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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
VoiceStream Wireless Corporation v. Hanjin Ko
Case No: D2001-1411
1. The Parties
The Complainant is VoiceStream Wireless Corporation of 12920 SE 38th
Street, Bellevue, Washington 98006, United States of America.
The Respondent is Hanjin Ko of 96-6 Padong Suseonggu, Tageu 706-07, Republic
2. The Domain Name and Registrar
The domain name at issue is <voicestream.org>.
The Registrar is Register.com, Inc.
3. Procedural History
The WIPO Arbitration and Mediation Center [the Center] received the Complaint
on November 29, 2001 [electronic version] and on December 3, 2001[hard copy].
The Center verified that the Complaint satisfies the formal requirements of
the ICANN Uniform Domain Name Dispute Resolution Policy [the Policy], the Rules
for Uniform Domain Name Dispute Resolution Policy [the Rules], and the Supplemental
Rules for Uniform Domain Name Dispute Resolution Policy [the Supplemental Rules].
The Complainant made the required payment to the Center.
The formal date of the commencement of this administrative proceeding is December 17, 2001.
On December 4 and December 11, 2001, the Center transmitted via email to Register.com,
Inc requests for registrar verification in connection with this case and on
December 14, 2001, Register.com, Inc transmitted by email to the Center Register.com's
verification response confirming that the registrant is Hanjin Ko who is also
the contact for both administrative and billing purposes.
Having verified that the Complaint satisfied the formal requirements of the
Policy and the Rules, the Center transmitted on December 17, 2001 to <email@example.com>;
and to <firstname.lastname@example.org> this Notification of Complaint and Commencement
of Administrative Proceeding. The Center advised that the Response was due by
January 6, 2002. On the same day the Center transmitted by fax and by mail copies
of the foregoing documents to Hanjin Ko, 63-51 Beomeo 4-Dong, Suseonggu, Taegu
706-819, Republic of Korea.
No Response was received from the Respondent by the due date of January 6,
2002. On January 9, 2002, Notice of Respondent Default was sent to the Complainant
and to the Respondent using the same contact details and methods as were used
for the Notification of Complaint and Commencement of Administrative Proceeding.
However, on December 3, 2001, the Respondent emailed the Center acknowledging
receipt of the Complaint and requesting that the documents be sent to him in
the Korean language and that the language of the administrative proceeding should
be Korean. Then on December 17, 2001, the Respondent emailed the Center repeating
the request that the proceeding should be in the Korean language, since he did
not have the financial means to pay for translations into English. That email
also set out in English a Response. A formal Response properly formatted was
subsequently received by the Center on January 12, 2002 [electronic version]
and on January 17, 2002 [hard copy]. That formal Response was in substance verbatim
to the earlier Response contained in the email of December 17, 2001.
The Complainant responded to the Center by email dated January 23, 2002, clarifying
an aspect arising from the Response. Further reference will be made to this
in paragraph 5.4.2 below.
The language prescribed governs communication in this administrative proceeding
[Rules, paragraph 2(c)]. The language of the proceedings is the language of
the Registration Agreement [ Rules, paragraph 11]. The language of Registration
Agreement with Register.com, Inc is English and it is, therefore, appropriate
that English should be the language of this administrative proceeding.
As to the lateness of the Response, it is the duty of the Panel to ensure that
the Parties are treated with equality and that each Party is given fair opportunity
to present its case [Rules, paragraph 10(b)] and, further, that the administrative
proceeding takes place with due expedition [Rules, paragraph 10(c)]. Since the
substance of the Response was received [January 12, 2002] only some 6
days after the due date [January 6, 2002] the Panel considers it appropriate
that the late filed formal Response be admitted.
Having received Declarations of Impartiality and Independence and Statements
of Acceptance from the three Panelists, the Center transmitted to the parties
a Notification of Appointment of Administrative Panel and Projected Decision
Date, in which Professor Sang-Hyun Song, Dr. Dan Hunter and Mr. David Perkins
were formally appointed as Panelists. The Projected Decision Date was March
27, 2002. The Panelists find that the Administrative Panel was properly constituted
and appointed in accordance with the Rules and the Supplemental Rules.
