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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Wasabi Systems Inc. v. G-Net Systems

Case No. D2002-0421

 

1. The Parties

The Complainant is Wasabi Systems Inc. a Delaware (US) corporation with a primary place of business at 104 West 14th Street, 4th Floor, New York, NY 10011, United States of America.

The Respondent is G-Net Systems, of Box No. 35039, King’s Road Post Office, Hong Kong, SAR of China. Administrative and Technical Contact for the domain name is Renny Leung, of the same address.

 

2. The Domain Name and Registrar

The domain name in issue <wasabi.com> (hereafter "the domain name").

The domain name was registered with Intercosmos Media Group d/b/a directNIC.com 650 Poydras Street, Suite 2311 New Orleans, LA 70130, United States of America.

 

3. Procedural History

(1) The Complaint in this case was filed in electronic form.

(2) The WIPO Arbitration and Mediation Center has found that:

- The Complaint was filed in accordance with the requirements of the Rules and Supplemental Rules for the Uniform Domain Name Dispute Resolution Policy;

- Payment for filing was properly made;

- The Complaint complies with the formal requirements;

- The Complaint was properly notified in accordance with the Rules, paragraph 2(a);

- A Response to the Complaint was not filed;

- The Respondent was appropriately served with a Notice of Default; and that

- The Administrative Panel was properly constituted.

As Panelist, I accept these findings.

(3) As Panelist, I submitted a Statement of Acceptance and Declaration of Impartiality and Independence.

(4) No extensions have been granted or orders issued in advance of this decision.

(5) The language of the proceedings is English.

 

4. Factual Background

A. The Complainant and its marks

Complainant is the leading developer and distributor of the computer operating system, called NetBSD, and has wholly-owned subsidiaries in Europe and Australia, and customers and employees around the world. Complainant’s customers include some of the world’s largest microprocessor manufacturers and embedded systems companies.

Complainant is the registered proprietor of US trademark serial number 78012999, registration number 2561880, for the word mark "WASABI" in international class 9. Prior to obtaining the WASABI trademark, Complainant has used the name in business since 1995.

B. The Respondent

According to the Whois database of the concerned registrar, the Respondent in this administrative proceeding is as provided above. No Response was filed and so no further information is known about the Respondent.

 

5. Parties’ Contentions

A. Complainant’s assertions

Complainant asserts that Respondent's domain name is identical or confusingly similar to Complainant’s mark. Specifically it asserts that the domain name contains the string of characters identical to the mark owned by Complainant.

Complainant asserts that Respondent has no legitimate interest or rights in the domain names. Specifically it asserts that

(1) Respondent, a company known as G-Net Systems, has never used the <wasabi.com> domain for any purpose other than as a cybersquatter.

(2) There is no website at that domain, and no goods or services have been offered in connection with it.

(3) When contacted by Complainant regarding the domain, Respondent stated, in an email, dated April 5, 2000, "Well actually i'm (sic) a domain trader and i (sic) expect pretty good price towards some of my domains, like wasabi.com."

(4) Respondent has never been known by the domain name <wasabi.com>.

(5) Respondent has no intention to use the identifier <wasabi.com> in any way and only, as Respondent explicitly stated, intends to sell the domain name, in which it has no legitimate interest, for profit.

Complainant asserts that Respondent registered the domain names and is using them in bad faith. Specifically it asserts that, pursuant to Policy 4(b)(i), bad faith is established by Respondent explicitly stating that it is a domain trader, and expects a "pretty good price towards some of my domains, like wasabi.com."

Accordingly Complainant requests the Panel order that the domain name be transferred to the Complainant.

B. Respondent’s assertions

Respondent has not filed a Response.

 

6. Discussion and Findings

Paragraph 4.a. of the UDRP requires the Complainant to make out three elements:

A. The Complainant has rights in a trade or service mark, with which Respondent’s domain name is identical or confusingly similar (Paragraph 4.a.(i)); and

B. The Respondent has no rights or legitimate interests in respect of the domain name (Paragraph 4.a.(ii)); and

C. The Respondent registered and is using the domain name in bad faith (Paragraph 4.a.(iii)).

A. The Complainant has rights in a trade or service mark, with which Respondent’s domain name is identical or confusingly similar

There are two requirements that a Complainant must establish under this paragraph; that it has rights in a trade or service mark, and that the domain name is identical or confusingly similar to the marks.

The Complainant has provided evidence of registration for its WASABI mark, in class 9 in the US. It is not necessary for the Complainant to demonstrate registrations in multiple classes, or in multiple countries; and therefore I conclude that the Complainant – as registered proprietor of the single WASABI mark – has established the first requirement of this paragraph.

