Quantum Bioengineering, Ltd. v. Bicon Korea Corp.
Claim Number: FA0710001094612
Complainant is Quantum Bioengineering, Ltd. (“Complainant”), represented by Jesus
Sanchelima, of Sanchelima & Associates, P.A.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <quantumimplant.com>, registered with Yesnic Co. Ltd.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On October 31, 2007, a Korean language Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 20, 2007 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@quantumimplant.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Pursuant to Rule 11(a) the Panel determines that the language requirement has been satisfied through the Korean language Complaint and Commencement Notification and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <quantumimplant.com> domain name is confusingly similar to Complainant’s QUANTUM mark.
2. Respondent does not have any rights or legitimate interests in the <quantumimplant.com> domain name.
3. Respondent registered and used the <quantumimplant.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Quantum Bioengineering, Ltd.,
manufactures dental implants.
Complainant has used the QUANTUM mark for dentistry implants since as
early as
Respondent registered the <
quantumimplant.com> domain name on
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."
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
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:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
Complainant has established rights in the QUANTUM mark. Complainant owns a trademark registration
with the USPTO. The Panel finds that
where Complainant has submitted evidence of a valid trademark registration, Policy
¶ 4(a)(i) has been satisfied. See Lockheed Martin Corp. v. Hoffman, FA 874152 (Nat. Arb. Forum
Respondent’s <quantumimplant.com>
domain name is confusingly similar to Complainant’s mark. Respondent’s domain name contains
Complainant’s entire QUANTUM mark and adds the generic term “implant”, which
describes goods offered under Complainant’s mark, along with the generic top-level
domain (“gTLD”) “.com.” The Panel finds
that Respondent’s additions to an otherwise unchanged mark fail to distinguish
Respondent’s domain name from Complainant’s mark in any meaningful way for
purposes of Policy ¶ 4(a)(i). See Brown & Bigelow, Inc.
v. Rodela, FA 96466 (Nat. Arb. Forum Mar. 5, 2001) (finding
that the <hoylecasino.net> domain name is confusingly similar to the
complainant’s HOYLE mark, and that the addition of “casino,” a generic word
describing the type of business in which the complainant is engaged, does not
take the disputed domain name out of the realm of confusing similarity); see also Am. Int’l Group, Inc. v. Ling Shun Shing, FA 206399 (Nat.
Arb. Forum Dec. 15, 2003) (finding that the addition of the term “assurance,”
to the complainant’s AIG mark failed to sufficiently differentiate the name
from the mark under Policy ¶ 4(a)(i) because the appended term related directly
to the complainant’s business); see also Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(i)
has been satisfied.
While Complainant has alleged that Respondent does not have
rights or legitimate interests in the <quantumimplant.com>
domain name, Complainant has failed to allege Respondent’s use of the domain
name and has failed to set forth sufficient evidence of bad faith registration
and use. Complainant merely restates the
Policy language in its Complaint and little else. The Panel finds that without any knowledge of
Respondent’s use, the Panel has no choice but to deny Complainant’s claim. See <quantumimplant.com>
domain name; see also Claessens Prod. Consultants BV v.
Claessens Int’l Ltd., FA 238656 (Nat. Arb.
Forum Apr. 23, 2004) (finding that Complainant failed to meet its burden
pursuant to Policy ¶ 4(a)(ii) where Complainant neglected to state how
Respondent used the disputed domain name in the Complaint).
Having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Sandra J. Franklin, Panelist
Dated: December 7, 2007
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