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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Iwasaki Corporation and Iwasaki Hotels Corporation v. Mitaden Co., Ltd.

Case No. D2002-0357

 

1. The Parties

The Complainants are as follows:

- Iwasaki Corporation, 9-5, Yamashita-cho, Kagoshima-shi, Kagoshima 892-0816, Japan

- Iwasaki Hotels Corporation, 3755, Juni-cho, Ibusuki-shi, Kagoshima 891-0403,Japan.

The Respondent is as follows:

- Mitaden Co., Ltd., 24-15, Hinode-cho, Kagoshima-shi, Kagoshima 890-0086, Japan.

 

2. The Domain Names and Registrar

The disputed Domain names are as follows:

- <Ћ­Ћ™“‡Њр’К.com> (<bq- -3cph6ukqlt3e5jeqdi.com>)

- <‚ў‚н‚і‚«ѓzѓeѓ‹ѓY.com> (<bq- -gbci6vkn3pdoxoq.com>)

- <‚ў‚н‚і‚«ѓzѓeѓ‹ѓY.net> (<bq- -gbci6vkn3pdoxoq.net>).

The registrar is Network Solutions, Inc., 505 Huntmar Park Drive,Horndon VA 20170-5142, United States of America ("the Registrar").

 

3. Procedural History

This is an administrative proceeding pursuant to the Uniform Domain Name Dispute Resolution Policy ("the Policy") adopted by the Internet Corporation for Assigned Names and Numbers ("ICANN") on August 26, 1999, in accordance with the Rules for the Policy, approved by ICANN on October 24, 1999, ("the Rules") and the WIPO Supplemental Rules for the Policy ("the Supplemental Rules") of the WIPO Arbitration and Mediation Center ("the Center").

The Complaint was received by theCenter by email on April 15, 2002and in hard copy on April 17, 2002.  TheCenter acknowledged receipt of Complaint on April 18, 2002.  On the same day, the Center requestedthe Complainants for the ACE code to convert the non-English domain names inorder for the concerned Registrar to verify these domain names.  On April 19, 2002, theComplainants notified the Center of the ACE code of the domain names.  The Center sought registration details from theRegistrar, on April 19, 2002.  TheCenter received the confirmationfrom the Registrar that, amongothers, the Respondent is the currentregistrant on April 25, 2002.  After the communications between the Center and the Complainantswith regard to the transmission of a copy of Complaint with a cover sheet tothe Respondent and the Registrar, the Complainants sent them to the Respondentand the Registrar by-email in accordance with the Rules, Paragraph 3(b)(xii)and the Supplemental Rules, Paragraph 4(b).

On April 30, 2002, the Center satisfied itself that the Complainants had complied with all formalrequirements of the Rules, including payment of the prescribed fee, and notified the Respondent bypost/courier, facsimile and emailof the Complaint and of the commencement of this administrative proceeding.  Theformal date of the commencement of the proceeding was accordingly April 30, 2002.  The last day specified in the noticefor a response was May 20, 2002. 

The communications by any means failed to reach the Respondent.  On May 21, 2002,no response having been filed, theCenter notified the Respondent of its default.

On June 3, 2002, the Center notified the parties of the appointment of Masato Dogauchi as the AdministrativePanel, after receiving the Statement ofAcceptance and Declaration of Impartiality and Independence fromMasato Dogauchi.  TheCenter notified that the Panel was required, absent exceptionalcircumstances, to forward its decision to the Center by June 17, 2002.

The language of the proceeding is English.

The Panel is satisfied that the Complaint was filed in accordance with the requirements of the Rules and Supplemental Rules; payment was properly made; the Panel agrees with the Center of assessment concerning the Complaints of compliance with the formal requirements of the Rules; the Complaint was properly notified to the Respondent in accordance with Paragraph 2(a) of the Rules; no Response was filed within the time specified by the Rules and the single-member Administrative Panel was properly constituted.

