The Complainant is Institut de Recherche Biologique – IRB of Montaigu, France, represented by Cabinet Vidon Marques & Juridique PI, France.
The Respondent is Jungyuhkook of Daegu, 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 September 18, 2018. On September 18, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 19, 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 of the registrant.
On September 26, 2018, the Center notified the Parties in both English and Korean that the language of the registration agreement for the disputed domain name is Korean. On September 27, 2018, the Complainant requested for English to be the language of the proceeding. The Respondent did not submit any request regarding 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 and 4, the Center formally notified the Respondent in English and Korean of the Complaint, and the proceedings commenced on October 4, 2018. In accordance with the Rules, paragraph 5, the due date for Response was October 24, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 25, 2018.
The Center appointed Thomas P. Pinansky as the sole panelist in this matter on November 6, 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. 4. Factual Background
The following factual information is derived from the Complaint and supporting materials submitted by the Complaint:
The Complainant is in the field of food supplement industry created in 2001. It has developed a range of nutritional products and has particularly been renowned for its menopause-related products. The range of products named “Manhae” is widely commercialized by the Complainant since 2006, and the Complainant owns MANHAE trademarks in many countries such as MANHAE trademark registered in 2005, in France (Registration No. 043320913), MANHAE trademark registered in European Union trademark on June 22, 2010 (Registration No. 008706327), and the international trademark MANHAE registered on June 10, 2010 (Registration No. 1056429). The Respondent is a Korean individual named Jungyuhkook.
The disputed domain name is registered with Megazone Corp., dba HOSTING.KR on August 15, 2016. The disputed domain name contains numerous pay-per-click (“PPC”) ads. On July 20, 2018, the Complainant sent a cease and desist letter to the Respondent notifying the Complainant’s trademark right. The letter has not been answered. 5. Parties’ Contentions A. Complainant
The Complainant argues that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights. It further contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name because i) the Complainant has not given any authorization to the Respondent to use its trademark; and ii) the Respondent has not used the disputed domain name in connection with a bona fide offering of goods or services. Lastly, the Complainant contends that the Respondent registered and is using the disputed domain name in bad faith because i) the Respondent knew, or at least should have known, about the Complainant’s trademark rights; ii) the Respondent shows a pattern of conduct in registering domain names including registered trademarks, and iii) the Respondent did not respond to the cease and desist letter sent by the Complainant. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
The Respondent neither replied to the Complaint nor responded to the Center’s communication, and the Center found the Respondent in default. The consensus view of UDRP panels in case of default is that “the respondent’s default does not automatically result in a decision in favor of the complainant and that the complainant must establish each of the three elements required by paragraph 4(a) of the UDRP. Allianz, Compaña de Seguros y Reaseguros S.A. v. John Michael,WIPO Case No. D2009-0942.
However, paragraph 14 of the Rules provides in the event of default that a panel may draw such inferences therefrom as it considers appropriate. Paragraph 15(a) of the Rules instructs that “[a] 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 or principles of law that it deems applicable”. “Where a party fails to present evidence in its control, the Panel may draw adverse inferences regarding those facts.” Tradewind Media, LLC d/b/a Intopic Media v. Jayson Hahn,WIPO Case No. D2010-1413; see also Time Equipment Corp. v. Stage Presence,WIPO Case No. D2003-0850; Express Scripts, Inc. v. Roy Duke, Apex Domains aka John Barry aka Domains for Sale and Churchill Club aka Shep Dog,WIPO Case No. D2003-0829; Mary-Lynn Mondich and American Vintage Wine Biscuits, Inc. v. Shane Brown, doing business as Big Daddy's Antiques,WIPO Case No. D2000-0004. A. Language of the Proceeding
Paragraph 11(a) of the Rules provides that the language of the proceeding shall be the language of the registration agreement, unless otherwise agreed to by the parties, subject to the authority of the panel to determine otherwise. In this case, the language of the registration agreement is Korean. On September 27, 2018, the Complainant requested for English to be the language of the proceeding. The Respondent did not submit any request regarding the language of the proceeding. The Center notified the Respondent in both English and Korean of the Complaint, but the Respondent did not respond.
