Webplus, Inc. and Talentsoft, Inc. v.
Seungchul Woo
Claim Number: FA0203000105771
PARTIES
The
Complainant is Victor Tong Webplus, Inc.
and Talentsoft, Inc., Eden Prairie, MN (“Complainant”). The Respondent is Seungchul Woo, Kumpo-city Kyunggi-do, KOREA (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAME
The
domain name at issue is <webplus.com>,
registered with Hangang Systems, Inc.
PANEL
The
undersigned certifies that he has acted independently and impartially and to
the best of his knowledge, has no known conflict in serving as Panelist in this
proceeding.
Moon
Sung Lee as Panelist.
PROCEDURAL HISTORY
Complainant
submitted a Complaint to the National Arbitration Forum (“the Forum”)
electronically on March 8, 2002; the Forum received a hard copy of the
Complaint on March 8, 2002.
On
March 8, 2002, Hangang Systems, Inc. confirmed by e-mail to the Forum that the
domain nam <webplus.com> is
registered with Hangang Systems, Inc. and that the Respondent is the current
registrant of the name. Hangang
Systems, Inc. has verified that Respondent is bound by the Hangang Systems,
Inc. registration agreement and has thereby agreed to resolve domain-name
disputes brought by third parties in accordance with ICANN’s Uniform Domain
Name Dispute Resolution Policy (the “Policy”).
On
March 13, 2002, a Notification of Complaint and Commencement of Administrative
Proceeding (the “Commencement Notification”), setting a deadline of April 1,
2002 by which Respondent could file a Response to the Complaint, was transmitted
to Respondent via e-mail, post and fax, to all entities and persons listed on
Respondent’s registration as technical, administrative and billing contacts,
and to postmaster@webplus.com by e-mail.
A
timely Response was received and determined to be complete on April 1, 2002.
On April 12, 2002, pursuant to Complainant’s request to
have the dispute decided by a single-member
Panel, the Forum appointed Moon Sung Lee as
Panelist.
The
language of administrative proceedings of this case is Korean, which, pursuant
to Chapter 11 of the ICANN Rules, is the language of the registration
agreement, and therefore this decision was prepared in Korean.
RELIEF SOUGHT
The
Complainant requests that the domain name be transferred from the Respondent to
the Complainant.
PARTIES’ CONTENTIONS
A.
Complainant
(1) The Complainant
asserts that the domain name of this case is the same as the registered
trademark of the Applicant or that it is similar enough to cause confusion.
(2) Also, the
Complainant asserts that the Respondent should be regarded as not having any
rights to or legitimate interest in the domain name of this case for the
following reasons.
[i.] Before being notified of the dispute
regarding the domain name of this case, the Respondent was not using the domain
name of this case or a name corresponding to such in order to provide goods or
services, nor has he proven that he was making preparations for such use.
[ii.] The Respondent is not commonly known by the domain name of
this case.
[iii.] The Respondent is not using the domain
name of this case for a legitimate
non-commercial
purpose nor is he using it fairly.
(3) The Complainant
asserts for the following reasons that the domain name of this case was
registered and is being used illegitimately.
[i.] The Respondent has attempted to sell the
domain name of this case to the Complainant.
[ii.] The Respondent registered or acquired the
domain name of this case in order to prevent the Complainant from being able to
use the trademark of the Complainant under its corresponding domain name and
the Respondent has committed this kind of action many times.
[iii] The
Respondent linked the domain name of this case to pornographic sites and has
infringed the trademark of the Complainant to gain commercial benefit by
linking Internet users who have confused the trademark of the Complainant with
the domain name of this dispute to pornographic sites.
B.
Respondent
(1)
The Respondent asserts that the domain name of this case is different than the
registered trademark of the Complainant.
(2)
Also, the Respondent asserts that he has rights to and legitimate interest in
the domain name of this case for the following reasons.
[i.] The Respondent acquired the domain name
of this case in August 2001 from a third party for five million Korean won.
[ii.] The Respondent began using the domain name of this case before
receiving notification of this dispute and is using the domain name of this
case to provide helpful link and search services to Internet users at no cost.
