Fibrart SA de CV v. Yang Kyung Won
Claim Number: FA1602001661034
Complainant is Fibrart SA de CV (“Complainant”), Mexico. Respondent is Yang Kyung Won (“Respondent”), Korea.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <fibrart.com>, registered with Megazone Corp., dba HOSTING.KR.
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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 15, 2016; the Forum received payment on February 22, 2016.
On February 26, 2016, Megazone Corp., dba HOSTING.KR confirmed by e-mail to the Forum that the <fibrart.com> domain name is registered with Megazone Corp., dba HOSTING.KR and that Respondent is the current registrant of the name. Megazone Corp., dba HOSTING.KR has verified that Respondent is bound by the Megazone Corp., dba HOSTING.KR 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 March 2, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 22, 2016 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@fibrart.com. Also on March 2, 2016, 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 28, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Darryl C. Wilson, as Panelist.
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 any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Policy ¶ 4(a)(i)
Complainant has rights in the FIBRART mark through its registration with the Mexican Institute of Industrial Property (“MIIP”). Respondent’s <fibrart.com> domain name is identical to the FIBRART mark because it contains the entire mark with only the addition of the generic top-level domain (“gTLD”) “.com.”
Policy ¶ 4(a)(ii)
Respondent is not commonly known by the <fibrart.com> domain name. Respondent fails to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because the resolving website hosts links to products of Complainant’s competitors.
Policy ¶ 4(a)(iii)
Respondent uses the <fibrart.com> domain name in bad faith because Respondent has offered the domain for sale for $19,500.00 and because the resolving website hosts links to products of competitors to Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is Fibrart SA de CV of Jalisco, Mexico. Complainant is the owner of the domestic registration for the mark FIBRART which it has continuously used since at least as early as 2006 in connection with the provision of goods and services in International Class 28, which is designated as Toys and Sporting Goods.
Respondent is Yang Kyung Won of Seoul, South Korea. Respondent’s registrar’s address shares the same location. The Panel notes that the <fibrart.com> domain name was created on or about September 24, 2010.
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:
(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.
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(f), 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.”).
Panel Note: Supported Language Request
The Panel notes that Complainant requests the language of this administrative proceeding proceed in English pursuant to UDRP Rule 11(a). Complainant makes this request in light of the Korean language Registration Agreement. It is established practice to take UDRP Rules 10(b) and (c) into consideration for the purpose of determining the language of the proceeding to ensure fairness and justice to both parties. Complainant notes that the resolving website is displayed in English and that Respondent has engaged in communications with Complainant conducted in English. Factors which previous panels have seen as particularly compelling are: WHOIS information which establishes Respondent in a country which would evince a familiarity with the English language, filing of a trademark registration with an entity which evinces an understanding of the English language, and any evidence (or lack thereof) evincing Respondent’s understanding of the Korean language included in the Registration Agreement. See The Argento Wine Company Limited v. Argento Beijing Trading Company, D2009-0610 (WIPO July 1, 2009) (panel exercising discretion in deciding that the language of the proceedings advance in English, contrary to the Registration Agreement, based on evidence that respondent has command of the language). Further, the Panel may weigh the relative time and expense in enforcing the Korean language agreement, which would result in prejudice toward either party. See Finter Bank Zurich v. Shumin Peng, D2006-0432 (WIPO June 12, 2006) (deciding that the proceeding should be in English, stating, “It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her ability to articulate the arguments for the case.”).
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been provided by the Complainant to suggest the likely possibility that Respondent is conversant and proficient in the English language. After considering the circumstance of the present case, the Panel decides that the proceeding should be in English.
Complainant claims it has rights in the FIBRART mark through its registration with the MIIP. Complainant has provided evidence of this registration. The Panel finds this evidence sufficient to indicate that Complainant has rights in the FIBRART mark according to Policy ¶ 4(a)(i). See Teck Res. Ltd. v. Amexa Ltda., FA 1420960 (Nat. Arb. Forum Jan. 27, 2012) (finding that a trademark registration with the MIIP was sufficient to establish rights in a mark under Policy ¶ 4(a)(i)).
Complainant does not specifically articulate an argument regarding whether the <fibrart.com> domain name is identical or confusingly similar to the FIBRART mark. However, the Panel notes that the domain differs from the mark only through the addition of the gTLD “.com.” As such, the Panel finds that Respondent’s <fibrart.com> domain name is identical to the FIBRART mark. See Abt Elecs., Inc. v. Ricks, FA 904239 (Nat. Arb. Forum Mar. 27, 2007) (“The Panel also finds that Respondent’s <abt.com> domain name is identical to Complainant’s ABT mark since addition of a generic top-level domain (“gTLD”) is irrelevant when conducting a Policy ¶ 4(a)(i) analysis.”).
Respondent makes no contentions with regards to Policy ¶ 4(a)(i).
The Complainant has proven this element.
The Panel recognizes that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name). The Complainant has met this burden.
Complainant does not extensively support its assertion that Respondent is not commonly known by the <fibrart.com> domain name. However, the Panel notes that the available WHOIS information lists “Yank Kyung Won” as Registrant. The Panel finds the record lacking in any evidence that might establish Respondent as commonly known by the disputed domain. The Panel also notes that Respondent has failed to file any response in this proceeding. As such the Panel finds that Respondent is not commonly known by <fibrart.com> pursuant to Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Complainant contends that Respondent fails to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because the resolving website hosts links to products of competitors to Complainant. Complainant has provided evidence of these links, such as “Water Park,” “Agua Water,” and “Splash Mountain Water Park,” in its exhibits. The Panel finds this evidence sufficient to support the conclusion that Respondent fails to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use according to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii). See H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (finding that, because the “[r]espondent’s disputed domain names resolve to a website featuring a series of advertising links to various third-parties, many of whom offer products and services in direct competition with those offered under [the complainant’s] mark,” the respondent is not using the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use).
Respondent makes no contentions with regards to Policy ¶ 4(a)(ii).
As the Respondent has not provided a response to this action, the Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain.
The Complainant has proven this element.
Complainant claims that Respondent uses the <fibrart.com> domain name in bad faith because Respondent has offered the domain for sale to Complainant for $19,500.00. Complainant has provided evidence of this offer. The Panel finds this evidence sufficient to conclude that Respondent uses the <fibrart.com> domain name in bad faith under Policy ¶ 4(b)(i). See Moynahan v. Fantastic Sites, Inc., D2000-1083 (WIPO Oct. 22, 2000) (finding bad faith where the respondent offered to sell the Domain Name to the complainant for $10,000 when the respondent was contacted by the complainant).
Complainant again contends that Respondent uses the <fibrart.com> domain name in bad faith because the resolving website hosts links to products of competitors to Complainant. Complainant has provided evidence of links, such as “Water Park,” “Agua Water,” and “Splash Mountain Water Park.” The Panel finds this evidence sufficient to hold that Respondent has registered and uses the <fibrart.com> domain name in bad faith according to Policy ¶ 4(b)(iii). See Univ. of Texas Sys. v. Smith, FA 1195696 (Nat. Arb. Forum July 7, 2008) (finding that using the resolving website to divert Internet users to the complainant’s competitors constituted bad faith registration and use under Policy ¶ 4(b)(iii)).
Respondent makes no contentions with regards to Policy ¶ 4(a)(iii).
The Complainant has proven this element.
As the Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <fibrart.com> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: April 11, 2016
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