WIPO

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

KT Freetel Co., Ltd. v. Young Chul Chang

Case No. D2002-0495

 

1. The Parties

The Complainant is KT Freetel Co., Ltd., having an office at 890-20, Daechi-dong, Gangnam-gu, Seoul, Republic of Korea .

The Respondent is Young Chul Chang (a/k/a "fafdasfda")[1], with a mailing address at 27 Pungsan-dong, Hanam, Gyunggi-do 465-170, Republic of Korea.

 

2. The Domain Names and Registrar

The first domain name is <ktfmember.com>.

The second domain name is <018eplaza.com>.

The Registrar is Tucows, Inc., having an office at 96 Mowat Toronto, Ontario, Canada.

 

3. Procedural History

On May 28 and 31, 2002 , an original complaint about, inter alia, the two domain names, was filed in electronic form and in hard copy, respectively, by the Complainant with the WIPO Arbitration and Mediation Center (the "Center").

On May 30, 2002, the Center received from the registrar identified in the original complaint, verification of required information about the domain name. The Center obtained confirmation from the Registrar that the first and second domain names were registered with it and that they were registered to the Respondent.

As a result of being advised by the Center of what it learned, an amended complaint about the two domain names (hereinafter, "Complaint"), was filed by the Complainant with the Center on June 5 and June 11, 2002, in electronic form and in hard copy, respectively.

The Center obtained confirmation from the Registrar that the first and second domain names were registered with it and that they were registered to the Respondent.

The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy") adopted by the Internet Corporation for Assigned Names and Numbers ("ICANN"), 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").

On June 13, the Center forwarded the Notification of Complaint and Commencement of Administrative Proceeding by email and post to Respondent. The due date for a response was indicated as July 3, 2002.

On July 18, 2002, the Center sent Notification of Respondent Default by email to Respondent as no response had been received by the due date.

The undersigned Panelist, Mr. Mark Yang, submitted to the Center a Statement of Acceptance and Declaration of Impartiality and Independence.

On August 5, 2002, the Center transmitted by email to the parties a Notification of Appointment of Administrative Panel and Projected Decision Date, in which Mr. Mark Yang was formally appointed as the Sole Panelist and the projected Decision Date was indicated as August 19, 2002.

The Sole Panelist is satisfied with the Centerís assessment that it verified the Complaintís compliance with the relevant requirements of the Rules, Supplemental Rules and Policy, and that this Administrative Panel (hereinafter, "Panel") was properly constituted and appointed in accordance therewith.

The Panel has not received any requests regarding further submissions, waivers or extensions of deadlines, and the Panel has not found it necessary to request any further information from the parties (taking note of the Respondentís default in responding to the Complaint).

Having reviewed the communication records in the case file provided by the Center, the Panel finds that the Center has discharged its responsibility under the Rules, paragraph 2(a), "to employ reasonably available means calculated to achieve actual notice to Respondent". Therefore, the Panel shall issue its decision based upon the Complaint, the Policy, the Rules and the Supplemental Rules and without the benefit of the Respondentís response.

 

4. Factual Background

In the Complaint (including the Annexes), the Complainant submitted evidence and contentions of various factual and legal conclusions based on such evidence.

Since the Respondent has not submitted any evidence and has not contested the contentions made by the Complainant, the Panel is left to render its decision on the basis of the uncontroverted contentions made, and the evidence supplied, by the Complainant. The Panelís position on some contentions is amplified below (in Discussion and Findings).

In the absence of any evidence to the contrary submitted by the Respondent, this Panel accepts much of (but not necessarily all) the submitted evidence and the contended for factual and legal conclusions as proven by such evidence, as set out in the Complaint. The Panel accepts enough to render its decision below.

 

5. Partiesí Contentions

A. The Complainant alleges that the first domain name <ktfmember.com> is identical or confusingly similar to the trademark and business names "KTF" and "KTF MEMBERS" in which it has rights; that the Respondent has no rights to or legitimate interest in the first domain name; and that the first domain name is registered and being used in bad faith by the Respondent. The Complainant requests the transfer to it of the first domain name.