The second requirement is that the domain name be identical or confusingly similar to the marks. Since the domain name is identical to the mark no further investigation is necessary.

The Complainant has shown that it has rights in a trade mark, and that the domain name is identical to this mark. I conclude therefore that the Complainant has satisfied the requirements of paragraph 4.a.(i) of the UDRP.

B. The Respondent has no rights or legitimate interest in respect of the domain name

The Complainant asserts that the Respondent has no rights or legitimate interest in the domain name, as required under paragraph 4.a.(ii) of the UDRP. It makes a number of specific arguments on this point, to wit:

(1) Respondent has never used the <wasabi.com> domain;

(2) There is no website at that domain, and no goods or services have been offered in connection with it;

(3) The Respondent has stated, in an email, dated April 5, 2000, that it was a domain name speculator and expected a good price for domain names such as <wasabi.com>;

(4) Respondent has never been known by the domain name <wasabi.com>; and

(5) Respondent has no intention to use the identifier <wasabi.com> in any way and only, as Respondent explicitly stated, intends to sell the domain name, in which it has no legitimate interest, for profit.

None of the exemplars of legitimate interest given in paragraph 4.c. of the UDRP appear to apply here. Thus, the question is whether the Respondent has provided any basis for concluding that it has rights or a legitimate interest in the domain name, without reference to the specific examples of paragraph 4.c. The Respondent has provided no Response whatsoever, and hence it is essentially impossible to find any evidence of rights or a legitimate interest. Undefended actions in the UDRP are, unfortunately, all too common. Where dealing with a domain name such as this—that has both a generic meaning (the Japanese horseradish mustard) and a specific trade mark usage—it is not hard to imagine that the Respondent might have a legitimate interest. But in the absence of any evidence whatsoever provided by the Respondent, I have no choice but to find that it has no rights or legitimate interest in the domain name.

I conclude that the Respondent has no rights or legitimate interest in the domain name. I conclude therefore that the Complainant has satisfied the requirements of paragraph 4.a.(ii) of the UDRP.

C. The Respondent registered and is using the domain name in bad faith

The final issue is that of bad faith registration and use by the Respondent. For paragraph 4.a.(iii) to apply, the Complainant must demonstrate the conjunctive requirements that the Respondent registered the domain name in bad faith and continues to use it in bad faith.

To establish this, the Complainant asserts that paragraph 4.b.(i) of the UDRP applies here, and argues that bad faith is established by Respondent explicitly stating that it is a domain trader, and that it expects a "pretty good price towards some of my domains, like wasabi.com." Paragraph 4.b.(i) of the UDRP states that the exemplar scenario of an abusive registrant—someone who registers a domain name with the intent of selling, renting or otherwise transferring it to a Complainant—is sufficient to establish the requirements of paragraph 4.a.(iii). Its bare assertions notwithstanding, the Complainant has not provided sufficient evidence to show the application of paragraph 4.b.(i) here. Though the Respondent may be expecting a "good price" for the domain name, there is nothing to suggest that the registration was intended to extract the "good price" from the Complainant, as paragraph 4.b.(i) contemplates. The domain name is for a generic word. One can easily imagine the Respondent getting its "good price" from any number of people seeking a simple and expressive domain name (a condiments manufacturer, spice seller, Japanese restaurant, etc). Moreover, the Complainant’s mark is not exactly a household word. The name registration, without some further evidence of bad faith, does not lead to the inference that the Respondent must have had the Complainant in mind when registering the domain name. As a result, there is no evidence at all that the Respondent directed its registration against the Complainant with the intention of extracting some gain from it, as required by paragraph 4.b.(i). I decline to accept the Complainant’s argument on this point.

The Complainant might have also claimed that domain name speculation of itself amounts to bad faith pursuant to paragraph 4.a.(iii). However it did not; and therefore I am not required to make any decision on this point.

There being no other evidence or assertions of bad faith, I reject the Complainant’s argument that the Respondent registered and is using the domain name in bad faith. I therefore conclude that the Complainant has not satisfied paragraph 4.a.(iii) of the UDRP.

 

7. Decision

The Complainant has not made out all of the elements of paragraph 4.a. of the Uniform Domain Name Dispute Resolution Policy.

Pursuant to Paragraph 4.i. of the Uniform Domain Name Dispute Resolution Policy and Rule 15 of the Rules for the Uniform Domain Name Dispute Resolution Policy, the requested remedy is denied.

I hereby order that the domain name <wasabi.com> remain registered to the Respondent.

 


 

Dan Hunter
Sole Panelist

Dated: July 19, 2002

 

Источник информации: https://internet-law.ru/intlaw/udrp/2002/d2002-0421.html

 

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