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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Kuraray Co., Ltd. v. Hideo Hayashi

Case No. D2007-1929

1. The Parties

The Complainant is Kuraray Co., Ltd., Okayama, Japan, represented by Abe, Ikubo & Katayama, Japan.

The Respondent is Hideo Hayashi, Aichi, Japan.

2. The Domain Name and Registrar

The disputed domain name <kuraray.com> is registered with eNom.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 27, 2007. On December 27, 2007, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On December 28, 2007, eNom transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. 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 January 8, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was January 28, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 29, 2008.

The Center appointed Masato Dogauchi as the sole panelist in this matter on February 7, 2008. 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 is a Japanese company, developing, manufacturing and commercializing chemical fiber and other chemical products, whose customers are not only textile industries but also electronic, medical and other industries. The foreign sale rate of the Complainant is about 48% recently.

The Complainant’s company name at the time of its establishment in 1926 was “Kurashiki Kenshoku Co.” Since 1949, when the company name changed to “Kurashiki Rayon Co., Ltd.”, the Complainant has been using a character string “KURARAY” as its mark. The company name changed to the present “Kuraray Co., Ltd.” (English name: KURARAY CO., LTD.) in 1970 (although note 1 in the Complaint on page 7 reads “1949”, which seems to be typographical error, since the Japanese translation thereof reads “1970” in the document of Annex 4 submitted by the Complainant).

The Complainant is the owner of the registered trademarks in Japan and abroad, including the following:

- Japanese trademark registrations of a character string, “kuraray”, No. 5004313 registered on November 17, 2006; No. 5009926 registered on December 8, 2006;

- Japanese trademark registrations of a character string “KURARAY” with the Complainant’s logo mark “K”, No. 816989 registered on May 15, 1969; No.816987 registered on May 15, 1969; No. 841296 registered on December 17, 1969; No. 4348803 registered on January 17, 2000;

- Japanese trademark registrations of a combination of the Complainant’s logo mark “K” and a character string “クラレ” (“kuraray” in Japanese);

- 37 trademark registrations in 13 countries of a character string “kuraray”, for instance, No. 300644418 registered in Hong Kong on May 23, 2006;

- 237 trademark registrations in 81 countries of a character string “KURARAY” with the Complainant’s logo mark “K”, for instance, No. 69026 registered in Ireland on April 1, 1965.

The Complainant has broadcasted TV commercials for its products under the name of “KURARAY” since the 1970’s, and has opened its website in Japanese and English, using a character string of “kuraray” since May 1996.

The Respondent is an individual who registered the disputed domain name <kuraray.com> with eNom on January 11, 2000. This registration is maintained and the expiration date is October 25, 2010. The registration agreement provides that the registrant, the Respondent, submits to the jurisdiction of Federal and state courts located in King County, Washington. The registered address of the Respondent under the agreement is given as being in Aichi, Japan, the language of the registration agreement is English.

5. Parties’ Contentions

A. Complainant

With regard to the first requirement (Paragraph 4(a)(i) of the Policy) that the domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights, the Complainant asserts that the domain name reproduces precisely the Complainant’s trademark “kuraray” registered in various ways, and that the mere adjunction of the gTLD, “.com” in this case, does not change the likelihood of confusion. It also asserts that the difference between the main part of the domain name “kuraray” and the Complainant’s trademark of a character string “KURARAY” with the Complainant’s logo mark “K” is nominal: the latter is written capital letters with “K” mark.

With regard to the second requirement (Paragraph 4(a)(ii) of the Policy) that the Respondent has no rights or legitimate interests in respect of the domain name, the Complainant asserts that its trademark “KURARAY” is unique since it is a coined term created by selecting letters from the Complainant’s former company name “Kurashiki Rayon Co., Ltd.”. According to the Complainant, as far as it knows, there is no fact that the domain name was obtained by any individual or organization which has a capital tie-up, a business connection, or a business tie-up with the Complainant; there has been no individual or organization but the Complainant which conducts business activities or private activities using “KURARAY” or any names similar to this, and above all, there is no fact that the public has such recognition; the Respondent does not conduct any business activity using “KURARAY” or any names similar to this, and there is no such recognition; no website has been opened to use the domain name; and there is no trace of the domain name’s being used for business activities.

With regard to the third requirement (Paragraph 4(a)(iii) of the Policy) that the domain name was registered and used in bad faith, the Complainant asserts that it seems obvious that the Respondent knew or must have known the Complainant at the time it registered the domain name, since the trademark is a unique coined term which is well-known world wide especially in Japan. The Complainant further asserts that the Respondent, who is considered to be an individual, owns as many as 14 domain names.

B. Respondent

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

6. Discussion and Findings

As the registration agreement of the domain name <kuraray.com > incorporates the Policy, this proceeding is to be examined in accordance with, in addition to the Policy, the Rules and Supplemental Rules.