B. The Complainant alleges that the second domain name <018eplaza.com> is identical or confusingly similar to the trademark "018 e-plaza" in which it has rights, that the Respondent has no rights to or legitimate interest in the second domain name, and that the second domain name is registered and being used in bad faith by the Respondent. The Complainant requests the transfer to it of the second domain name.

C. The Respondent has not filed a response to the Complaint, and is in default.

 

6. Discussion and Findings

One requirement of fundamental due process is that a Respondent has notice of proceedings that may substantially affect its rights. The Policy, Rules and Supplemental Rules establish procedures intended to assure that a Respondent is given adequate notice of proceedings commenced against it, and a reasonable opportunity to respond (see, e.g., Rules, paragraph 2(a)).

In this case, the Panel is satisfied that the Center took all steps reasonably necessary to notify the Respondent of the filing of the Complaint and initiation of these proceedings, and that the failure of the Respondent to furnish a response to the Complaint is not due to any omission by the Center. There is sufficient evidence, in the case file provided by the Center, for the Panel to conclude the Center discharged its obligations under Rules, paragraph 2(a) (see Procedural History, supra).

Where there is default, then under Rule 14(a), "the Panel shall proceed to a decision on the complaint", and under the Rule 14(b), "the Panel shall draw such inferences [from the default] as it considers appropriate". Furthermore, Rule 15(a) provides that a "Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems appropriate". Since the Respondent has not submitted any material and has not contested the contentions made by the Complainant, the Panel is left to render its decision on the basis of the uncontroverted contentions made, and the evidence supplied, by the Complainant.

As for Complainantís contentions 5A and 5B above, paragraph 4(a) of the Policy sets forth three elements to be established by a Complainant to merit a finding that a Respondent has engaged in abusive domain name registration, and to obtain relief. Each of the following three elements must be established by a Complainant:

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

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

(III) Respondentís domain name has been registered and is being used in bad faith.

Ia. The Respondentís first domain name is identical or confusingly similar to the trademarks "KTF" and "KTF MEMBERS" in which the Complainant has rights

Based on the uncontroverted evidence submitted by the Complainant and the facts and conclusions contended for, the Panel finds that the Complainant:

(a) holds registration no. 0062193 for the trademark "KTF" at the Korean Intellectual Property Office, issued on June 26, 2000 in association with the various communications and other services identified therein (hereinafter, "Communications Business"), and holds several pending applications for "KTF MEMBERS", filed on April 2, 2001 in association with various goods and services (hereinafter, also considered as part of "Communications Business");

(b) has extensively used its trademarks "KTF" and "KTF MEMBERS" in association with its Communications Business in Korea, and in particular, it is using it at its "www.ktf.members.com" website; and

(c) being the largest telecommunication company in Korea, it and its Communications Business commercialized with the trademarks "KTF" and "KTF MEMBERS", are well known in Korea.

The Panel finds that the Complainant has significant rights in its trademarks "KTF" and "KTF MEMBERS" in Korea.

The Panel finds that the spelling of "KTF MEMBERS" as "ktfmember" is of insufficient legal significance to distinguish the latter from the former in the marketplace context of the Internet. Furthermore, the Panel finds that "kftmember" suggests an association with "KTF" Communications Business, as being related to a customerís membership entitlement to KTF Communications Business.

Accordingly, the Panel finds that the first domain name is confusingly similar to the "KTF" and "KTF MEMBERS" trademarks in which the Complainant has rights.

