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WIPO Arbitration and
Yamaha Corporation v. Zhoulei
Case No. D2004-0126
1. The Parties
The Complainant is Yamaha Corporation, of Hamamatsu, Shizuoka, Japan, represented by Gevers & Partners S.A., Belgium.
The Respondent is Zhoulei, of Guangzhou, China.
2. The Domain Name and Registrar
The disputed domain name <yamaha-hk.com> is registered with Network Solutions, LLC.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on February 18, 2004. On February 18, 2004, the Center transmitted by email to Network Solutions, LLC a request for registrar verification in connection with the domain name at issue. On February 19, 2004, Network Solutions, LLC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules").
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on February 25, 2004. In accordance with the Rules, paragraph 5(a), the due date for the Response was March 16, 2004. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 22, 2004.
The Center appointed Ilhyung Lee as the sole panelist in this matter on March 29, 2004. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
4. Factual Background
The Complainant, Yamaha Corporation, a Japanese corporation, has a "long history in the field of musical instruments, professional audio products, home audio/video products and computer peripheral products as well as in the field of motor vehicles." The Complainant has registration for trademarks bearing the YAMAHA name in numerous countries throughout the world. The Complainant has also registered through its affiliated entities the domain names <yamaha.com> (on November 1, 1994) and <yamaha-europe.com> (on October 9, 1996).
The Respondent, Zhoulei, whose address of record is in China, registered the
domain name <yamaha-hk.com> on April 8, 2002.
The Respondent has defaulted in this proceeding. Paragraphs 5(e) and 14(a) of the Rules allow the Panel to decide the dispute based on the Complaint; paragraph 14(b) permits the Panel to draw appropriate inferences from the failure to submit a response.
5. Parties’ Contentions
The Complainant argues that: the Respondent’s domain name is identical or confusingly similar with the YAMAHA marks in which the Complainant has rights; the Respondent has no rights or legitimate interests in respect of the domain name; and the domain name was registered and is being used in bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy provides that in order to prevail in this proceeding, the Complainant must prove each of the following three elements:
(i) the domain name in dispute is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(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.
A. Identical or Confusingly Similar
The Complainant states that it and its subsidiaries own a number of trademark registrations throughout the world that consist of or feature the term YAMAHA. Such mark is well known, with significant goodwill attached. There is no dispute that the Complainant’s registration and use of the YAMAHA mark, as well the registration of the <yamaha.com> domain name, took place well before the Respondent’s registration of the disputed domain name <yamaha-hk.com>. The Complaint has rights in its YAMAHA trademarks.
The Panel finds that the disputed domain name <yamaha-hk.com> is confusingly
similar to the Complainant’s mark YAMAHA. YAMAHA is a strong mark. The mere
addition of "-hk" (presumably, for Hong Kong) and the generic top
level domain ".com" is not enough to avoid confusion. Given the presence
of the prominent "yamaha" term in the disputed domain name, Internet
users will likely be confused into thinking that the Respondent, the Respondent’s
business, or the Respondent’s website is connected with, sponsored or endorsed
by, the Complainant.
The Panel’s decision in this regard is in accordance with a number of WIPO
decisions. E.g., Inter-IKEA Systems B.V. v. Evezon Co. Ltd., WIPO
Case No. D2000-0437 (finding that disputed domain name <ikea-korea.com>
is confusingly similar to Complainant’s trademark IKEA); NIKE, Inc. v. Jaeik
Jung, WIPO Case No. D2000-1471 (finding
that disputed domain name <nike-europe.com> is confusingly similar to
Complainant’s trademark NIKE). The Panel finds that the Complainant has proved
the first element.
B. Rights or Legitimate Interests
Under paragraph 4(c) of the Policy, the Respondent may demonstrate rights or
legitimate interests in the domain name by providing evidence of: (i) the Respondent’s
use of the domain name in connection with a bona fide offering of goods
or services; or (ii) the Respondent being commonly known by the domain name;
or (iii) the Respondent making a legitimate noncommercial or fair use of the
domain name. The Panel addresses the three possibilities in turn.
The Respondent’s website displays graphics of audio equipment, along with superimposed
text in both Chinese and English, including the phrase, "Complete Series
of YMA Professional Acoustic Equipment". (YMA is presumably the name of
the Respondent’s company.) The Complainant asserts that the products offered
by the Respondent are "a clear imitation of YAMAHA products," and
that it will commence legal action in the Chinese courts. In the case before
the Panel, the use of a domain name that appropriates a well-known trademark
to promote competing or infringing products cannot be considered "a bona
fide offering of goods or services" within the meaning of Paragraph
4(c)(i) of the Policy. See The Chip Merchant, Inc. v. Blue Star Electronics,
d/b/a Memory World, WIPO Case No. D2000-0474.
Moreover, there is no evidence in the case record to suggest that the Respondent
is commonly known by the domain name, or that the Respondent is making a legitimate
noncommercial or fair use of the domain name.
Importantly, the circumstances identified in paragraph 4(c) to support rights
or legitimate interests in the domain name are not exhaustive. Nevertheless,
the Panel is at a loss to ascertain any circumstances that would demonstrate
the Respondent’s rights or legitimate interests in <yamaha-hk.com>. The
second element is also satisfied.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states that bad faith in the registration
and use of a domain name is shown when the Respondent, by using the domain name,
has "intentionally attempted to attract, for commercial gain, Internet
users to [the Respondent’s] website..., by creating a likelihood of confusion
with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement"
of the Respondent’s website or of products on the website.
In the present case, the Respondent has incorporated into its domain name a
well-known trademark for audio equipment to promote the Respondent’s own similar,
if not infringing, products. Given that the YAMAHA trademarks have recognition
and registrations worldwide, including China, it is difficult to imagine that
the Respondent appropriated the name without knowledge of the Complainant, the
Complainant’s audio products, or the goodwill attached to the YAMAHA mark. The
Panel draws appropriate inferences from the Respondent’s default, and finds
in favor of the Complainant. The Complainant has established bad faith in registration
and use of the domain name.
For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy
and 15 of the Rules, the Panel orders that the domain name <yamaha-hk.com>
be transferred to the Complainant.
Dated: April 8, 2004