GREENPC INC. v. Lee Joohee
Claim Number: FA0606000724509
Complainant is GREENPC INC. (“Complainant”), 102-15910 Fraser Hwy. Box #810 Surrey, BC, Canada V3S 2P3. Respondent is Lee Joohee (“Respondent”), Woosung Apt 303-1502, Sadangdong Dongjakgu, Seoul 156-773, Korea.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <greenpc.com>, registered with Enom, 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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 1, 2006; the National Arbitration Forum received a hard copy of the Complaint on June 7, 2006.
On June 1, 2006, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <greenpc.com> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, 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 14, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of July 5, 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@greenpc.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On July 11, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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:
Complainant provides computer repair services and sells refurbished computers, and owns a trademark for the GREENPC mark in Canada (Reg. No. 1,161,952, filed December 16, 2002, issued October 26, 2004).
Complainant’s first use of the GREENPC mark dates from November 1, 2002.
Respondent registered the <greenpc.com> domain name on March 26, 2003.
Respondent has never actively employed the disputed domain name, but merely holds for possible sale, and has offered to sell it to Complainant for USD 9,800.00.
Respondent’s <greenpc.com> domain name is identical to Complainant’s mark.
Respondent does not have any rights or legitimate interests in the <greenpc.com> domain name.
Respondent registered and uses the <greenpc.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is substantively identical to a trademark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
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 a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true).
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:
i. the domain name registered by Respondent is identical or confusingly similar to a
trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant’s Canadian trademark registration establishes its rights in its GREENPC mark. See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004): “Registration of the NASAL-AIRE mark with the USPTO [United States Patent and Trademark Office] establishes Complainant's rights in the mark.”
Moreover,
while the registration of Respondent’s domain name predates the registration of
Complainant’s mark, it is well settled that the operative date for purposes of
time priority as between Complainant’s mark and Respondent’s domain name is the
filing date of Complainant’s mark registration application. See, for example, Little House Publishing Limited
v. Davis, D2004-0508 (WIPO
Oct. 3, 2004). Here Complainant filed
its mark registration application in December of 2002, months before Respondent
registered the disputed domain name in March of 2003. Accordingly, Complainant has prior rights in its mark sufficient
for purposes of the Policy. We
turn then to the core question of identity-confusing similarity.
On the point of identity, it is undisputed that Respondent’s domain name is substantively identical to Complainant’s mark pursuant to Policy ¶ 4(a)(i), inasmuch as the domain name contains Complainant’s entire mark combined with a generic top-level domain name. This addition is not enough to negate the identity between Respondent’s domain name and Complainant’s mark. See Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Nat. Arb. Forum May 27, 2003): “The addition of a top-level domain is irrelevant when establishing whether or not a mark is identical or confusingly similar, because top-level domains are a required element of every domain name.”
The Panel therefore finds that Policy ¶ 4(a)(i) has not been satisfied.
Complainant alleges that Respondent lacks rights or legitimate interests in the <greenpc.com> domain name. Complainant must first make out a prima facie case in support of its allegations. The burden then shifts to Respondent to show that it does have rights or legitimate interests in its domain pursuant to Policy ¶ 4(a)(ii). See, for example, Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once a complainant asserts that a respondent has no rights or legitimate interests with respect to a domain, the burden shifts to that respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”); see also Woolworths plc. v. Anderson, D2000-1113 (WIPO Oct. 10, 2000).
Moreover, Respondent’s failure to answer the Complaint in
this proceeding raises a presumption that Respondent lacks rights or legitimate
interests in the disputed domain names.
See Am.
Express Co. v. Fang Suhendro, FA
129120 (Nat. Arb. Forum Dec. 30, 2002): “[B]ased on Respondent's failure to
respond, it is presumed that Respondent lacks all rights and legitimate
interests in the disputed domain name.”
Further see Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate for a panel to draw adverse inferences from a respondent’s failure to reply to a complaint). However, the Panel will nonetheless examine the record to determine if there is any evidence to support the proposition that Respondent has rights or legitimate interests under Policy ¶ 4(c).
In this connection, we first observe that there is no evidence in the record to suggest that Respondent is or has ever been known by the disputed domain name. Likewise Respondent’s WHOIS information does not suggest that Respondent is commonly known by the disputed domain name. See 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). Accordingly, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
We first observe under this heading that Respondent
evidently registered the contested domain name with at least constructive
knowledge of Complainant’s rights in the GREENPC mark by virtue of
Complainant’s prior application for registration of that mark with the
pertinent national authorities.
Registration of a substantively identical domain name despite such
constructive knowledge evidences bad faith registration of the domain name
pursuant to Policy ¶ 4(a)(iii). See Digi
Int’l v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002); see also Orange Glo Int’l v. Blume,
FA 118313 (Nat. Arb. Forum Oct. 4, 2002).
It is, of course, a separate question whether Respondent is also using the disputed domain name in bad faith within the meaning of the Policy. In this connection, Complainant does not allege active employment of the domain name, and indeed it does not resolve to any website or other on-line presence, nor is there any evidence to suggest that a website or other on-line presence is in the process of being established for it. These facts, standing alone, might seem to indicate the absence of bad faith use of the contested domain name as contemplated in Policy ¶ 4(a)(iii). However, “it is possible, in certain circumstances, for inactivity by the Respondent to amount to the domain name being used in bad faith.” Telstra Corp. Ltd. v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000).
The circumstances of this case illustrate such a situation. Although Respondent has held its registration of the contested domain for more than three years, there is no evidence of any intent on the part of Respondent for any good faith commercial or non-commercial use of the name. And it is undisputed that, despite the fact that the domain has no evident commercial presence, Respondent has offered to sell the domain to Complainant for just under USD 10,000, a sum patently greater than Respondent’s cost to acquire and maintain the name. This is strong evidence of bad faith. See National Federation of Coffee Growers of Columbia v. Harrison, D2002-1134 (WIPO Feb. 17, 2002). Indeed, Respondent does not deny Complainant’s allegation to the effect that Respondent’s sole aim in registering the name was to profit from its eventual sale.
In these circumstances, the Panel has no difficulty in concluding that Respondent registered and is using the contested domain name in bad faith, so that the requirements of Policy ¶ 4(a)(iii) have been satisfied.
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is Ordered that the <greenpc.com> domain
name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: July 21, 2006
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