Ib. The Respondentís second domain name is identical or confusingly similar to the trademark "018 E-Plaza", in which the Complainant has rights

Based on the uncontroverted evidence submitted by the Complainant and the facts and conclusions contended for (see Factual Background, above), the Panel finds that the Complainant (as successor-in-title of a corporate merger with a Korean telecommunication company, Hansol PCS, on May 3, 2001):

(a) holds many registrations for trademarks having the digits "018" at the Korean Intellectual Property Office, in association with the various Communications Business (also collectively identified as "Communications Business" herein)[2];

(b) has extensively used its trademark "018 E-Plaza" in association with its Communications Business in Korea , and in particular, used it at its "www.018e-plaza.com" Website, which automatically the visitor to its aforementioned website, "ww.ktfmembers.com"; and

(c) being the largest telecommunication company in Korea, it and its Communications Business commercialized with the trademark "018 E-Plaza" are well-known in Korea.

The Panel finds that the Complainant has significant rights in Korea in its trademark "018 E-Plaza".

The Panel finds that the spelling of trademark "018 E-Plaza" as "018eplaza" is of insufficient legal significance to distinguish the latter from the former in the marketplace context of the Internet.

Accordingly, the Panel finds that the second domain name is confusingly similar to the "018Eplaza" trademark in which the Complainant has rights.

II. Respondent has no rights or legitimate interests in respect of the first and second domain names

Respondent has submitted no evidence, generally, and none under paragraph 4(c) of the Policy in particular, to support a finding of it having any rights or legitimate interests in respect of the domain name. This is sufficient for the Panel to accept the Complainantís contentions.

Furthermore, based on the uncontroverted evidence submitted by the Complainant and the factual and legal conclusions contended for (see Factual Background, above), the Panel accepts much of (but not necessarily all) the evidence and contentions of factual and legal and conclusions set out in the Complaint. In particular, the Panel finds that at (a), (b) and (c) under Ia and Ib above, were likely very well known by the Respondent when it registered the first and second domain names (respectively on June 2, 2001, and June 8, 2001), and that makes it very difficult, even if it had submitted evidence, for it to show it had rights or legitimate interests therein.

Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the first and second domain names.

III. Respondentís first and second domain names have been registered and are being used in bad faith

Based on the uncontroverted evidence submitted by the Complainant and the factual and legal conclusions contended for, the Panel accepts in large measure much of (but not necessarily all) the evidence and contentions set out in the Complaint.

In particular, the first domain name was registered in bad faith because it was done with knowledge of the Complainantís significant rights in its "KTF" and "KTF MEMBERS" trademarks in association with Communications Business. Also in particular, the first domain name is being used in bad faith because, amongst other reasons, the use is to divert Internet traffic away from the Complainantís website to a pornographic site. Upon entering "www.ktfmember.com" into a browser, the visitor is immediately redirected to a pornographic website, all with a false association to the Complainant and its trademarks KTF and KTF MEMBERS.

In particular, the second domain name was registered in bad faith because it was done with knowledge of the significant rights in the "018 e-plaza" trademark of the Complainant (or its predecessor, Hansol PCS) in association with Communications Business. Also in particular, the domain name was being used in bad faith because, amongst other reasons, the use was to divert Internet traffic away from the Complainantís website to a pornographic one. Upon entering "www.018eplaza.com" into a browser, the visitor was immediately redirected to a pornographic site, all with a false association to the Complainant and its trademark " 018 e-plaza". It appears that that when the Complainant discontinued its "www.018eplaza.com" website (to save its customers from being automatically exposed to pornographic material), the Respondent discontinued use of its "www.018e-plaza.com" website. This shows the parasitic nature of the Respondentís modus operandi and its likely intentions if the Complainant were to re-start its "www.018eplaza.com" website. Finally, even if Respondent is not currently using the second domain name to host active web pages, its actions still would constitute registration and use in bad faith. Respondent must have expected that any use of the second domain name would cause harm to Complainant because it contains marks that are so "obviously indicative" of Complainantís services that Respondentís use of it would "inevitably lead to confusion of some sort." AT&T v. Fred Rice, WIPO Case No. D2000-1276 at para. 6 (November 25, 2000) ("Nobody registers domain names for no purpose. . . . [T]he Respondent either registered them in order to sell them to the Complainant hoping that the Complainant would offer a large sum of money for them or he registered them in order to use them to connect to an internet facility"); see also eBay Inc. v. Sunho Hong, WIPO Case No. D2000-1633 at para. 6 ("use of complainantís entire mark in infringing domain names makes it difficult to infer a legitimate use").

