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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Taylor Made Golf Company, Inc. d/b/a/ TaylorMade adidas Golf v. Kang Doeck-Ho

Case No. D2005-1262

 

1. The Parties

The Complainant is Taylor Made Golf Company, Inc. d/b/a/ TaylorMade adidas Golf, of Carlsbad, California, United States of America, represented by Sheppard, Mullin, Richter & Hampton, United States of America.

The Respondent is Kang Doeck-Ho, of Daegu, Republic of Korea.

 

2. The Domain Name and Registrar

The disputed domain name <maxfligolf.com> is registered with Cydentity, Inc. dba Cypack.com.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 7, 2005. On December 7, 2005, the Center transmitted by email to Cydentity, Inc. dba Cypack.com a request for registrar verification in connection with the domain name at issue. On December 8, 2005, Cydentity, Inc. dba Cypack.com 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 notified the Complainant on December 15, 2005, that the default language of the proceedings is Korean. In response, the Complainant filed “Complainant’s Request for the English Language to Govern Proceedings” on December 16, 2005. The Center accepted Complainant’s position on a provisional basis and notified the Parties of such on December 22, 2005. 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 December 22, 2005. In accordance with the Rules, paragraph 5(a), the due date for Response was January 11, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 13, 2006.

The Center appointed Ik-Hyun Seo as the sole panelist in this matter on January 23, 2006. 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 Taylor Made Golf Company (d/b/a TaylorMade adidas Golf) owns many trademark registrations for MAXFLI in various countries, designating, inter alia, golf balls and golf related goods, and the MAXFLI family of marks has been in use for more than 76 years. The Complainant also operates a site (“www.maxfli.com”), which it began to use more than three years before the Respondent obtained his registration for maxfligolf.com.

The Respondent appears to be an individual, and registered the subject domain name on May 23, 1999.

 

5. Parties’ Contentions

A. Complainant

The Complainant contends that the disputed domain name is identical or confusingly similar to marks in which the Complainant has rights. More specifically, the Complainant asserts that it holds trademark registrations in many countries for MAXFLI as well as variations thereof, and that the subject domain name consists of the Complainant’s trademark MAXFLI, with the additional term “golf”, which is simply the area of business in which the trademark MAXFLI is used.

The Complainant also contends that the Respondent has no rights or legitimate interest in the subject domain name. More specifically, the Complainant asserts that the Respondent is simply using the domain name to sell links to sites, and that the Respondent is not commonly known by the domain name in question.

Finally, the Complainant contends that the domain name was registered and is being used in bad faith. More specifically, the Complainant asserts that the domain name was registered and acquired primarily for the purposes of selling links to competitors of the Complainant, to divert the Complainant’s customers who are looking for goods identified under the MAXFLI trademark, and to attract for commercial gain Internet users to his website by creating a likelihood of confusion with the MAXFLI trademark as to the source, sponsorship, affiliation, or endorsement of the domain name.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

 

6. Discussion and Findings

Preliminary Issue: Language of the Proceedings

The default language of the proceedings is Korean, but the Complainant submitted arguments as to why the proceedings may proceed in English, without the necessity of submitting a translated complaint in the Korean language. The Center proceeded in English, and advised the Respondent that the Center would accept the Response in either Korean or English. The Parties were further advised that the ultimate decision regarding the language of the proceedings would be within the discretion of the Panel, and that the Panel may request translations from either Party. The notice provided by the Center to the Parties was written both in English and in Korean to accommodate the situation and the Parties.

Under the circumstances and with the present record, this Panel determines that the proceedings maybe conducted in English, particularly since the Respondent failed to file a Response, and failed to object to the Complainant’s request on the language of this proceeding.

The Panel also notes that the content of the website associated with the disputed domain name is displayed entirely in English.

A. Identical or Confusingly Similar

The Complainant has submitted evidence of owning numerous registrations for the mark “MAXFLI” in various jurisdictions. The disputed domain name wholly incorporates this trademark and simply adds the term “golf” thereafter. The addition of such a descriptive or generic term to an existing trademark does little, if anything, to dispel confusion. Bridgestone Corporation v. Horoshiy, Inc., WIPO Case No. D2004-0795 (BRIDGESTONE trademark asserted against <bridgestonegolf.com>).

For the reasons given above, the Panel finds that the Complainant has established this element, and concludes that the subject domain name is confusingly similar to the Complainant’s registered trademark.

B. Rights or Legitimate Interests

The Complainant has made the required allegations that the Respondent has no rights or legitimate interests in the subject domain name, and the Respondent has declined his opportunity to present a rebuttal or explanation. Under the specific circumstances of this case, the Panel finds it reasonable to accept the Complainant’s unchallenged allegations on this point.

Accordingly, the Panel finds that the Complainant has established this element, and concludes that the Respondent has no rights or legitimate interests in the subject domain name.

C. Registered and Used in Bad Faith

Under the facts of this case, this Panel finds that there is sufficient evidence of bad faith in both the registration and use of the disputed domain name. The domain name wholly incorporates the Complainant’s trademark, and adds to it the term “golf”. Golf is exactly the business area in which the Complainant’s trademark is used. This suggests that the Respondent knew of the Complainant’s trademark and business when he first registered the subject domain name. Further, more than six years have passed since the Respondent registered the subject domain name. However, rather than offering bona fide services via the disputed domain name, it is merely being used in connection with what appears to be a domain name parking service. Domain name parking services typically provide content and links that are somewhat related to the subject domain name, with the purpose of generating revenue for themselves and the domain name owner when a visitor visits and/or uses the sponsored websites. This type of use of a domain name by a cyber-squatter is quite common.

For the reasons given above, the Panel finds that the Complainant has established the third and final element under Paragraph 4(a)(iii).

 

7. Decision

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 be transferred to the Complainant.


Ik-Hyun Seo
Sole Panelist

Date: February 6, 2006

 

Источник информации: https://internet-law.ru/intlaw/udrp/2005/d2005-1262.html

 

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