Having verified the communication records in the case file, the Administrative
Panel finds that the Center has discharged its responsibility under paragraph
2(a) of the Rules "to employ reasonably available means calculated to achieve
actual notice to Respondents". Therefore, the Administrative Panel shall
issue its Decision based upon the Complaint, the Response, the Policy, the Rules
and the Supplemental Rules.
4. Factual Background
4.1 The Business of the Complainant
4.1.1 The Complainant is a Delaware Corporation with its principal place of
business in Bellevue, Washington, United States of America. Founded in 1996,
the Complainant is one of America's largest and best-known wireless communication
providers. It is currently America's fifth largest wireless phone company, with
approximately 15,000 employees serving 5.2 million subscribers.
4.1.2 This business was originally operated by the Complainant's former parent
company, Western Wireless Corporation. In 1999 the Complainant was spun-off
by Western Wireless Corporation as a separate entity.
4.2 The Complainant's VOICESTREAM Trademark
4.2.1 From its inception in 1996 the Complainant used, as did its former parent
company, Western Wireless Corporation, the VOICESTREAM trademark to identify
its goods and services. The VOICESTREAM mark is the subject of 5 registrations
in the United States, 17 additional pending applications in the United States,
2 registrations in Mexico and a pending application in Europe. The US registrations
comprise the following
and Registration Dates
Filed October 10,
Registered March 11, 1997
Filed December 15,
Registered May 6, 1997
Filed March 14, 2001
Registered November 6, 2001
Filed July 6, 2000
Registered October 9, 2001
Filed March 14, 2001
Registered November 13, 2001
4.2.2 The Complainant has spent substantial time, effort and money advertising
and promoting the VOICESTREAM trademark in the United States and elsewhere.
In particular, the Complaint sets out the following:
- The Complainant owns over 430 Personal Communication Services licenses in
the United States covering a population of 272 million people.
- In the financial year 2000, the Complainant's revenues exceeded US$1.9 billion.
- Since 1998 the internationally known actress, Jamie Lee Curtis, has advertised
the Complainant's services in print, television and radio advertisements. In
1999 the advertising campaign received the Best Overall Excellence in Marketing
award from the Cellular Telecommunications and Internet Association [CTIA}.
- The Complainant uses and operates the Global System for Mobile [GSM] communications
technology platform which has been adopted as the standard by the United States
and 158 other countries and which accounts for some 70% of the total digital
wireless market. The Complainant is the only US wireless telecommunications
provider with a national GSM wireless technology network, which gives customers
the ability to use their VOICESTREAM number when travelling internationally
and supports roaming capabilities from other GSM customers travelling to the
- The Complainant has international roaming agreements with more than 164 of
the major operators worldwide providing service in over 71 countries including:
Australia, China, Chile, France, Germany, Greece, Hong Kong, India, Italy, the
Netherlands, Russia, Saudi Arabia, Spain, Switzerland and the United Kingdom.
4.2.3 The Complaint states that the Complainant's achievements have generated
tremendous attention in the media and as a result of its use and promotion the
VOICESTREAM name and mark have become a famous and highly distinctive trademark.
4.3 The Complainant's <voicestream.com> Domain Name
The Complainant operates a website at www.voicestream.com which generates some
351,800 hits per week. Just over 50% of those hits are by customers accessing
wireless messaging services through the Complainant's related <myvoicestream.com>
domain name. During 2001, the Complainant generated an average of 2,261 hand
set sales per month through its www.voicestream.com website.
4.4 The Respondent
Nothing is known of the Respondent, whose Response gives no information about
his activities. The use made of the domain name in issue is outlined in the
Complaint [see, paragraph 5.1.1 below]. The Response refers to a website being
constructed in the near future from which the Respondent hopes to generate income.
