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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Guardant, Inc. v. youngcho kim
Case No. D2001-0043
This is a mandatory administrative proceeding submitted for decision in accordance with the Uniform Domain Name Dispute Resolution Policy , adopted by the Internet Corporation for Assigned Names and Numbers (ICANN) on August 26, 1999 (the "Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy, approved by ICANN on October 24, 1999 (the "Rules") and the World Intellectual Property Organization ("WIPO") Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules.
2. The Parties
The Complainant in this administrative proceeding is Guardant, Inc., a corporation organized and existing under the laws of the State of Delaware, with its principal place of business located at 1240 One Atlantic Center, 1201 W. Peachtree Street, N.W., Atlanta, Georgia, USA.
The Respondents named in this Administrative Proceeding is youngcho kim, whose address is listed at 312 ohag-ri bugnae-myeon, kyeonggi-d 469-850, Korea.
3. The Domain Names and Registrar
The Domain Names are <skyteamcargo.com> and <cargoskyteam.com>.
The Registrar is BulkRegister.com, 7 East Redwood Street, Third Floor, Baltimore, MD 21202, USA.
4. Jurisdiction and Related Matters
By registering the subject domain names with the Registrar, the Respondent agreed to the resolution of disputes pursuant to the Policy and Rules.
The Administrative Panel consisting of one member was appointed on February 19, 2001 by WIPO.
5. Procedural History
Complainant filed its Complaint with the World Intellectual Property Organization Arbitration and Mediation Center (the "Center") on January 9, 2001 by email and on January 11, 2001 by hardcopy. The Center dispatched to the Registrar a Request for Registrar Verification on January 11, 2001. On January 15, 2001, having verified that the Complaint satisfied the formal requirements of the Uniform Policy and the Uniform Rules, the Center formally commenced this proceeding and notified the Respondent that its Response would be due by February 7, 2001. The Respondent did not file a response by the due date. The Administrative Panel was appointed on February 19, 2001.
An examination of this material confirms that all technical requirements for the prosecution of this proceeding were met.
Neither party requested an opportunity to make further submissions and the Administrative Panel is content to proceed on the basis of the existing record.
6. Factual Background
The Complainant is the owner of applications and registrations for the trademarks and service marks for the mark SKYTEAM, (the "SKYTEAM MARKS") which the Complainant holds for the benefit of SkyTeam, a global airline alliance that includes Delta Air Lines, Air France, AeroMexico, and Korean Air Lines (collectively, the "SKYTEAM Partners"). The Complainant has filed applications to register the SKYTEAM MARKS in more than 120 countries around the world. Most of the SKYTEAM MARKS cover "transportation, storage, and travel services." In some jurisdictions, such as India, Malta & Gozo, Mauritius, Pakistan, and the Turkish Republic of North Cyprus, where service mark registrations are unavailable at this time, the Complainant has secured or sought local analogous coverage.
The SKYTEAM MARKS represents to the worldwide consuming public the goods and services offered by the SKYTEAM Partners through its global airline alliance. The SKYTEAM Partners have made extensive use of the SKYTEAM MARKS by providing air transportation for passengers and cargo throughout North America, Latin America, Europe, Asia, and around the world.
Currently, the SKYTEAM Partner's network of strategically located hubs in Latin America, Europe, the United States and Asia offers travelers multiple departure time options on 6,402 daily flights to 451 destinations in 98 countries:
- AeroMexico’s Benito Juarez International Airport hub in Mexico City provides SKYTEAM passengers with access to Latin America’s leading airport, with more than 6,000 passengers passing through its gates per hour.
- Air France’s operations at Charles de Gaulle Airport offer access to Europe’s largest hub with more than 14,000 connections available in less than two hours each week – more than Frankfurt, Amsterdam, Heathrow, Brussels or Zurich.
- Delta's hub at Atlanta Hartsfield International Airport offers passengers more connections than any other airport in the world, with 1,316 daily flights to 126 destinations.
- Korean Air, one of Asia's largest carriers, services 78 destinations in 29 countries including Japan, China, Korea and Southeast Asia, and through its Seoul hub offers customers connections to major cities around the world.
Together, the SKYTEAM Partners provide more non-stop flights between the United States and European destinations than any other airline alliance, serving over 174,000,000 passengers every year.
Through their affiliated cargo companies Delta Air Logistics ("DAL"), AeroMexico Cargo, Air France Cargo, and Korean Air Cargo, (the "SKYTEAM CARGO Partners") SKYTEAM offers cargo services to cargo customers through a combined fleet of 1,070 aircraft. The SKYTEAM CARGO Partners provide 6,810 daily flights to 411 unduplicated destinations in 100 countries. The services provided by the SKYTEAM CARGO Partners represent the world’s largest cargo airline alliance.
Due to the extensive global advertisement, use and registration of the SKYTEAM MARKS around the world, the SKYTEAM MARKS have become famous under the laws of the United States and other relevant jurisdictions. Further, the marks have obtained the status of notorious marks and enjoy liberal protection under the Paris Convention. A Lexis-Nexus search of the Aviation News database for "SKYTEAM" revealed 288 reports.
