Hydranautics v. YeonHo Jeon
Claim Number: FA0604000684384
Complainant is Hydranautics (“Complainant”), represented by Donald G. Rez, of Sullivan, Hill, Lewin, Rez & Engel, 550 West C Street, Suite 1500, San Diego, CA 92101-3540. Respondent is YeonHo Jeon (“Respondent”), Jungheung Maeul Jung 3-dong Bucheon Si Wonmi-gu, Gyeonggi-do 420-728, KR.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <hydranauticskorea.com>, registered with Communigal Communications Ltd.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 19, 2006; the National Arbitration Forum received a hard copy of the Complaint on April 21, 2006.
On April 23, 2006, Communigal Communications Ltd confirmed by e-mail to the National Arbitration Forum that the <hydranauticskorea.com> domain name is registered with Communigal Communications Ltd and that Respondent is the current registrant of the name. Communigal Communications Ltd has verified that Respondent is bound by the Communigal Communications Ltd 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 May 1, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 22, 2006 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@hydranauticskorea.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On May 31, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson 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 <hydranauticskorea.com> domain name is confusingly similar to Complainant’s HYDRANAUTICS mark.
2. Respondent does not have any rights or legitimate interests in the <hydranauticskorea.com> domain name.
3. Respondent registered and used the <hydranauticskorea.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Hydranautics, produces a wide variety of membrane products for the water treatment industry. Complainant was incorporated in California around 1975 and has continuously used the HYDRANAUTICS mark in connection with its water treatment products since 1977. Complainant has registered the HYDRANAUTICS mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,458,214 issued September 22, 1987). Complainant also operates a website at the <hydranautics.com> domain name (registered on April 16, 1996).
Respondent registered the <hydranauticskorea.com> domain name on March 29, 2004. Respondent is using the disputed domain name to operate a website selling water treatment products that compete with the water treatment products Complainant offers under its HYDRANAUTICS mark.
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. 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 HYDRANAUTICS mark
pursuant to Policy ¶ 4(a)(i) through registration of the mark with the
USPTO. Innomed
Techs., Inc. v. DRP Servs., FA 221171
(Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the
USPTO establishes Complainant's rights in the mark.”); see also Vivendi
Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11,
2003) (“Complainant's federal trademark registrations establish Complainant's
rights in the BLIZZARD mark.”)
Moreover, Respondent’s <hydranauticskorea.com> domain name is confusingly similar to Complainant’s registered HYDRANAUTICS mark because it incorporates the entire mark and merely adds the geographic identifier “korea.” The mere addition of the geographic identifier “korea” to Complainant’s mark does not sufficiently differentiate the <hydranauticskorea.com> domain name from the mark and thus renders the disputed domain name confusingly similar to the mark under Policy ¶ 4(a)(i). Laboratoires De Biologie Vegetale Yves Rocher v. Choi, FA 104201 (Nat. Arb. Forum Mar. 22, 2002) (holding that the <yveskorea.com> domain name was confusingly similar to the complainant’s YVES ROCHER mark even though the domain name was only similar in part).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant maintains that Respondent does not have rights
to or legitimate interests in the disputed domain name. Complainant has the initial burden of proof
in establishing that Respondent has no rights or legitimate interests in the
domain name. Once Complainant makes a prima
facie case in support of its allegations, the burden then shifts to
Respondent to show it does have rights or legitimate interests pursuant to
Policy ¶ 4(a)(ii). Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228
(WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere
assertion by the complainant that the respondent has no right or legitimate
interest is sufficient to shift the burden of proof to the respondent to
demonstrate that such a right or legitimate interest does exist); see also
G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because
Complainant’s Submission constitutes a prima facie case under the
Policy, the burden effectively shifts to Respondent. Respondent’s failure to
respond means that Respondent has not presented any circumstances that would
promote its rights or legitimate interests in the subject domain name under
Policy ¶ 4(a)(ii).”).