5. The Parties' Contentions
The Complainant's Case
5.1 Identical or Confusingly Similar
The Complainant's case is that the domain name in issue is in substance identical
to its VOICESTREAM trademark. It is also confusingly similar to the VOICESTREAM
5.1.1 The Respondent registered the domain name in issue on September 29, 2000.
It does not appear to have linked to a website until about October 2001, when
the Complainant learned that it resolved to a website called www.investorsuniverse.com.
A print out from that website shows that it offers, inter alia, what it calls
its Ambassador Program. Affiliates are invited to link www.investorsuniverse.com
to their own websites and when visitors through the Affiliate's website sign
up with InvestorsUniverse the Affiliate receives a US$1.00 fee. Each Affiliate
has its own ID so that such visitors can be identified as being introduced through
the Affiliate in question. In this way, the Complainant says the Respondent
benefits by trading-off the goodwill of the VOICESTREAM mark.
5.1.2 Further, the domain name in issue will create the impression that the
products and services accessible through www.investorsuniverse.com are affiliated
with the Complainant. So, consumers seeking the Complainant's Voicestream website,
who mistakenly use .org instead of .com, will be misdirected to
the Respondent's website and on to the www.investorsuniverse.com site. The net
result will be customer confusion and dilution of the Complainant's valuable
and distinctive VOICESTREAM trademark.
5.1.3 In addressing confusing similarity relevant considerations are
the similarity of
- the marks;
- the products and services;
- the users; and
- the channels of distribution.
The Complainant basis this proposition on See Yahoo! Inc v. Eitan Zviely,
et al. [WIPO Case No. D2000-0273].
That case involved 37 domain names which incorporated the YAHOO! trademark or
a close variant of it. The Panel found that the Respondent was deliberately
attempting to direct misled Yahoo! users to his website:
"Confusing similarity is what Zviely has been counting on"
Here, consumers seeking the Complainant's www.voicestream.com website but who
mistype or misspell the TLD and use .org instead of .com will
be misdirected to the Respondent's website with the consequences set out in
the preceding paragraph.
5.1.4 The Complainant cites cases where confusing similarity was found where
the Respondent, without justification, added .org to the Complainant's
MSNBC Cable, LLC v. Tysys.com [WIPO
Case No. D2000-1204]. The Complainant was MSNBC, a widely known worldwide
news organisation providing up-to-the-minute news by broadcast, cable and the
Internet. The <msnbc.org> domain name in issue resolved to the Respondent's
web hosting and development company website, www.tysys.com. That website featured
commercial advertisements relating to Tysys' access to hot domains for
sale or lease. The Panel found that the domain name and the MSNBC mark were,
for all practical purposes, identical. It also found that Internet users intending
to access the Complainant's website but who reach another website through the
domain name in issue, would think mistakenly that an affiliation of some sort
existed between the Complainant and the Respondent. The Panel, finding confusing
"Were this Panel to permit a party, unrelated to a trademark owner (or its
licensee), to incorporate its trademark as a formative element for a URL but
with a different gTLD from that which the trademark owner utilises in a domain
name for its own site, the Panel would be implicitly permitting increased source
confusion and trademark dilution to occur."
United States Trust Company of New York v. Big Picture Media [WIPO
Case No. D2000-1652]. Here, the domain name in issue was <ustrust.org>.
The Complainant had registered US trademarks for banking and related services
for UNITED STATES TRUST COMPANY: UNITED STATES TRUST: and U.S. TRUST. It had
used the UNITED STATES TRUST COMPANY mark since 1853. The Panel found confusing
"The Panel has compared the disputed domain name with the Complainant's U.S.
TRUST marks and finds that the second level domain thereof is substantially
identical to the Complainant's marks. The Panel finds that there is such similarity
in sound, appearance, and connotation between the U.S. TRUST marks and the said
disputed domain name as to render said disputed domain name confusingly similar
to Complainant's U.S. TRUST marks."
EAuto, LLC v. Triple S Auto Parts, etc [WIPO
Case No. D2000-0047]. There, the domain name in issue was <eautolamps.com>.
