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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

GetMore A/S v. Arisu Tech

Case No. D2008-1595

1. The Parties

The Complainant is GetMore A/S of IshГёj, Denmark, represented by Jette de Fries, Denmark.

The Respondent is Arisu Tech of Seoul, Republic of Korea, represented by DongSuh Law Offices, Republic of Korea.

2. The Domain Name and Registrar

The disputed domain name <getmore.com> is registered with Tucows.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 21, 2008. On October 21, 2008, the Center transmitted by email to Tucows a request for registrar verification in connection with the disputed domain name. On October 21, 2008, Tucows transmitted by email to the Center its verification response, confirming that the Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on October 28, 2008. The Center verified that the Complaint together with the amendment to the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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 October 29, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was November 18, 2008. The Response was filed with the Center on November 17, 2008.

The Center appointed Thomas P. Pinansky as the sole panelist in this matter on December 5, 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 the owner of the domain name <getmore.dk> since May 15, 2003. Getmore A/S is the company name of the Complainant since 2004.

The Complainant’s trademark is not registered. The earliest date of the evidence submitted by the Complainant to support its first use in commerce is March 2004.

The website of the disputed domain name does not appear to be related to the Complainant’s area of business.

The Complainant operates an on-line e-commerce hardware and electronics business in Denmark.

The Respondent registered the disputed domain name on April 3, 2004.

5. Parties’ Contentions

A. Complainant

The disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.

Trademark rights have been acquired through use in compliance with Section 3(2) of the Danish Trademarks Act.

The disputed domain name violates paragraph 4(a)(i) of the Policy as it is identical to the Complainant’s earlier trademark rights to the trademark GETMORE.

The Complainant has built up a great portion of goodwill related to the trademark GETMORE and to the domain name <getmore.dk>.

The Respondent has no rights or legitimate interests in respect of the disputed domain name.

The Respondent has not received permission or authorization to use the Complainant’s trademark. The Complainant’s use of the trademark precedes the registration of the disputed domain name as the date of creation of the disputed domain name is April 3, 2004 while the Complainant’s domain name was created May 15, 2003.

The Respondent is not known or identified as related to any business with the “getmore” name, nor does it appear to be engaged in other legitimate commercial or noncommercial use of the disputed domain name.

The disputed domain name was registered and is being used in bad faith.

The disputed domain name appears to have been created with the purpose of selling the domain name and is clearly disrupting the Complainant’s possibility of doing business via this corresponding domain name.

The disputed domain name has been offered for sale for EUR 200,000 and prior to this for EUR 300,000 being amounts that clearly go beyond the regular expenses of registration and with the clear purpose to obtain a profit and to trade on the goodwill of the Complainant’s trademark.

Further the Respondent is not known as an individual or business organization by the disputed domain name.

B. Respondent

“Getmore” is a generic term comprising the words “get” and “more.” When searching “get more” in Google.com, more than 100 million web pages are searched, revealing “get more” to be a commonly-used term.

In the event that the Complainant’s trademark consists of generic term(s), and if the trademark is not well-known in the world or in the same economic area of the Respondent, the bad faith of the Respondent should be recognized restrictively.

The Complainant registered the domain name <getmore.dk> on May 15, 2003, and there are no other evidences that the Complainant used the mark GETMORE in commerce before the Respondent registered the disputed domain name. Several invoices (as of March 18, 2004), submitted by the Complainant, are printouts of digital files that make it difficult to regard them as real transaction records.

According to web.archive.org, which saves all website information across the world by each period, <getmore.dk> was under construction on January 30, 2004, and commenced normal operation after May 10, 2004 (see Figure 1, 2, 3, 4 and Annex 1 to the Response). The Respondent registered the disputed domain name on April 3, 2004, which was at the time when the Complainant used the trademark, or before.

The period of use of the Complainant’s trademark was not long. Moreover, the Complainant did not register the mark as a European community trademark or International trademark in the Madrid system (Annex 2, 3 to the Response), for which the registration process is not difficult. In this case, the Complainant could not argue the rights to a person who lives in a foreign country.

The GETMORE trademark, as argued by the Complainant, is similar to “getmore for less” which is an earlier registered trademark, so it could not be effective as a trademark under the Danish trademark law.

Hence, it does not seem that the Complainant has trademark rights under the meaning of the UDRP.

The Respondent registered the disputed domain name because it consists of a generic term, and it wanted to use the domain name for its business.

The Respondent has operated the website at “www.tank.co.kr”, which is a community website providing and sharing computer-related information, since 2002.

The Respondent is making a fair use of the disputed domain name consistent with Paragraph 4(c)(iii) of the Policy.