This Panel was properly appointed in accordance with the Policy and has jurisdiction to decide the dispute over the domain name. Furthermore, as the registration agreement is written in English, the language of the proceeding is to be done in English in accordance with paragraph 11 of the Rules.

The Panel has found that the procedural steps taken by the WIPO Center are in compliance with the provisions of the Rules. Notwithstanding the fact that the Respondent did not submit any statement within the time periods under the Rules, the Panel may proceed to a decision based on the Complaint in accordance with paragraph 14 of the Rules.

With regard to the merits of the case, according to the paragraph 4(a) (i) to (iii) of the Policy, the Complainant must prove that each of the following three elements are present:

- The domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights (“Identical or Confusingly Similar”); and

- The Respondent has no rights or legitimate interests in respect of the domain name (Rights or Legitimate Interests); and

- The domain name was registered and used in bad faith (Registered and Used in Bad Faith).

The Panel will verify these elements on the basis of the evidence submitted by the Complainant only, since the Respondent did not respond nor submit any other materials.

A. Identical or Confusingly Similar

The Complainant has proved to have rights in the trademarks “kuraray” and “KURARAY” (with the Complainant’s logo mark “K”) which are registered in Japan and abroad.

The disputed domain name only differs from the trademark “kuraray” in that the gTLD “.com” is added to the domain name. According to the consistent practice under the UDRP, this difference is irrelevant and the domain name is identical to the Complainant’s trademark. In addition, in relation to the trademark “KURARAY” (with the “K” mark), it may be concluded that the domain name is confusingly similar to the trademark.

Accordingly, the Panel concludes that the domain name is identical or confusingly similar to the trademarks in which the Complainant has rights.

B. Rights or Legitimate Interests

There is no evidence which show that the Complainant has authorized the Respondent to register or use the trademark “kuraray” or “KURARAY” as a domain name. The Panel is satisfied that the Complainant has at least made a prima facie showing that the Respondent lacks rights or legitimate interests in the domain name which the Respondent has not rebutted.

The Panel concludes that the Respondent has no rights or legitimate interests in respect of the domain name.

C. Registered and Used in Bad Faith

According to the Paragraph 4(a)(iii) of the Policy, both bad faith registration and bad faith use must be fulfilled.

In respect of the bad faith registration, it is noted that the Complainant has used a character string “KURARAY” as its mark since 1949, when the company name changed to “Kurashiki Rayon Co., Ltd.”. The company name changed to the present “Kuraray Co., Ltd.” (English name: KURARAY CO., LTD.) in 1970. And, the Complainant has registered trademarks of a character string “KURARAY” with the Complainant’s logo mark K in Japan and abroad since 1960’s. In addition, the Complainant has broadcasted TV commercials for its products under the name of “KURARAY” and its products since, at the1970’s, and has opened its website in Japanese and English, using a character string of “kuraray” since May, 1996.

These facts are proven by the documents submitted by the Complainant. Considering that the registered address of the Respondent of the domain name is in Japan, it is reasonable to assume that the Respondent had prior knowledge of the name and mark of “KURARAY” or “kuraray” when the Respondent registered the domain name on January 11, 2000.

Furthermore, as noted, there is no evidence to show the Respondent’s legitimate rights to the name of “KURARAY” or “kuraray”. The Panel concludes in the circumstances that the Respondent registered the domain name in bad faith.

In respect of use, on the other hand, no website is displayed at the domain name in this case, as the Complainant admits. In addition, the Complainant does not present any evidence that the Respondent has approached the Complainant in regard to sale of the domain name. Although the Complainant shows with evidence that the Respondent, who is considered to be an individual, has as many as 14 domain names, it would not be enough to conclude that the Respondent has engaged in a pattern of such conduct as selling, renting, or otherwise transferring the domain name registrations for any benefits to parties who has legitimate rights in them.

According to well-established precedent, however, the lack of active use of the domain name does not itself prevent a finding of bad faith. It is possible, in certain circumstances, due to the inactivity of the domain name and passive holding, to find bad faith. In order to determine whether the Respondent is acting in bad faith or not, all the circumstances of the case must be examined. See, Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003; Jupiters Limited v. Aaron Hall, WIPO Case No. D2000-0574; Ladbroke Group Plc v. Sonoma International LDC, WIPO Case No. D2002-0131.

In this case, as stated above, the coined term “KURARAY” or “kuraray” has been widely-known at least in Japan since at least the 1970’s. In addition, there is no response from the Respondent to this Complaint, and there seems no reasonable possibility for the Respondent to use the domain name in good faith. These facts lead to the determination that the Respondent does use the domain name in bath faith.

Accordingly, the Panel concludes that the domain name was registered and is used in bad faith.

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, <kuraray.com>, be transferred to the Complainant.


Masato Dogauchi
Sole Panelist

Dated: February 19, 2008

 

Источник информации: https://internet-law.ru/intlaw/udrp/2007/d2007-1929.html

 

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