The Complainant owned a US registered trademark for EAUTO and was in the business
of offering a full range of automotive information to companies and individuals
through its website at www.eauto.com. The Respondent had been in the automotive
lamp business for over 10 years and in 1999 registered the domain name in issue
in order to sell a full range of automobile lamps through its website under
the <eautolamps.com> domain name.
As to confusing similarity, the Panel found EAUTO was a distinctive mark, "…
albeit one at the weaker end of the spectrum." The Panel went on to state:
"When a domain name incorporates, in its entirety, a distinctive mark, that
creates sufficient similarity between the mark and the domain name to render
it confusingly similar."
5.1.5 Based on these authorities and the facts in this case, the Complainant
contends that the domain name in issue is both identical and confusingly similar
to its VOICESTREAM mark.
5.2 Rights or Legitimate Interests
The Complainant's case is as follows.
5.2.1 The VOICESTREAM mark was first used in commerce in February 1996, and
both that use and certain of the registered VOICESTREAM trademarks predate registration
on September 29, 2000, of the domain name in issue. No use was made of that
domain name prior to about October 2001, when was linked to the www.investorsuniverse.com
website as explained in paragraph 5.1.1 above. It follows that both before the
date when the domain name was registered [September 2000] and also before the
date that it was first used in relation to the www.investorsuniverse.com website
[c. October 2001], the Respondent had constructive knowledge of the Complainant's
VOICESTREAM mark and business. The extent of the Complainant's business under
and by reference to the VOICESTREAM name and mark in the year 2000 was significant
[see, paragraphs 4.2.2 and 4.3 above] and this further provided actual or at
least further constructive notice to the Respondent by September 2000 when registering
the domain name in issue.
The Complainant cites The Step2 Company v. Softastic.com Corp [WIPO
Case No. D2000-0393] as authority for the proposition that registration
of a US trademark constitutes constructive notice to a Respondent of the registrant's
claim to own such trademark. In that case, the domain name in issue was <step2.com>.
The Complainant held registered trademarks for STEP2 in Canada, Taiwan, Thailand
and the United States, the earliest dating from 1992, for a variety of goods.
The domain name in issue was parked on a domain name auction site. No Response
was filed. In relation to the issue of registration in bad faith, the Panel
referred to 15 USC section 1972 which provides:
"Registration of a mark on the principal register provided by this chapter
or under the Act of March 3, 1881, or the Act of February 20, 1905, shall be
constructive notice of the registrant's claim of ownership thereof."
The Complainant then cites Sunglass Hut Corporation v. AAANet, Inc.
[NAF Case No. FA0003000094370] for the proposition that evidence of widespread
use of a Complainant's trademark carries with it an inference that the Respondent
had actual or at least constructive notice of prior use of the mark and the
Complainant's rights in the mark before the domain name in issue was registered.
In that case, the domain name in issue was <sunglasshot.com> registered
in 1998. The Complainant's SUNGLASS HUT mark was first used in commerce as early
as 1971, it was registered as a US trademark in 1988 and the SUNGLASS HUT name
was known internationally, the Complainant trading under that name in 50 countries
worldwide. The Complainant had its own www.sunglasshut.com website from which
it had sold sunglasses, watches and accessories since 1995. The domain name
in issue resolved to the Respondent's AAAnet.Inc homepage, from which the Respondent
also sold sunglasses, watches and accessories.
The Panel, finding for the Complainant, stated:
"The evidence of widespread use of SUNGLASS HUT worldwide allows the inference
that respondent had actual or at least constructive notice as a competitor of
the prior use of the mark and name."
5.2.2 The Complaint avers that there has been no bona fide offering of goods
or services by the Respondent under the domain name in issue, merely the linking
since about October 2001, to an online financial information site. Further,
the Complainant's case is that [for the reasons set out in paragraph 5.2.1 above],
the Respondent had actual or constructive notice of the Complainant's rights
to and business under the VOICESTREAM mark both at the time of registering the
domain name in issue [September 2000] and subsequently using it [October 2001].