The Respondent did not register and use the disputed domain name for an unlawful purpose, and the Complainant could not prove the unlawful intentions of the Respondent.

There is no evidence that the Respondent knew of the trademark of the Complainant when it registered the domain name. Rather, it is more reasonable that the Respondent did not know of the trademark of the Complainant when it registered the disputed domain name.

The Complainant’s trademark was not registered, so it was impossible for the Respondent to have known of the Complainant’s trademark.

In order to argue that people living in South Korea knew the trademark used in Denmark, the Complainant should prove that his trademark was well-known globally by running his business, providing the service with its trademark within Republic of Korea, or registering the trademark in Republic of Korea.

The website of the Complainant has been active since May 10, 2004, and is not written in English, but Danish.

The <getmore.dk> website of the Complainant was not open at the time when the Respondent registered the disputed domain name on April 3, 2004, and the current form of <getmore.dk> was completed in May 2004.

Therefore, the Respondent’s intention is just to sell the disputed domain name consisting of a generic term to anybody, not to the Complainant.

The fact, that “getmore” is a generic term and cannot infringe upon a trademark, is able to be confirmed by the number of domain names in which “getmore” is used as second level name which are registered not by the Complainant but by a third party.

The Complainant has not successfully proved the Respondent’s registration and use of the disputed name in bad faith.

Therefore, the Complainant cannot prove any elements of UDRP 4(a), so the Complaint should be denied.

The Complainant does not have the trademark registered in the EU or Madrid System, nor in Denmark. The Complainant just created the domain name <getmore.dk> at the time when the Respondent had registered the disputed domain name, and did business partially selling computer hardware through the Internet within Denmark.

The Complainant found that the disputed domain name is used for keyword ads in Sedo.com, approached deliberately, negotiated a sales price of the domain name, and started this dispute procedure. In these circumstances, the Complaint should be declared as having engaged in attempted reverse domain name hijacking.

6. Discussion and Findings

A. General

According to paragraph 4(a) of the Policy, for the Complaint to succeed in relation to the disputed domain name, the Complainant must prove that

(i) The disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) The Respondent has no rights or legitimate interests in respect of the disputed domain name; and

(iii) The disputed domain name has been registered and is being used in bad faith.

B. Identical or Confusingly Similar

The Complainant contends that it has acquired trademark rights under Danish law before the disputed domain name was registered. The Respondent disputes this claim.

It is well-established that for the purposes of paragraph 4(a)(i) of the Policy the date of the coming into existence of a complainant’s rights is irrelevant provided that they exist at the date of the complaint.

As previous panels have found, the addition of a generic top-level domain name such as “com” is irrelevant when determining whether a disputed domain name is identical or confusingly similar to a protected mark. See e.g., Aous Uweyda v. Abdallah Sheet, NAF Claim No. FA165119 and Universal City Studios, Inc. v. G.A.B. Enterprises, WIPO Case No. D2000-0416.

Accordingly, the Panel finds that the disputed domain name is identical to the Complainant’s trademark rights.

C. Rights or Legitimate Interests

In light of the Panel’s finding under the next heading, it is unnecessary for the Panel to address this issue.

D. Registered and Used in Bad Faith

The Complainant asserts that the disputed domain name registration does not pre-date the Complainant’s <getmore.dk> registration, and it had started trading earlier and had established certain trademark rights pursuant to Danish law before the registration of the disputed domain name.

The Complainant produced some, but very thin, evidence to support its allegations. The Complainant also argues that the effort to sell the disputed domain name is further evidence of bad faith.

The Respondent has gone to some lengths to respond to the Complaint and raises a number of substantive issues that the Complaint does not sufficiently address.

Had more evidence been provided supporting its allegations, it is possible the Complainant may have succeeded. However, given that scant evidence is provided of the use of the mark before the disputed domain name’s registration, and the Complainant’s <getmore.dk> domain name was apparently not utilized until after the disputed domain name’s registration, the Complainant has failed to satisfy the Panel that the disputed domain name was registered and is being used in bad faith.

It is telling that the claimed first use of the Complainant’s mark in May of 2003 is supported only by an “invoice” from March 18, 2004. The disputed domain name was registered in April 3, 2004, less than a month after the demonstrated first use of the Complainant’s mark. Had only evidence of the Complainant’s use of its mark been available (which evidence would have presumably been available to the Complainant), presumably it would have been provided to the Panel. As no such evidence was provided, the Panel cannot conclude that the Respondent registered the disputed domain name in bad faith.

7. Decision

For all the foregoing reasons, the Complaint is denied.


Thomas P. Pinansky
Sole Panelist

Dated: December 22, 2008

 

Источник информации: https://internet-law.ru/intlaw/udrp/2008/d2008-1595.html

 

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