Furthermore, he is currently developing a two-way community in order to provide
general web assistance to Internet users.
(3) The
Respondent asserts that he has not proposed selling the domain name of this
case to the Complainant but instead, that has has merely refused requests for
sale from the Complainant, and that the domain name of this case was not
acquired for illegitimate purposes.
FINDINGS
The Complainant is known as Webplus, Inc.
and Talentsoft, Inc. located in Minnesota, USA and registered the trademark "WEB+"
with the US Patent & Trademark Office on November 18, 1997 as trademark number
2,113,584. The Complainant has used the WEB+ trademark since April 1, 1996 to
provide various products and services connected to web applications.
The Respondent obtained the domain name
of this dispute on August 3, 2001. Before receiving notification of the dispute
regarding the domain name of this case, the Respondent linked the domain name of
this case to <xxy.net>, a pornographic site.
DISCUSSION
Article
4, Paragraph (a) of the ICANN Rules requires that the following three
conditions must be proven in order to cancel or issue a transfer order for a
domain name:
(1)
The trademark or service mark in which the Complainant holds rights and the
domain name of the registering party are identical or similar enough to be
confusing;
(2)
The registering party does not have rights to register or a legitimate interest
in registering the domain name; and,
(3)
The registrant registered and is using the domain name for improper purposes.
Identicalness and/or Confusing Similarity
The domain name of
this case <webplus.com> and the trademark registered by the
Complainant (WEB+) are not identical but,
“+” is expressed as “plus” in English and so both have the same meaning and
pronunciation. Therefore, both “webplus” and “WEB+” can be viewed as being
similar enough to be confused.
Therefore,
the domain name of this case is judged to satisfy the condition of being
identical and/or confusingly similar.
Rights and/or Legitimate Interest
The
Respondent is not known widely to ordinary people by the domain name of this
case and has not proven that he was using the domain name of this case to
provide goods and services before receiving notification of this dispute
regarding the domain name. Also, as the Respondent is not using the domain name
of this case for a legitimate non-commercial purpose or using it fairly, the
Respondent is evaluated as not having any rights to or legitimate interest in
the domain name of this case.
Use for Illegitimate Purposes
Article
4, Paragraph (b) of the ICANN Rules provides four examples of cases where the
purpose of registration or use of a domain name can be judged as illegitimate.
Article 4, Paragraph (b), Item (i) of the
ICANN Rules is regarding the acquisition of a domain name for the purpose of
selling it. Article 4, Paragraph (b), Item (ii) of the ICANN Rules is regarding
the acquisition of a domain name in order to prevent the Applicant from using
it. Article 4, Paragraph (b), Item (iii) of the ICANN Rules is
regarding
interference in the business of a competitor. Article 4, Paragraph (b), Item
(iv) of the ICANN Rules is regarding the use of a domain name with the purpose
of confusing visitors into thinking that the online location of the Respondent
is a location related to the Complainant.
According to
evidence submitted by the Complainant, it is true that the Complainant first
proposed to the Respondent the sale of the domain name of this case but it is
also true that the Respondent agreed to this sale proposal. Also, after the
Respondent asked the Complainant how much the Complainant was willing to pay
for the domain name of this case, Respondent then rejected the sale immediately
when the Complainant proposed a price of US$350. Based on this, it can be
assumed that the Respondent had intention to sell the domain name of this case
for a high price. Also, as the Respondent linked the domain name of this case
to pornographic sites, the Respondent induced the linkage of Internet users who
confused the Complainant’s trademark and the domain name of this case to such
pornographic sites. This can be judged as being as a case where the Respondent used
the domain name to gain commercial benefit by causing confusion between the web
site of the Respondent and the trademark of the Complainant.
By putting these
points together, this Panel determines that the Respondent is using the domain
name of this case for illegitimate purposes. .
DECISION
Therefore, based on all of the above
reasons, the decision is made to transfer the domain name <webplus.com
from the Respondent to the Complainant.
Moon-Sung Lee
April 26, 2002
Click Here to return
to the main Domain Decisions Page.
Click
Here to return to our Home Page