So, the Complainant says, neither the registration nor the subsequent use can
be bona fide for the purpose of paragraph 4(c)(i) of the Policy.
5.2.3 The Respondent has not been commonly known by the domain name <voicestream.org>.
5.2.4 The use latterly made by the Respondent of the domain name in issue [see,
paragraph 5.1.1 above] is for commercial gain under the Affiliate Program of
InvestorsUniverse.com. As demonstrated above, that use is not fair use without
intent to misleadingly divert the Complainant's customers or to tarnish the
5.2.5 It follows, the Complainant says, that the Respondent cannot satisfy
any of the circumstances set out in paragraph 4(c) of the Policy which demonstrate
rights or interests to the domain name in issue. Any suggestion of rights or
legitimate interests becomes still less plausible when viewed against the Respondent's
bad faith conduct addressed in the following paragraphs.
5.3 Registered and Used in Bad Faith
The Complainant's case is as follows:
5.3.1 Because the Respondent had actual or constructive knowledge before registering
the domain name in issue in September 2000 of the Complainant's prior widespread
use of and reputation in the VOICESTREAM trademark, including registration of
that mark in the United States, registration of the domain name cannot have
been in good faith.
5.3.2 There is evidence of a pattern of conduct by the Respondent registering
another third party trademark in bad faith. Here, the Complainant cites Repsol
YPF, S.A. v. COMn.com [WIPO Case No. D2001-0741].
The Respondent in this case, Hanjin Ko, operates under the COMn.com name: this
is apparent from the Registrar Verification [paragraph 3 above]. Indeed, the
Response in the Repsol case stated that Mr. Hanjin Ko was the owner of
Repsol was the Spanish national oil company dating from 1986. YPF was a leading
Argentinean oil company. Merger of the 2 entities began in January 1999, and
the merged company now ranks eighth in the world in terms of its oil reserves
and hydrocarbon production. The REPSOL trademark was first registered in Spain
in 1956. The mark YPF was registered in Argentina in 1984. Since the merger
the merged company had applied for registration of the mark REPSOL YPF in many
countries worldwide, including in October 1999, in Korea which matured into
a registration in November 2000. The domain name in issue was registered in
The Respondent asserted that rep was an abbreviation for representative
and that solypf was Korean for pine needle. He claimed to have
made demonstrable preparations to use the domain name <repsolypf.com>
for a website describing the benefits of the use of pine needle extract in drinking
In finding for the Complainant, the Panel stated:
"The Respondent's claim seems just too far-fetched, particularly in the context
of the merger of two very large players in the global energy world and the domain
name just happening to be the same as that of the merged entity. The merger
was well publicised in the international financial press. Respondent has not
satisfied the onus to prove that he comes within one of the limbs of the paragraph
4c of the Policy. There is no documentary evidence offered to back up the litany
of similar assertions made by the Respondent and his associates.
The Panel considers also that there is an available inference that the Respondent
knew of the Complainant's rights at the time of registration of the domain.
The name of the merged entity of two large international oil companies cannot
have escaped the attention of the financial press and markets worldwide, even
although the two companies operated in Spain and Latin America. The combination
of their two unusual names is just too coincidental. The Respondent's explanation
strains credulity. Moreover, at the time of the domain name registration Complainant
had a registered mark in Korea and some commercial presence in that country.
These facts, plus the lack of any real development of the website allow for
an inference of bad faith use."
5.3.3 The gTLD .org suggests a non-profit organisation. Here, however,
the domain name in issue is being used for commercial gain through the Affiliate
Program. On similar facts the Complainant points to cases where it was found
that the Respondent was seeking to gain advertising or other revenue from mis-typed
domain names and this was bad faith conduct justifying transfer of the domain
name in issue to the Complainant. The Complainant cites two cases as illustrative.
Williams-Sonoma Inc v. Polanski [WIPO Case
No. D2001-0236]. There, the domain name in issue was <william-sonoma.com>.