In determining the language of the proceeding in the present case, pursuant to section 4.5.1 of WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), the Panel considers the following points: (i) the language of the contents on the webpage under the disputed domain name is English, indicating the Respondent’s familiarity with English; (ii) the Panel is familiar with both English and Korean, capable of reviewing all the documents and materials in both languages and able to give full consideration to the Parties’ respective arguments; (iii) the Respondent did not respond to any of the communications made by the Center both in English and in Korean, showing its unwillingness to actively participate in this proceeding; and (iv) ordering the Complainant to translate the Complaint in English will cause undue delay in the process.
In light of the aforementioned circumstances, the Panel finds that there will be no prejudice against the Respondent as a result of the Complainant’s submission in English. Thus, the Panel concludes that it will accept the Complaint as filed in English and issue a decision in English. B. Identical or Confusingly Similar
The disputed domain name incorporates the Complainant’s trademark MANHAE in its entirety. In cases where a domain name incorporates the entirety of a trademark, it is the view of UDRP panels that the domain name will normally be considered confusingly similar to that mark for purposes of UDRP standing. See section 1.7 of WIPO Overview 3.0; see also, “When a domain name wholly incorporates a complainant’s registered mark, that is sufficient to establish confusing similarity for purposes of the Policy.” Bayerische Motoren Werke AG v. ,WIPO Case No. D2002-0615. Also, the generic Top-Level Domain, such as “.com”, is disregarded during the first element confusing similarity test. See section 1.11 of WIPO Overview 3.0.
Therefore, the Panel finds that the disputed domain name is identical or confusingly similar to the Complainant’s trademark. C. Rights or Legitimate Interests
Section 2.1 of WIPO Overview 3.0 provides that “where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element.”
After reviewing the assertions made in the Complaint and the supporting materials thereto, it appears that the Complainant never gave the right to use its trademark to the Respondent. It also seems that the Respondent does not have any legitimate interests in the disputed domain name other than using it as a parking page for PPC ads. Thus, the Panel finds that the Complainant has established a prima facie case that the Respondent does not have rights or legitimate interests in the disputed domain name. On the other hand, by never responding to the Complainant’s position, the Respondent failed to prove any of the circumstances provided in paragraph 4(c) of the Policy.
In light of the above analysis, along with the inferences available to be made in case of the absence of a response by the respondent, the Panel finds that the Respondent lacks any rights or legitimate interests in the disputed domain name. D. Registered and Used in Bad Faith
Paragraph 4(b)(iv) of the Policy provides that bad faith is found when a respondent, by using the domain name, has intentionally attempted to attract, for commercial gain, Internet users to its 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 its website or location or of a product or service on its website or location. The disputed domain name’s website contains various PPC ads. In the absence of any response to the Complaint, it is most plausible that the Respondent registered the disputed domain name to confuse Internet users and attract them to the Respondent’s website for commercial gains, which constitutes evidence of bad faith under paragraph 4(b)(iv) of the Policy.
Additionally, the Complainant’s assertion that the Respondent shows a pattern of conduct of preventing a trademark holder from reflecting its mark in a domain name is plausible. Although the names of the registrants are not known, the Whois search of and shows the address, zip code, and phone number that are identical to the ones shown in the WhoIs search of the disputed domain name. Thus, it is reasonable to suspect that such domain names were also registered by the Respondent. It is not certain whether anyone owns a trademark for the word ENVIRO KOREA, but it is doubtless that the word Google has been trademarked. Therefore, with the inference in favor of the Complainant allowed due to the Respondent’s default, it is not unreasonable to conclude that the Respondent engages in a pattern of conduct of preventing the owner of the trademark from reflecting the mark in a corresponding domain name, which constitutes bad faith under paragraph4(b)(ii) of the Policy.
Thus, the Panel finds that the Respondent registered and used the disputed domain name in bad faith. 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.
Thomas P. Pinansky
Sole Panelist
Date: November 19, 2018
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