The global SkyTeam alliance announced its launch through a broadly disseminated international press release issued by the SKYTEAM partners on June 22, 2000. On the same day, the SKYTEAM partners launched an extensive international advertising campaign to promote the SKYTEAM MARKS and related brands. This activity was world-wide and included extensive efforts in Korea, the Respondent’s apparent domicile.
On July 21, 2000, shortly after these widely disseminated public announcements, media reports, Respondent registered the domain names <skyteamcargo.com> and <cargoskyteam.com> (the "subject domain names"). Although not the subject of this Complaint, Respondent also registered the domain name <cargoskyteam.co.kr>.
There are no prior trademark applications or registrations in the name of the Respondent for any mark incorporating the elements "SKY", "TEAM" and/or "CARGO" anywhere in the world. The Respondent does not operate any business under any mark that incorporates the word SKYTEAM and does not offer cargo services of any kind to customers under any mark that incorporates the word SKYTEAM, or at all.
The Respondent has no trademark applications or registrations which incorporate the word SKYTEAM and posts no materials for access by the public at the internet sites to which the subject domain names resolve.
The Complainant has not authorized the Respondent to use the subject domain names and asked that they be transferred to it, to which request the Respondent did not reply.
7. Parties’ Contentions
The Complainant says that it has rights to the mark and name SKYTEAM and that the subject domain names are confusingly similar. It asserts that the Respondent has no legitimate interest in the subject domain names and points to his lack of any use of them and the fact that they have no relationship to his name or any activity carried on by him. As to bad faith, the Complainant relies on the existence of passive interference with its potential use of the subject domain names.
The Respondent has advanced no position in this case.
8. Discussion and Findings
Paragraph 4(a) of the Policy requires the Complainant to prove that:
i) the domain names are identical or confusingly similar to a service mark in which the Complainant has rights;
ii) the Respondent has no legitimate interest in respect of the domain names;
iii) the domain names have been registered and are being used in bad faith.
Paragraph 4(b) provides for the implication of evidence of bad faith in a number of circumstances:
i) circumstances that indicate that the Respondent has registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of the Complainant, for valuable consideration in excess of the Respondent’s documented out-of-pocket costs directly related to the domain name;
ii) registration of the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the Respondent has engaged in a pattern of such conduct;
iii) registration of the domain name primarily for the purpose of disrupting the business of a competitor;
iv) by using the domain name, intentionally attempting to attract, for commercial gain, Internet users to the Respondent’s web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of the web site or location or of a product or service on it or location.
These are illustrative and do not represent the only circumstances from which may arise evidence of bad faith.
The Complainant refers to a number of decisions of domestic courts. While often this is very helpful, they are not determinative in an ICANN domain dispute proceeding.
The resolution of this dispute takes place in the context of a consideration of the requirements of paragraph 4(a) of the Policy.
A. Identical or Confusingly Similar
The Complainant has registered marks using the word SKYTEAM. It has used the word extensively in its business world-wide. The subject domain names use the word and use it in the context of one of the Complainant’s principal activities. The subject domain names are confusingly similar to the rights and marks of the Complainant.
The Administrative Panel is satisfied that the Complaint has met the requirements of paragraph 4(a)(i).
B. Respondent’s Legitimate Interest
The Respondent has made no use of the subject domain names. They do not relate to his name or to any activity carried on by him. He has provided no explanation for his registration of the subject domain names.
The Administrative Panel is satisfied that the Complaint has met the requirements of paragraph 4(a)(ii).
C. Bad Faith
Standing alone, the fact that a Respondent has registered a domain name that is confusingly similar to a name or marks of a Complaint and has no legitimate interest in the domain name, does not establish bad faith in the registration and use of the domain name. Bad faith is a specific requirement that a Complainant must establish.
Whether there is bad faith is a question that must be considered in the context of the case as a whole. It sometimes can be inferred from an examination of the evidence overall. A Complainant which should not be deprived of a proper decision by a Respondent who fails to explain suspicious facts.
In this case, the timing of the registration, soon after the advertising initiative of the global SkyTeam, leads to an inference of bad faith. The Respondent has done nothing to rebut the inference.
The lack of any use and the failure to respond to the Complainant’s request for transference of the name, raises a legitimate question concerning the Respondent’s potential use of the subject domain names. A Complainant is not obliged to wait until it has suffered actual injury before seeking and obtaining relief in an ICANN proceeding. Again, the Respondent’s failure to shed any light on his intended use of the subject domain names militates against him.
The Administrative Panel is satisfied that the Complaint has met the requirements of paragraph 4(a)(iii).
Based on the evidence overall and its findings, the Administrative Panel finds that the Complainant has established its case. The Complainant asked that the subject domain names be transferred to it.
The Administrative Panel so orders.
Edward C. Chiasson, Q.C.
Dated: March 4, 2001