The Complainant retailed cookware and associated products through 200 of its
US WILLIAMS-SONOMA retail outlets and through its mail order catalogue mailed
to some 2.5 million US homes each month. It had US registered trademarks for
WILLIAMS-SONOMA in Classes 16: 24: 25: 30: 31 and 35. It also had the mark registered
in Australia: Hong Kong: Japan: Korea: Singapore: the European Community: and
New Zealand. No Response was filed.
As to use in bad faith, pointing to the various trademark registrations, the
inherent distinctiveness of that mark and its long and extensive use, the Panel
held - quoting from the case Telstra Corporation Limited v. Nuclear Marshmallows
[WIPO Case No. D2000-0003] - it was
"… not possible to conceive of a plausible circumstance in which the Respondent
could legitimately use the domain name."
As to registration in bad faith, the Panel stated:
"It is similarly inconceivable that Respondent chose this domain name, which
is virtually identical to Complainant's inherently distinctive and highly publicised
WILLIAMS-SONOMA mark, without prior knowledge of such mark. This evidences that
Respondent registered WILLIAM-SONOMA.COM in bad faith."
Inter-IKEA v. Polanski [WIPO Case
No. D2000-1614]. This was an earlier case involving the same Respondent.
Here, he had registered <ikeausa.com>. The Complainant has started trading
under the IKEA name and mark in 1950. It had over 1200 trademark registrations
for the IKEA mark in more than 70 countries. The Respondent's domain name originally
resolved to a casino online virtual gambling site. The Panel had no hesitation
in finding that the Respondent could not have been unaware of the Complainant's
activities under the IKEA name and mark. As to use, the Panel held
"It is difficult to imagine any plausible future active use of the domain name
by the Respondent that would not be illegitimate, such as being infringement
of Complainant's well-known mark or an infringement of unfair competition and
consumer protection legislation."
5.3.4 The Complainant asserts that the circumstances of paragraph 4(b)(iv)
are satisfied in this case, namely that by using the domain name in issue the
Respondent has intentionally attempted to attract, for commercial gain through
the Affiliate program, Internet users to the www.investorsuniverse.com website,
by creating a likelihood of confusion with the VOICESTREAM mark as to the source,
sponsorship, affiliation or endorsement of that website.
The Respondent's Case
5.4 Identical or Confusingly Similar
5.4.1 Here, the Respondent's case appears to be a challenge to the rights claimed
by the Complainant in the VOICESTREAM trademark. It is, the Respondent says,
no more than the compound of two words in everyday worldwide use, namely voice
and stream. The Respondent points to other domain names incorporating
the VOICESTREAM mark, namely voicestream with the suffixes .biz;
.co.uk; .tv; .de; .cc; .at; .be; .dk;
.it; and .nl and proposes that if the Complainant can use its
VOICESTREAM trademark to complain about the domain name in issue, the Complainant
should also be attempting to stop use of those other voicestream prefixed
5.4.2 Further, the Respondent says that his enquiries show that the VOICESTREAM
mark is also registered by Western Wireless Corporation. But, as clarified by
the Complainant in its communication dated January 23, 2002, the Complainant
was spun-off from Western Wireless Corporation in 1999 [see, paragraph 4.1.2
above]. Indeed, US registered trademark numbers 2.045,084 and 2,060,060 were
registered in the name of Western Wireless Corporation.
5.4.3 The Respondent equates the compound of voice and stream
with other generic words, such as flower and dream which the Respondent
says have also been registered as trademarks by third parties. Such registrations
should not, however, in his view preclude use by anybody of those generic names
as domain names.
5.5 Rights or Legitimate Interests
The Respondent states that prior to being put on notice of this dispute he
had no knowledge of the complainant company. Consequently, he has used the domain
name in issue in connection with a bona fide offering of goods or services through
the InvestorsUniverse.com Affiliates program.
5.6 Registered and Used in Bad Faith
Because he had no prior knowledge of the complainant company before notice
of this dispute, the Respondent says he registered the domain name in good faith
in September 2000. His intention was to
"… construct my small website in near future. I expect I can get a small money
from this my future site."
