Coupang Corporation v. Song Hagyun
Claim Number: FA2002001883977
Complainant is Coupang Corporation (“Complainant”), represented by B. Brett Heavner of Finnegan, Henderson, Farabow, Garrett & Dunner, L.L.P., District of Columbia, United States. Respondent is Song Hagyun (“Respondent”), South Korea.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <coopangkorea.com>, registered with Gabia, Inc.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 20, 2020; the Forum received payment on February 20, 2020.
On February 23, 2020, Gabia, Inc. confirmed by e-mail to the Forum that the <coopangkorea.com> domain name is registered with Gabia, Inc. and that Respondent is the current registrant of the name. Gabia, Inc. has verified that Respondent is bound by the Gabia, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On February 24, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 16, 2020 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@coopangkorea.com. Also on February 24, 2020, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On March 18, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of a response from Respondent.
preliminary issue: Language of the Proceeding
UDRP Rule 11 provides that, in the ordinary course, the language of this proceeding should be the language of the registration agreement governing the subject domain name, which is Korean. The same Rule also provides that this Panel has discretion to change the language of the proceeding “having regard to the circumstances of the proceeding.” In light of this provision,
Complainant requests that this proceeding be conducted in the English language. In support of its request, Complainant contends that:
a. The domain name in issue is rendered in English, which signals that Respondent is conversant with English;
b. Complainant’s authorized representative’s working language is English; and
c. the translation of all pertinent documents into Korean would impose upon Complainant a significant burden of cost and inordinately delay the proceeding.
Inasmuch as Respondent does not counter any of these assertions, and in light of the fact that Respondent has failed to appear and defend against the allegations of the Complaint, the Panel determines that it is in the interests of justice that Complainant’s request be granted. Accordingly, this proceeding will, in all particulars, be conducted in the English language. See, for example, The Argento Wine Company Limited v. Argento Beijing Trading Company, D2009-0610 (WIPO July 1, 2009) (the panel there exercising its discretion under Rule 11 in deciding that the language of a proceeding should be English, rather than the language of the relevant registration agreement, based upon evidence that the UDRP respondent before it had command of the English language).
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is a Korean corporation and one of the largest and fastest-growing online retail shopping companies in the world.
Complainant holds a registration for the COUPANG service mark, which is on file with the United States Patent and Trademark Office (“USPTO”) as Registry No. 5,173,689, registered April 4, 2017.
Respondent registered the domain name <coopangkorea.com> on or about July 3, 2019.
The domain name is confusingly similar to Complainant’s COUPANG mark.
Respondent has not been commonly known by the domain name.
Respondent is not authorized to use the Complainant’s COUPANG mark.
Respondent fails to use the domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use.
Instead, the domain name resolves to an inactive webpage.
Respondent lacks rights to or legitimate interests in the domain name.
The domain name is an instance of typo-squatting.
Respondent knew of Complainant’s rights in the COUPANG mark prior to its registration of the domain name.
Respondent registered and uses the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights to or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used by Respondent in bad faith.
In view of Respondent's failure to submit a response, the Panel will, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules, decide this proceeding on the basis of Complainant's undisputed representations, and, pursuant to paragraph 14(b) of the Rules, draw such inferences as it deems appropriate. The Panel is entitled to accept as true all reasonable claims and inferences set out in the Complaint unless the supporting evidence is manifestly contradictory. See, for example, Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (finding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP complaint to be deemed true). But see eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [...] the Panel finds it appropriate to dismiss the Complaint”).
Complainant has rights in the COUPANG service mark sufficient for purposes of Policy ¶ 4(a)(i) by virtue of its registration of the mark with a national trademark authority, the USPTO. See, for example, DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum December 30, 2018):
Complainant’s ownership of a USPTO registration for … [its mark] … demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).
This is true without regard to whether Complainant’s rights in its mark arise from registration of the mark in a jurisdiction (here the United States) other than that in which Respondent resides or does business (here South Korea). See, for example, W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Forum August 24, 2010):
[T]he Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.
Turning to the central question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <coopangkorea.com> domain name is confusingly similar to Complainant’s COUPANG service mark. The domain name incorporates the mark in its entirety, save for the substitution of the letter “o” for the letter “u,” and the addition of the geographic term “korea,” which identifies Complainant’s country of origin, plus the generic Top Level Domain (“gTLD”) “.com.” These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy. See, for example, Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding that a domain name, the core of which differed by only one letter from a UDRP complainant’s trademark, had a tendency to be confusingly similar to that mark).
