Pacific Theatres Entertainment
Corporation v. Jun Kim
Claim
Number: FA0506000495374
Complainant, Pacific Theatres Entertainment Corporation (“Complainant”),
is represented by Steven D. Hemminger of White & Case LLP,
3000 El Camino Real, 5 Palo Alto Square, 10th Floor, Palo Alto, CA 94306. Respondent is Jun Kim (“Respondent”), 111
– 18, Silim2 – Dong, Seoul, KR 151-274, KR.
REGISTRAR
AND DISPUTED DOMAIN NAME
The
domain name at issue is <consolidatedtheatres.com>, registered
with Tucows Inc.
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
Franklin as Panelist.
Complainant
submitted a Complaint to the National Arbitration Forum electronically on June
10, 2005; the National Arbitration Forum received a hard copy of the Complaint
on June 13, 2005.
On
June 13, 2005, Tucows Inc. confirmed by e-mail to the National Arbitration
Forum that the domain name <consolidatedtheatres.com> is
registered with Tucows Inc. and that Respondent is the current registrant of
the name. Tucows Inc. has verified that
Respondent is bound by the Tucows 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
June 16, 2005, a Notification of Complaint and Commencement of Administrative
Proceeding (the “Commencement Notification”), setting a deadline of July 6,
2005 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@consolidatedtheatres.com by e-mail.
Having
received no Response from Respondent, using the same contact details and
methods as were used for the Commencement Notification, the National
Arbitration Forum transmitted to the parties a Notification of Respondent
Default.
On
July 12, 2005, pursuant to Complainant's request to have the dispute decided by
a single-member Panel, the National Arbitration Forum appointed Sandra Franklin
as Panelist.
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.
Complainant
requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <consolidatedtheatres.com>
domain name is identical to Complainant’s CONSOLIDATED THEATRES mark.
2. Respondent does not have any rights or
legitimate interests in the <consolidatedtheatres.com> domain
name.
3. Respondent registered and used the <consolidatedtheatres.com>
domain name in bad faith.
B. Respondent failed to submit a Response in
this proceeding.
Complainant
distributes motion pictures and operates various movie theaters. Complainant has used the mark CONSOLIDATED
THEATRES in connection with movie theaters in Hawaii since 1959. Complainant owns and operates eleven movie
theaters in Hawaii. Moreover,
Complainant’s mark, CONSOLIDATED THEATRES, is registered in Hawaii for the
purpose of providing movie theater services (Reg. No. 242419, issued Aug. 2,
1999).
Complainant
registered the <consolidatedtheatres.com> domain name in May 1997
with Network Solutions. The
registration for the disputed domain name was due for renewal on May 30,
2004. Two months prior to the due date,
Complainant attempted to pay the renewal fee and discovered that the domain
name had been transferred from Network Solutions to another domain name
registrar, Tucows, Inc. Complainant had
not requested or authorized a transfer of the disputed domain name. Upon contacting Tucows to investigate the
unauthorized transfer, Complainant was informed that Tucows would not be able
to release any information about the transfer of the domain name. Complainant attempted to contact Respondent,
the listed administrative contact for the domain name, but was unsuccessful.
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.
This case involves
Complainant’s contention that Respondent’s acquisition of the <consolidatedtheatres.com>
domain name was by fraud or theft.
However, the Policy was established with the purpose of curtailing
abusive domain name registrations, an activity known as “cybersquatting,” which
involves registering domain names in order to attempt to benefit from a
trademark holder’s rights in a mark that corresponds to the domain name. This case potentially involves a fraudulent
registration transfer, which is likely a dispute that should be determined in a
court of law. Thus, the Panel finds
that this case is outside the scope of the Policy. See Decker v. Antwer,
FA 263584 (Nat. Arb. Forum June 28, 2004) (“[S]ince the instant case does not
involve the practice of cybersquatting and is more accurately described as a
fraudulent registration transfer, the Panel finds that this dispute may be more
suitable in a court of law as it exceeds the scope of the Policy.”); see also Commercial Publ’g Co. v.
EarthComm., Inc., FA 95013 (Nat. Arb. Forum July 20, 2000) stating
that the Policy’s administrative procedure is “intended only for the relatively
narrow class of cases of ‘abusive registrations.’”
Having failed to
establish the elements required under the ICANN Policy, the Panel concludes
that relief shall be DENIED.
Sandra Franklin, Panelist
Dated:
July 22, 2005
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