Interpreting this as best it can, the Panel assumes the Respondent is saying
that because he registered the domain name in issue in good faith and began
using it in good faith in late 2000 in the Affiliate Program of InvestorsUniverse.com
before notice of this dispute, the Complaint fails to satisfy the two requirements
of paragraph 4(a)(iii) of the Policy.
6. Discussion and Findings
6.1 The Policy paragraph 4(a) provides that the Complainant must prove each
of the following:
(i) that the Respondent's domain name is identical or confusingly similar to
a trademark or service mark in which the Complainant has rights; and
(ii) the 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.
6.2 Paragraph 4(c) of the Policy identifies circumstances which, in particular,
but without limitation, if found by the Panel to be proved based on its evaluation
of all the evidence presented, shall demonstrate the Respondent's rights or
legitimate interests for the purpose of paragraph 4(a)(ii) of the Policy.
6.3 Paragraph 4(b) of the Policy sets out circumstances which, if found by
the Panel to be present, shall be evidence of the registration and use of a
domain name in bad faith.
6.4 Identical or Confusingly Similar
The domain name in issue, save for the .org TLD, is identical to the
Complainant's VOICESTREAM registered trademark. The Complainant, therefore,
satisfies the first limb of paragraph 4(a) of the Policy.
Were it necessary to address confusing similarity - which it is not - the Panel
is persuaded by the case made out by the Complainant.
As to the voicestream domain names with the suffixes .biz; .co.uk;
.tv; .de; .cc; .at; .be; .dk; .it;
and .ml referred to in the Response the Panel has established through
its own searches that <voicestream.biz> and .cc are registered
in the name of the Complainant. Of the others, at least 5 are registered by
persons or companies who do not appear to have any affiliation with the Complainant.
The Policy, however, requires only that the Complainant must establish rights
in the VOICESTREAM trademark and this it has been done to the Panel's satisfaction.
6.5 Rights or Legitimate Interests
6.5.1 The Panel is not convinced by the Respondent's assertion that prior to
notice of this dispute he had no knowledge of the Complainant’s Company. The
Respondent professes to be a "poor and starveling main" so that he cannot
afford to defend himself properly in this administrative proceeding, with the
inference that it is entirely plausible that he would have no prior knowledge
of the Complainant or its VOICESTREAM business. The Complainant has, however,
referred to the Repsol case, where the Respondent was represented by
US attorneys. While the Respondent may have limited financial resources - and
the Panel can only speculate - it is clear that he is not a stranger to proceedings
under the Policy.
6.5.2 Nothing in the Response establishes any of the circumstances in paragraph
4(c) of the Policy as demonstrating rights to or legitimate interests in the
domain name in issue. Specifically, the Panel is satisfied that the Respondent
had constructive notice of the Complainant and its VOICESTREAM business even
if, which the Panel doubts, the Respondent was unaware of the existence of its
registered US trademarks for VOICESTREAM. Thus, in the Panel's view, any use
by the Respondent of the domain name in issue could not have been bona fide
or fair. The Complaint, therefore, satisfies the second limb of paragraph 4(a)
of the Policy.
6.6 Registered and Used in Bad Faith
6.6.1 It follows from the Panel's finding in relation to rights or legitimate
interests, that the Panel also finds that the domain name was registered in
September 2000, in bad faith. This is compounded by the Respondent's conduct
in the Repsol case.
6.6.2 As to use, where - as in this case - the Respondent has no rights or
legitimate interests in the domain name in issue, use in the circumstances set
out in paragraph 5.3.4 above evidences bad faith of the type prescribed in paragraph
4(b)(iv) of the Policy.
6.6.3 The Complaint, therefore, also meets the twin requirements of paragraph
4(a)(iii) of the Policy.
For all the foregoing reasons, the Panel decides that the Complainant has proved
each of the three elements of paragraph 4(a) of the Policy. Accordingly, the
Panel requires that registration of the domain name <voicestream.org>
be transferred to the Complainant.
Dated: March 25, 2002