The Panel finds that the Respondentís first and second domain names have been registered and are being used in bad faith.

 

7. Decision

The Panel finds, within the meaning of paragraph 4(a) of the Policy, that the domain name <ktfmember.com> is confusingly similar to Complainantís trademarks "KTF" and "KTF MEMBERS" in which it has rights; that the Respondent has no rights or legitimate interests in respect of the first domain name; and that the first domain name has been registered and is being used in bad faith by the Respondent.

The Panel finds, within the meaning of paragraph 4(a) of the Policy, that the second domain name <018eplaza.com> is confusingly similar to Complainantís trademark "018 e-plaza" in which it has rights; that the Respondent has no rights or legitimate interests in respect of the second domain name; and that the second domain name has been registered and is being used in bad faith by the Respondent.

The Panel orders that the first domain name <ktfmember.com> and the second domain name <018eplaza.com> be transferred to the Complainant KT Freetel Co., Ltd.

 


 

Mark Yang
Sole Panelist

Dated: August 19, 2002

 


1. The Complaint indicates that the domain name <018eplaza.com> is registered to a Korean individual by the name of "fafdasfda" and that the domain name is registered to a Korean individual called "Young Chul Chang" and implicitly asks the Panel to decide that both are one and the same individual. The Complaint offers no argument to support that the two individuals are the same, except to identify the sole Respondent, at the beginning of the Complaint, as Young Chul Chang as "a/k/a fafdasfda". Although a more explicit statement with supporting argument, indicating that the two Korean individuals are one and the same or that the two complaints about the two domain names are justifiably combined in one Complaint because of the underlying, common facts, could have been helpfully made in the Complaint, the Panel is willing to accept that that the two individuals are the same, in view of: (a) the uncontroverted status of the Complainant's case (see below under "6. Discussion and Findings"), (b) the (to the Panel) apparently fictitious and almost evasive nature of the name "fafdasfda", (c) the fact that the Respondent Young Chul Chang and owner of the first domain name, and his address, are identical to the technical, administrative and billing contact and address, for the second domain name, and (d) the apparent connection between the subject domain names, trademarks and their respective businesses, including the corporate history of the Complainant that was the result of a merger with the company that registered <018e-plaza.com>, explained below, and set out in the uncontroverted case of the Complaint.
2. The significance of the digits "018" is explained in the Complaint as follows. In Korea, the first three digits of the mobile phone numbers represent particular mobile phone services, and there are five different mobile phone services, respectively having following first three digits: 011, 016, 017, 018, and 019. Of these five mobile phone services, Complainant exclusively offers two mobile telephone services having the digits 016 and 018. The 018 mobile communication service was acquired through a merger with Hansol PCS. Before the merger, Hansol PCS provided customer services with the trademark "018 E-Plaza" and acquired the domain name <018e-plaza.com> to establish a website for customers using 018 mobile telecommunication. After the merger, the surviving company, the Complainant, continued to provide 018 mobile telecommunication service to the former customers of Hansol PCS. However, Complainant arranged so this service would be included in the above-mentioned KTF Members service. In this regard, KTF arranged the website, "www.018e-plaza.com," to automatically forward all visitors of its website to "www.ktfmembers.com" to make sure that former customers of Hansol PCS who were accustomed to the name of "018 E-plaza" and to logging in through the domain name of <018e-plaza.com>, could easily be connected to the new KTF Members service as "www.ktf.com". Also, Annex 15 was stated in the Complaint to be a copy of the registration to Hansol PSC of the domain name <018e-plaza.com> but the Panel found in Annex 15 the registration of <018e-plaza.co.kr>. Because of the uncontroverted statements in the Complaint about the "www.018e-plaza.com" website of the Complainant, the Panel will assume the veracity of those statements and disregard what appears to be a clerical error in the assembly of the Complaint.