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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Koninklijke Philips Electronics N.V. v. In Seo Kim
Case No. D2001-1195
1. The Parties
The parties are Koninklijke Philips Electronics N.V. of Groenenwoudseweg 1, 5621 BA Eindhoven, The Netherlands ("Complainant") and In Seo Kim of 213-4501 North Road Burnaby, B.C. V3N 4R7 Canada ("Respondent").
2. The Domain Name and Registrar
The domain name in dispute is <philipssucks.com> ("the Domain Name"). The Registrar is Network Solutions, Inc. ("the Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center ("the Center") in electronic form on October 2, 2001, and in hard copy with attachments on October 9, 2001. The Registrar verified on October 8, 2001, that it is the Registrar of the disputed Domain Name, that the Respondent is the Registrant, that its English language Service Agreement version 5 applies to the registration and that it had received a copy of the Complaint. The Center’s formal requirements checklist was completed on October 9, 2001.
The Complaint was notified to the Respondent by email and fax on October 9, 2001, and by courier dispatched on the same date to the addresses and number indicated for the Registrant and the Administrative, Technical and Billing Contacts on the Registrar’s whois database, as well as to <email@example.com>. Delivery to the email address <firstname.lastname@example.org> appears to have failed; delivery to the other addresses appears to have been successful.
No Response having been received from the Respondent, the Center sent Notification of Respondent’s Default on October 30, 2001.
Having submitted a Statement of Acceptance and Declaration of Impartiality and Independence, Jonathan Turner was appointed as the Single Member Panel on November 5, 2001.
Having reviewed the file, the Panel concludes that the Complaint complied with the applicable formal requirements, was properly notified to the Respondent and has been submitted to a duly appointed Panel in accordance with the Uniform Domain Name Dispute Resolution Policy ("the Policy") applicable to the Domain Name.
4. Factual Background
The Complainant is a very well-known manufacturer and supplier of electrical and electronic goods. Its primary branding is its name "Philips" and a logo incorporating this name. It has registered "Philips" as a trademark in numerous countries.
The Respondent registered the Domain Name on January 8, 2000, together with 14 other domain names ending in <sucks.com>, in most cases preceded by other well-known brands of electronic goods or cosmetics.
The Complainant wrote to the Respondent at the address recorded on the Registrar’s whois database on January 15, 2001, asserting rights in the mark "Philips" and requesting discontinuance of the Respondent’s use of this mark in the Domain Name. The Respondent did not reply to this letter.
Six email messages dated between May 4 and 9, 2001, criticizing the Complainant and its products have been posted at a website at <www.philipssucks.com>, which is said to be "under development". No other use appears to have been made by the Respondent of the Domain Name.
5. Parties’ Contentions
The Complainant contends that the Domain Name is confusingly similar to its registered trademark "Philips", that the Respondent has no rights or legitimate interest in using it, and that the Respondent registered and is using the Domain Name in bad faith in order to sell it to the Respondent at a profit and to disrupt the Complainant’s business. The Complainant refers in particular to the Respondent’s registration of a series of domain names comprising a well-known brand followed by <sucks.com>.
The Respondent has not submitted a Response to these contentions.
6. Discussion and Findings
In accordance with paragraph 4 of the Policy, the Complainant must prove (i) that the Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (ii) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) that the Domain Name has been registered and is being used in bad faith.