See also Lucasfilm Entertainment Company Ltd. LLC v George Ring, FA 1673825 (Forum June 7, 2016) (finding that, where a UDRP respondent’s domain name, <lukasfilm.com>, incorporated the LUCASFILM mark of another, merely substituting a phonetically identical ‘k’ for the ‘c,’ it was confusingly similar to that mark).
Further see Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Forum September 27, 2002):
\[I]t is a well-established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.
This is because every domain name requires a gTLD or other TLD.
Under Policy ¶ 4(a)(ii), Complainant must make out a prima facie showing that Respondent lacks rights to and legitimate interests in the domain name <coopangkorea.com>, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum August 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Forum September 25, 2006):
Complainant must … make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO December 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless they are clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c)(i)-(iii), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name that are cognizable under the Policy.
We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the domain name <coopangkorea.com>, and that Complainant has not authorized Respondent to use the COUPANG mark. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Song Hagyun,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the disputed domain name so as to have acquired rights to or legitimate interests in it within the ambit of Policy ¶ 4(c)(ii). See, for example, Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum September 4, 2018) (concluding that a respondent was not commonly known by a disputed domain name incorporating the GOOGLE mark where the relevant WHOIS record identified that respondent as “Bhawana Chandel,” and nothing in the record showed that that respondent was authorized to use a UDRP Complainant’s mark in any manner). See also Navistar International Corporation v. N Rahmany, FA 620789 (Forum June 8, 2015) (finding, under Policy ¶ 4(c)(ii), that a respondent was not commonly known by a disputed domain name where a UDRP complainant had not authorized that respondent to incorporate its mark in a domain name).
We next observe that Complainant asserts, without objection from Respondent, that Respondent fails to use the <coopangkorea.com> domain name in connection with either a bona fide offering of goods or services or a legitimate noncommercial or fair use, in that the domain name resolves to an inactive webpage, so that it is not put to any active use. This passive employment of the domain name, which has evidently marked its entire history in the nearly three years since it was registered, is neither a bona fide offering of goods or services by means of it under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of it under Policy ¶ 4(c)(iii) such as would confirm in Respondent rights to or legitimate interests in the domain name as provided in those subsections of the Policy. See, for example, CrossFirst Bankshares, Inc. v Yu-Hsien Huang, FA 1785415 (Forum June 6, 2018):
Complainant demonstrates that Respondent fails to actively use the disputed domain name as it resolves to an inactive website. Therefore, the Panel finds that Respondent fails to actively use the disputed domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii).
The Panel therefore finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that the <coopangkorea.com> domain name is an instance of typo-squatting, i.e.: the deliberate misspelling of the mark of another in creating a domain name in order to take advantage of common spelling errors made by Internet users in entering into their web browsers the names of enterprises with which they wish to do business online. Typo-squatting, without more, is evidence of bad faith registration and use of a domain name. See, for example, Under Armour, Inc. v. JEFF RANDALL, FA1585022 (Forum November 18, 2014) (finding that a UDRP respondent’s <unerarmour.com> domain name constituted typo-squatting of a complainant’s UNDER ARMOUR mark, which stood as evidence of bad faith registration and use of that domain name under Policy ¶ 4(a)(iii)).
We are also convinced by the evidence that Respondent registered the <coopangkorea.com> domain name while knowing of Complainant’s rights in the COUPANG mark. This further demonstrates Respondent’s bad faith in registering the domain name. See, for example, Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum February 6, 2014):
The Panel … here finds actual knowledge [of a UDRP complainant’s rights in a mark when a respondent registered a confusingly similar domain name, and thus that respondent’s bad faith in registering it] through the name used for the domain and the use made of it.
And, in light of Complainant’s uncontested allegation that it is one of the largest and fastest-growing online retail shopping companies in the world, see also AutoZone Parts, Inc. v. Ken Belden, FA 1815011 (Forum December 24, 2018):
Complainant contends that Respondent’s knowledge can be presumed in light of the substantial fame and notoriety of the … mark, as well as the fact that Complainant is the largest retailer in the field. The Panel here finds that Respondent did have actual knowledge of Complainant’s mark, demonstrating bad faith registration … under Policy ¶ 4(a)(iii).
The Panel thus finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <coopangkorea.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: March 19, 2020
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