 

4. Factual Background

Since the Respondent failed to furnish its response, the Panel proceeds toconsider the following facts submitted by the Complainants:

Both of the Complainants are companies incorporated under Japaneselaw with their principal place of business in Kagoshima, Japan.  One of them, Iwasaki Corporation, isdoing its business in passenger traffic and transportation industry, and itsranking in that industry was the first place in Kagoshima prefecture in 2001.  The other one, Iwasaki HotelsCorporation, is doing its business in hotel industry, and its ranking in thatindustry was also the first place in Kagoshima prefecture in 2001.  They are members of the same businessgroup, Iwasaki Group.  This is thereason why they jointly filed the Complaint against the Respondent. 

On April 1, 2001, several companies within Iwasaki Group merged into one.  Kagoshima Kotsu Kabushikikaisha, one of the merging companies, was selected as a surviving corporation at that time and its name was changed to Iwasaki Corporation. Iwasaki Corporation is still using the name of "Kagoshima Kotsu (Ћ­Ћ™“‡Њр’К)" as its trademark or service mark in passenger traffic and transportation business.  "Kagoshima" is the name of the principal place of business of Iwasaki Corporation and "Kotsu" means "traffic" in Japanese.  The name of "Kagoshima Kotsu (Ћ­Ћ™“‡Њр’К)"can be found in southern part of Kyushu Island where Kagoshima prefecture is situated. 

On the other hand, Iwasaki Hotels Corporation uses "‚ў‚н‚і‚«ѓzѓeѓ‹ѓY (Iwasaki Hotels)", as its corporate name which is registered in Japan.  This name is used in hotel business inKyushu Island and is known by people in even other countries through IwasakiHotels Corporation ofs campaign in golf tournament and so on.

According to the information registered at theWHOIS database of the Registrar, the disputed domain names <Ћ­Ћ™“‡Њр’К.com>, <‚ў‚н‚і‚«ѓzѓeѓ‹ѓY.com> and <‚ў‚н‚і‚«ѓzѓeѓ‹ѓY.net> were registered by theRespondent.  There is no evidencethat shows the activity of the Respondent using these domain names.

 

5. Parties of Contentions

A. Complainants

The Complainants assert in essence as follows:

(1) The disputed domain names are identical or confusingly similar to the trademark andthe company name, respectively, in which the Complainants have rights under Japanese law;

(2) The Respondent should be considered as having no rights or legitimate interests inrespect of the dispute domain names;

(3) The disputed domain names were registered in bad faith.

With regard to the item (1) above, the Complainants introduce copies oftheir corporate registration which show their present corporate names.  The corporate registration of KagoshimaKotsu Kabushikikaisha also show its previous corporate name before the mergeron April 1, 2001, that is "Kagoshima Kotsu (Ћ­Ћ™“‡Њр’К) Kabushikikaisha".  The Complainants introduce copies of their corporate profileand information made by third parties as well as their own brochures usingtheir corporate names and the trademark of "Kagoshima Kotsu (Ћ­Ћ™“‡Њр’К)".

With regard to the items (2) and (3) above, the Complainants assert thefollowing facts showing the Respondent ofs bad faith in its registration withoutany legitimate interests:

- The Respondent ofs business areas are not related to "Kotsu (Њр’К)" nor to "Hotels (ѓzѓeѓ‹ѓY)", since the Respondent is a corporation whosebusiness are electric work, works of fire facility, sale of hot water equipmentand sale of air-conditioning equipment;

- The Respondent has never used or made any demonstrable preparation to use thedisputed domain names;

- The Respondent has acquired, at least, <“м“ъ–{‹вЌs.com>and <“мЌ‘Њр’К.com> too.  "“м“ъ–{‹вЌs (Minami-Nippon Bank)" is abank with its principal place of business in Kagoshima, and "“мЌ‘Њр’К (Nangoku Kotsu)" is a passenger transportation business company with itsprincipal place of business in Kagoshima, too.  There is no indication of the Respondent ofs legitimateinterests in respect of these domain names.

The Complainants accordingly request a decision that the disputed domainnames be transferred to the Complainants.

B. Respondent

There was no response filed.

 

6. Discussion and Findings

According to Paragraph15(a) of the Rules, a Panel shall decide a Complaint on the basis of the statements and documents submitted and inaccordance with the Policy, the Rules and any rules and principles of law thatit deems applicable.  Since the Respondent has not made anysubmission, the following decision is rendered on a basis of the submissionfrom the Complainants.

