Syncrude
Canada Ltd. v. Jinunet.com a/k/a Shindug Choi
Claim Number: FA0108000099586
PARTIES
Complainant is Syncrude Canada Ltd., Fort McMurray, AB, Canada (“Complainant”) represented by Corinne H. Carlson, of Lucas, Bowker & White. Respondent is Shindug Choi Jinunet.com, Seoul, South Korea (“Respondent”).
REGISTRAR AND
DISPUTED DOMAIN NAME
The domain name at issue is <syncrude.org>, registered with Network Solutions, Inc..
PANEL
On October 4, 2001 pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed James P. Buchele as Panelist. 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.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on August 28, 2001; the Forum received a hard copy of the Complaint on August 30, 2001.
On August 30, 2001, Network Solutions, Inc. confirmed by e-mail to the Forum that the domain name <syncrude.org> is registered with Network Solutions, Inc. and that Respondent is the current registrant of the name. Network Solutions, Inc. has verified that Respondent is bound by the Network Solutions, Inc. 5.0 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 August 31, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of September 20, 2001 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@syncrude.org by e-mail.
Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.
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.” 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.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from the Respondent to the Complainant.
PARTIES’ CONTENTIONS
A. Complainant
The <syncrude.org> domain name is confusingly similar to Complainant's SYNCRUDE mark.
Respondent has no rights or legitimate interests in respect to the <syncrude.org> domain name.
Respondent registered and passively held the <syncrude.org> domain name in bad faith.
B. Respondent
The Respondent has failed to submit a response.
FINDINGS
Since September 17, 1978, Complainant has used the SYNCRUDE mark in relation to its crude oil operations in Canada and abroad. Complainant is the largest single source producer of crude oil in Canada.
Complainant's mark SYNCRUDE has been registered with the Canadian Intellectual Property Office since June 20, 1983 under trademark registration number TMA280973.
Respondent registered the <syncrude.org> domain name in March of 2000. Respondent is not commonly known by <syncrude.org>. Respondent has not developed a website at the domain. Respondent has offered the domain name for sale to the Complainant. In offering the domain name for sale the Respondent said that the offer was based on Complainant recognizing the "high value of this domain" and presenting a "well-matched price."
DISCUSSION
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 the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules.
Paragraph 4(a) of the Policy requires that the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(2) the 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.
Identical and/or
Confusingly Similar
Complainant through
its extensive and continuous use, and Canadian registration of its SYNCRUDE
mark, has established that it has rights in the mark. Furthermore, the <syncrude.org> domain name is
identical to Complainant's mark because it merely adds ".org" to the
Complainant's mark. It is well established
that the addition of a top level indicator such as ".com" or
".org" does not defeat a claim of identical or confusing
similarity. See Rollerblade, Inc. v. McCrady,
D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name
such as “net” or “com” does not affect the domain name for the purpose of
determining whether it is identical or confusingly similar); see also The
Fed’n of Gay Games, Inc. v. Hodgson & Scanlon, D2000-0432 (WIPO June 28, 2000) (finding that
the domain name <gaygames.com> is identical to Complainant's registered
trademark GAY GAMES).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Rights or
Legitimate Interests
The Panel has discretion to find that Respondent has no rights or legitimate interests in the disputed domain name where Respondent fails to submit a response. See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names).
Furthermore, when Respondent fails to submit a response the Panel is permitted to make all inferences in favor of Complainant. See 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”).
There is no evidence, and Respondent does not refute, that Respondent has rights or legitimate interests in respect to the disputed domain name. See Body Shop Int’l PLC v. CPIC NET & Hussain, D2000-1214 (WIPO Nov. 26, 2000) (finding “that on the evidence provided by the Complainant and in the absence of any submissions from the Respondents, that the Complainant has established that (i) the Respondents are not using and have not used, or are not demonstrating and have not demonstrated, an intent to use the said domain name in connection with a bona fide offering of goods or services; (ii) the Respondents are not and have not been commonly known by the said domain name; and (iii) the Respondents are not making legitimate noncommercial or fair use of the said domain name, without intending to mislead and divert consumers or to tarnish Complainant’s <THE BODY SHOP> trademark and service mark”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Registration and
Use in Bad Faith
Respondent's registration and passive holding of the <syncrude.org> domain name supports a finding of bad faith pursuant to Policy ¶ 4(a)(iii). See Alitalia –Linee Aeree Italiane S.p.A v. Colour Digital, D2000-1260 (WIPO Nov. 23, 2000) (finding bad faith where the Respondent made no use of the domain name in question and there are no other indications that the Respondent could have registered and used the domain name in question for any non-infringing purpose); see also DCI S.A. v. Link Commercial Corp., D2000-1232 (WIPO Dec. 7, 2000) (concluding that the Respondent’s passive holding of the domain name satisfies the requirement of paragraph 4(a)(iii) of the Policy).
Furthermore, Respondent has offered the domain name for sale to the Complainant, which is evidence of bad faith pursuant to Policy ¶ 4(b)(i). Based on the form of Respondent's sale offer which called for a "well-matched price" in regards to the "high value of the domain" it can be inferred that the Respondent asked for more money than just his out-of-pocket expenses which is also evidence of bad faith. See Little Six, Inc v. Domain For Sale, FA 96967 (Nat. Arb. Forum Apr. 30, 2001) (finding Respondent's offer to sell the domain name at issue to Complainant was evidence of bad faith); see also Dynojet Research, Inc. v. Norman, AF-0316 (eResolution Sept. 26, 2000) (finding that the Respondent demonstrated bad faith when he requested monetary compensation beyond out of pocket costs in exchange for the registered domain name).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
DECISION
Having established all three elements required under the ICANN Policy, the Panel concludes that the requested relief shall be hereby granted.
Accordingly, it is Ordered that the domain name <syncrude.org> be transferred from Respondent to Complainant.
James P. Buchele, Panelist
Dated: October 10, 2001
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