Respondent’s failure to answer the Complaint raises a
presumption that Respondent has no rights or legitimate interests in the
disputed domain name. Pavillion Agency, Inc. v. Greenhouse Agency
Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that the respondents’ failure
to respond can be construed as an admission that they have no legitimate
interest in the domain names); see also Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000)
(finding that by not submitting a response, the respondent has failed to invoke
any circumstance which could demonstrate any rights or legitimate interests in
the domain name). However, the Panel will now examine the record to determine
if Respondent has rights or legitimate interests under Policy ¶ 4(c).
Respondent is not commonly known by the <hydranauticskorea.com>
domain name, because the WHOIS information lists “YeonHo Jeon” as the
registrant of the domain name, and there is no other evidence in the record to
suggest that Respondent is commonly known by the <hydranauticskorea.com>
domain name. Thus, Respondent does not
have any rights or legitimate interests in the disputed domain name pursuant to
Policy ¶ 4(c)(ii). Ian Schrager Hotels, L.L.C. v. Taylor, FA 173369 (Nat. Arb. Forum Sept. 25, 2003) (finding that
without demonstrable evidence to support the assertion that a respondent is
commonly known by a domain name, the assertion must be rejected).
Furthermore, Respondent is using the <hydranauticskorea.com>
domain name to redirect Internet users to a website selling water treatment
products that compete with Complainant.
The Panel finds that Respondent is not using the disputed domain name in
connection with a bona fide offering of goods or services under Policy ¶
4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii) by
diverting Internet users to a competing website for commercial gain. Computerized Sec. Sys., Inc. v. Hu,
FA 157321 (Nat. Arb. Forum June 23, 2003) (“Respondent’s appropriation of
[Complainant’s] SAFLOK mark to market products that compete with Complainant’s
goods does not constitute a bona fide offering of goods and services.”); see
also Oregon State Bar v. A Special Day, Inc., FA 99657 (Nat. Arb. Forum Dec. 4, 2001) (“Respondent's
advertising of legal services and sale of law-related books under Complainant's
name is not a bona fide offering of goods and services because Respondent is
using a mark confusingly similar to the Complainant's to sell competing
goods.”).
The Panel
finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is diverting Internet users seeking Complainant’s
water treatment products to its own website at the <hydranauticskorea.com>
domain name for commercial gain, because Respondent’s website is
offering competing products. The Panel
finds that Respondent is taking advantage of the confusing similarity between
the disputed domain name and Complainant’s HYDRANAUTICS mark in order to profit
from the goodwill associated with the mark in violation of Policy ¶
4(b)(iv). America Online, Inc. v. Tencent Communications Corp., FA 93668
(Nat. Arb. Forum Mar. 21, 2000) (finding bad faith where the respondent
registered and used a domain name confusingly similar to the complainant’s mark
to attract users to a website sponsored by the respondent); see also Nokia Corp. v. Private, D2000-1271 (WIPO Nov. 3, 2000) (finding bad
faith registration and use pursuant to Policy ¶ 4(b)(iv) where the domain name
resolved to a website that offered similar products as those sold under the
complainant’s famous mark).
Furthermore,
Respondent’s use of the <hydranauticskorea.com> domain name to
operate a competing website suggests that Respondent has registered and used the
disputed domain name for the primary purpose of disrupting Complainant’s
business. Consequently, Respondent has
registered and used the disputed domain name in bad faith pursuant to Policy ¶
4(b)(iii). S. Exposure v. S. Exposure, Inc., FA
94864 (Nat. Arb. Forum July 18, 2000) (finding the respondent acted in bad
faith by attracting Internet users to a website that competes with the
complainant’s business); see also Disney Enters.,
Inc. v. Noel, FA 198805 (Nat. Arb. Forum
Nov. 11, 2003) (“Respondent registered a domain name confusingly similar to
Complainant's mark to divert Internet users to a competitor's website. It is a
reasonable inference that Respondent's purpose of registration and use was to
either disrupt or create confusion for Complainant's business in bad faith
pursuant to Policy ¶¶ 4(b)(iii) [and] (iv).”).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <hydranauticskorea.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: June 13, 2006
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