In accordance with Paragraph 4(a) of the Policy, for the Complaint to be granted, the Complainants must prove each of thefollowing:

- The disputed domain name is identical or confusingly similar to a trademark orservice mark in which the Complainantshave rights; and

- The Respondent has no rights or legitimate interests in respect of the domain name;and

- The disputed domain name has been registered and is being used in bad faith.

These requirements will be verified respectively.

Identical and Confusing Similarity

"Kagoshima Kotsu (Ћ­Ћ™“‡Њр’К)" was the essential part of the previouscorporate name of Kagoshima Kotsu Kabushikikaisha, one of the Complainants,before the merger on April 1, 2001, and such name is still used, atleast, as the service mark in passenger traffic and transportation business ofIwasaki Corporation, one of the Complainants.  Incidentally, although the Complainants assert that the nameof "Kagoshima Kotsu (Ћ­Ћ™“‡Њр’К)"is used as the trademark in such business, there is no evidence showing thatthe name is registered as the trademark in Japan.  However, it is established by such evidences as brochuresand other documents submitted by the Complainants that the name is used, atleast, as the service mark by Iwasaki Corporation and such mark is well knownto the consumers in, at least, Kagoshima area.  Based upon such facts, Iwasaki Corporation has right in suchservice mark protected under Japanese law (Article 2(1)(i) of "Husei KyosoBoshi Ho" (Unfair Competition Law), 1993 Law No.47).

On the other hand, "Iwasaki Hotels (‚ў‚н‚і‚«ѓzѓeѓ‹ѓY)" is the essential part of the corporate nameof Iwasaki Hotels Corporation, the other one of the Complainants.  It is clear from the record that thedisputed domain names include identical terms, "Ћ­Ћ™“‡Њр’К" and "‚ў‚н‚і‚«ѓzѓeѓ‹ѓY",with the essential part of the Complainants of trade name and with company nameused legitimately in Japan.  Absentthe rebuttal from the Respondent, there is no reason to deny the finding thatthe first requirement is satisfied.

Legitimate Interests

According to the complaint, the Complainantscould not find where and how the Respondent is using or is preparing to use thedisputed domain names.  As theRespondent has not argued any rights or legitimate interests in respect of thedisputed domain names, it is inevitable to conclude that the second requirementis also satisfied.

Bad Faith

In accordance with the Paragraph 4(b)(ii),where it is found that the Respondent have engaged in a pattern of such conduct as having registered the domainnames in order to prevent theowners of the trademark or servicemark from reflecting the mark in a corresponding domain names, such circumstances can be evidence of the registration and use of the disputed domains namein bad faith.  In this case, the Complainants pointed out the fact that theRespondent has acquired such other unrelated domain names representing famousnames of others as  <“м“ъ–{‹вЌs.com> and <“мЌ‘Њр’К.com>. In consideration of the fact that the Respondent has not argued to thecontrary, the third requirement is also satisfied.

Accordingly, all three cumulative requirementsas provided for in Paragraph 4(a)of the Policy are determined to besatisfied.

 

7. Decision

In accordance with Paragraphs 4(b)(i) of the Policy and 15 of the Rules, the Panel decides that the disputed domainname <Ћ­Ћ™“‡Њр’К.com>(bq- -3cph6ukqlt3e5jeqdi.com) shall be transferred from the Respondent (MitadenCo., Ltd.) to one of the Complainants (Iwasaki Corporation); and that thedisputed domain names <‚ў‚н‚і‚«ѓzѓeѓ‹ѓY.com>(bq- -gbci6vkn3pdoxoq.com) and <‚ў‚н‚і‚«ѓzѓeѓ‹ѓY.net>(bq- -gbci6vkn3pdoxoq.net) shall be transferred from the Respondent (MitadenCo., Ltd.) to the other one of the Complainants (Iwasaki Hotels Corporation).

 

 


 

Masato Dogauchi
Sole Panelist

Dated: June 17, 2002

 

Источник информации: https://internet-law.ru/intlaw/udrp/2002/d2002-0357.html

 

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