 registries, was dated June 14, 2018, which was well after (1) the registration of the disputed domain name on March 31, 2018, (2) the issuance of the cease and desist letter by the Claimant on May 29, 2018 and (3) the alleged date of purchase of June 3, 2018. Apparently, the search was done after the fact only to support its argument in this proceeding. Furthermore, a full set of documents relating to the 3 searches including the search criteria given to the relevant Registries for conducting the trademark searches and the full search result/report documents from the relevant search authorities were carefully withheld and not produced as one would have expected. Naturally, different search criteria would produce different search results.
Furthermore, only drafts of computer design materials and shop front using the word “KPARK” were provided. All these are undated with no collaborating evidence or other materials in support.
If a domain name owner has abandoned its domain name, it may be proper for others to acquire it for their own proper use in so far as it does not infringe the rights of others, including those of the original domain name holder. The possible candidates could be those as shown by the Undisclosed Party itself in Annexes 8 and 9 to the Response. For example, it may be possible for people running the Kingwood Park High School, K-Park Training Academy and K-Park 商務中心大廈 to claim a legitimate use of the term or mark “KPARK”.
However, in this case, the named Respondent only said it has sold the disputed domain name to the Undisclosed Party. The Undisclosed Party only said that it has purchased the disputed domain name which is being held by the named Respondent. It claims that the term “KPARK” is the English transliteration of the name of the Chinese mysterious animal “鲲鹏” it intends to use. Quite different from the situation of parties operating with the name “KPARK” in their actual businesses, we only have here a bare assertion that the Undisclosed Party acquired the disputed domain name embodying “KPARK” because it represents remotely the Chinese version of “鲲鹏”, a term unheard of by many. If such argument is accepted, then many other people with actual Chinese trade names (let alone intended Chinese trade names) with sounds starting with the English pronunciation of the consonants “K” and “P” will be able to claim that they have an interest in the term “KPARK”. This is too farfetched.
Prior Panels have held that failure to respond to a cease and desist letter can be evidence of bad faith. Any such bad faith is compounded when the domain name owner, upon receipt of notice that the domain name is identical to a registered trademark, refuses to respond or even to disclose the domain name holder’s identity to the trademark owner. Such conduct is not consistent with what one reasonably would expect from a good faith registrant and accused of cybersquatting.
Under the UDRP system, the Complainant bears the ultimate burden of proof on all three elements of paragraphs 4(a) of the Policy. It apparently suits the Respondent’s purposes, especially in the content of the Third Element, that the Complainant has available as little information as possible regarding the Respondent and the Respondent’s acquisition and the use of the domain name for as long as possible. In this case, there is no information in the record regarding the Respondent and the Undisclosed Party other than those which they have chosen to provide.
In addition, the Panel notes that the disputed domain name reproduces the trademark KPARK in its entirety, the disputed domain name was registered well after the Complainant’s trademark and that at the time of submitting the Complaint there was not an active website but a website with a “coming soon” text.
The Panel concludes that, in light of all the factors discussed above and the circumstances of this case, including the non-disclosure of the identity of the beneficial owner on the part of the Respondent and the Undisclosed Party constitutes bad faith under the Policy (HSBC Finance Corporation v.Clear Blue Sky Inc. and Domain Manager,WIPO Case No. D2007-0062). D. Reverse Domain Name Hijacking
As the Complaint is established, there is no question of reverse domain name hijacking as alleged. 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.
C. K. Kwong
Sole Panelist
Date: October 1, 2018
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