6. Discussion and Findings

Initially, the Panel must determine the language of the proceeding. Paragraph 11(a) of the Rules provides that the language of the Registration Agreement shall be the language of the administrative proceeding, unless otherwise agreed by the parties. The same provision also states that the determination of the language of the proceeding is Ў°subject to the authority of the Panel . . ., having regard to the circumstances of the administrative proceeding.Ў±

Here, the registrar has confirmed to the Center that the language of the Registration Agreement is Korean. The Center transmitted to the Respondent the Notice of Complaint and Commencement of Administrative Proceeding, in both Korean and English. In its cover message, the Center informed, again in both Korean and English, of the ComplainantЎЇs request to proceed in English, and invited the Respondent to contact the Center within one week if it experienced Ў°language difficulties with the Complaint.Ў± The Center instructed, in both languages, Ў°If we do not hear from you by this date, we will proceed on the basis that you have no objection to the ComplainantЎЇs request that English be the language of the proceedings.Ў±

The Respondent has failed to participate in the proceeding, and has been notified of its default. The Complainant, the only remaining party, has requested that the proceeding be in English. Taking into account all the circumstances, the Panel agrees.

A. Identical or Confusingly Similar

JULBO appears to be an arbitrary or fanciful mark for eyeglasses, sunglasses, and sports glasses. The Complainant explains that the mark is Ў°a contraction of its founderЎЇs name, Ў®Jules Baud.ЎЇЎ± Complaint, at 5. The Complainant has rights in the JULBO mark; the disputed domain name <julbo.com> is confusingly similar to the mark.

The Panel finds that the Complainant has satisfied the first element of paragraph 4(a) of the Policy.

B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy states that a respondent may demonstrate rights or legitimate interests in the domain name, by demonstrating evidence of:

(i) before any notice to [the respondent] of the dispute, [the respondentЎЇs] use of, or demonstrable preparations to use, the domain name or a name corresponding to 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, even if [the respondent has] acquired no trademark or service mark rights; or

(iii) [the respondent] making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

There is no evidence in the record to support any of these possibilities. The circumstances described in paragraph 4(c)(i) and (c)(iii) are plainly absent here. Paragraph 4(c)(ii) presents an opportunity for discussion of some interest, but short of establishing the RespondentЎЇs rights or legitimate interests. Internet users who type in the domain name are taken to a website with Korean text. Appearing prominently at the top of the page is the phrase – Бс°Еїо єёµрєфµщ – or in English transliteration, jul-guh-oon bo-dy-buil-ding, with a basic translation of Ў°happy body building.Ў± Perhaps the Respondent would argue that the domain name combines the first characters of the Ў°Бс°ЕїоЎ± and Ў°єёµрєфµщЎ± phrases, or Ў°julЎ± and Ў°bo,Ў± respectively. But this falls far short of evidence that the Respondent has been commonly known by the domain name.

Importantly, paragraph 4(c) provides an illustrative, and not exhaustive, list of ways in which the Respondent may demonstrate rights or legitimate interests in respect of the domain name. Nevertheless, the Panel is not able to find any circumstances that would demonstrate the RespondentЎЇs rights or legitimate interests in <julbo.com>.

The Panel finds that the second element is satisfied.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy provides four examples of how Ў°registration and use of a domain name in bad faithЎ± can be shown. The Complainant argues that the Respondent Ў°only registered the Ў®Julbo.comЎЇ domain name in order to prevent [the Complainant] from reflecting its trade mark in a corresponding domain name.Ў± Complaint, at 8. This circumstance is described in paragraph 4(b)(ii). Yet the provision adds the requirement, Ў°provided that [the Respondent has] engaged in a pattern of such conduct.Ў± The Complaint does not further elaborate on the requisite Ў°patternЎ± of conduct.

Nevertheless, the Panel finds bad faith to be present under paragraph 4(b)(iv), in that Ў°by using the domain name, [the Respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the RespondentЎЇs] web site . . ., by creating a likelihood of confusion with the complainantЎЇs mark as to the source, sponsorship, affiliation, or endorsementЎ± of the RespondentЎЇs website. In this regard, the fact that the RespondentЎЇs website contains mostly Korean text is of little consequence. See AT&T Corp. v. Amjad Kausar, WIPO Case No. D2003-0327 (Ў°The Panel does not . . . consider it necessary to find any sustained confusion of users as to the ComplainantЎЇs association with the sites linked with the domain names after the initial moment of calling up the pages to which the domain names resolve.Ў±) The Respondent is not assisted by its failure to submit a Response or attempt any explanation for its registration and use of this rather particular domain name.

The Panel finds that the third element of registration and use in bad faith is present.

ЎЎ

7. Decision

The Panel concludes that the Complainant has established the requisite elements of paragraph 4(a) of the Policy, as discussed above. Thus, under different factual circumstances, the Panel reaches the same result as did the previous panel in a proceeding involving the same domain name. Julbo, supra.

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 <julbo.com> be transferred to the Complainant.

Ilhyung Lee
Sole Panelist

Dated: June 19, 2008

Источник информации: https://internet-law.ru/intlaw/udrp/2008/d2008-0525.html

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