As to the first requirement, numerous cases of domain names comprising well-known marks followed by <sucks.com> have been considered under the Policy. In most of these cases, Panels have concluded that the domain names were confusingly similar to the Complainant’s mark: see The Salvation Army v. Info-Bahn, Inc. WIPO Case No. D2001-0463 <salvationarmysucks.com>, ADT Services AG v. ADT Sucks.com WIPO Case No. D2001-0213 <adtsucks.com>, Société Accor contre M. Philippe Hartmann WIPO Case No. D2001-0007 <accorsucks.com>, TPI Holdings, Inc. v. AFX Communications a/k/a AFX WIPO Case No. D2000-1472 <autotradersucks.com>, Diageo plc v. John Zuccarini, Individually and t/a Cupcake Patrol WIPO Case No. D2000-0996 <guinness-really-sucks.com> etc, Standard Chartered PLC v. Purge I.T. WIPO Case No. D2000-0681 <standardcharteredsucks.com>, Wal-Mart Stores, Inc. v. Richard MacLeod d/b/a For Sale WIPO Case No. D2000-0662 <wal-martsucks.com>, Direct Line Group Ltd, Direct Line Insurance plc, Direct Line Financial Services Ltd , Direct Line Life Insurance Company Ltd, Direct Line Unit Trusts Ltd, Direct Line Group Services Ltd v. Purge I.T., Purge I.T. Ltd WIPO Case No. D2000-0583 <directlinesucks.com>, Dixons Group PLC v. Purge I.T. and Purge I.T. Ltd WIPO Case No. D2000-0584 <dixonssucks.com>, Freeserve PLC v. Purge I.T. and Purge I.T. Ltd. WIPO Case No. D2000-0585 <freeservesucks.com>, National Westminster Bank PLC v. Purge I.T. and Purge I.T. Ltd WIPO Case No. D2000-0636 <natwestsucks.com>, Wal-Mart Stores, Inc. v. Walsucks and Walmarket Puerto Rico WIPO Case No. D2000-0477 <walmartcanadasucks.com> etc, Vivendi Universal v. Mr. Jay David Sallen and GO247.COM,INC. WIPO Case No. D2001-1121 <vivendiuniversalsucks.com> (majority decision).
However, the opposite conclusion was reached in McLane Company, Inc. v. Fred Craig WIPO Case No. D2000-1455 <mclanenortheast.com> <mclanenortheastsucks.com>, Wal-Mart Stores, Inc. v. wallmartcanadasucks.com and Kenneth J. Harvey WIPO Case No. D2000-1104 <wallmartcanadasucks.com> and Lockheed Martin Corporation v. Dan Parisi WIPO Case No. D2000-1015 <lockheedsucks.com> <lockheedmartinsucks.com> (majority decision).
This Panel considers that the first requirement of the Policy involves a mark for name comparison; in other words it is necessary to consider potential, as well as actual use of the domain name: see Koninklijke Philips Electronics N.V. v. Cun Siang Wang WIPO Case No. D2000-1778 <philips-indonesia.com>. Actual deceptive use is relevant to the second and third requirements, but not necessary to meet the first requirement.
On this basis, the Panel considers that the Domain Name is confusingly similar to the trademark "Philips" in which the Complainant undoubtedly has rights. Not all Internet users are English speaking or familiar with the use of "sucks" to indicate a site used for denigration. Furthermore, it is not unknown for companies to establish complaint or comment sites or areas of sites to obtain feedback on their products; accordingly, some people might suppose that a website of this nature at the Domain Name was operated by the Complainant.
It does not follow from this approach that the registration of any domain name comprising a famous brand followed by "sucks.tld" can be successfully challenged under the Policy. If such a domain name is genuinely registered and used for the purposes of criticism of the brand, the second and third requirements which the Complainant has to establish will not be met. The Policy is directed against abusive registration of domain names; not free speech.
As to the second requirement, in this case the Respondent has not countered the Complainant’s contention that it has no legitimate interest in respect of the Domain Name. In particular, it does not appear to have operated the Domain Name at any rate until after the Complainant’s letter of complaint of January 15, 2001, and the rudimentary site which it has put up does not appear to constitute genuine non-commercial use. The Panel is satisfied that the Respondent does not have a legitimate interest in respect of the Domain Name.
As to the third requirement, the Panel considers that the Domain Name was registered and is being used in bad faith, in particular for the purpose of sale at a profit to the Complainant. This can be inferred from the lack of genuine use of the Domain Name and the registration by the Respondent of a considerable number of similar domain names.
The Panel concludes that the Domain Name should be transferred to the Complainant.
The Panel decides that the domain name <philipssucks.com> should be transferred to the Complainant.
Dated: November 12, 2001