WIPO

 

WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Consumption Junction LLC v. Momm Amed Ia

Case No. D2002-0663

 

1. The Parties

The Complainant is Consumption Junction LLC, a Georgia Limited Liability Company, having an office at 1099 Hemphill Ave, Ste. B, Atlanta, GA 30318, United States of America.

The Respondent is Momm Amed Ia with an address at Kwangsan-gu, Myongdo-dong 13-1, Kwangju, 506-011, Republic of Korea.

 

2. The Domain Name and Registrar

The domain name is <comsumptionjunction.com>.

The Registrar is BulkRegistrar.com, Inc., with an office at 10 East Baltimore St., Ste. 1500, Baltimore, MD 21202, United States of America.

 

3. Procedural History

On July 17 and 22, 2002, a Complaint was filed in electronic form and in hard copy, respectively, by the Complainant with the WIPO Arbitration and Mediation Center (the "Center").

On July 17, 2002, the Center received from the Registrar, verification of certain key information, inter alia, that the domain name was registered with it, that it was registered to the Respondent.

More generally, 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 July 23, 2002, 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 August 12, 2002.

On August 13, 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.

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 September 2, 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 its domain name is identical or confusingly similar to the tradename or mark "Consumption Junction" in which it has rights; that the Respondent has no rights to or legitimate interest in the domain name; and that the domain name is registered and being used in bad faith by the Respondent. The Complainant requests the transfer of the domain name to it.

B. 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 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.

I. The Respondentís domain name is identical or confusingly similar to the trademark "Consumption Junction" 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) registered the domain name <consumptionjunction.com> on April 12, 1999;

(b) operates its website "www.consumptionjunction.com" that is among the 100 highest trafficked entertainment websites in the world with five million unique visitors every month; and

(c) has extensively used its trademark [1] "Consumption Junction" and, in particular, is using it at its website (for which it has paying advertisers) and on clothing it sells.

The Panel finds that the Complainant has significant rights in its trademark "Consumption Junction".

The Panel finds that the spelling of "consumption junction" as "comsumptionjunction" is of insufficient legal significance to distinguish the latter from the former in the marketplace context of the Internet.

Accordingly, the Panel finds that its domain name is confusingly similar to the "Consumption Junction" trademark in which the Complainant has rights.

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

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, the Panel accepts much of (but not necessarily all) the evidence and contentions of factual and legal conclusions set out in the Complaint. In particular, the Panel finds that at least one of (a), (b) and (c) under I above, was likely well known by the Respondent when it registered the domain name on July 30, 2000, 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 domain name.

III. Respondentís domain name has been registered and is 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, its domain name was registered in bad faith because it was done with knowledge of the Complainantís significant rights in its "Consumption Junction" trademark in association with its website. Also in particular, its 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 website. Upon entering "www.comsumptionjunction.com" into a browser, the visitor is immediately redirected to a pornographic website, all with a false association to the Complainant and its trademark "consumption junction".

The Panel finds that the Respondentís domain name has been registered and is being used in bad faith.

 

7. Decision

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

The Panel orders that its domain name <comsumptionjunction.com> be transferred to the Complainant Consumption Junction LLC.

 


 

Mark Yang
Sole Panelist

Dated: September 3, 2002

 


Footnote:

1. The Complaint does not contend for rights in "Consumption Junction" as a "trademark" or "service mark". Instead, it describes "Consumption Junction" as a "trade name" being a designation used to distinguish it from other businesses. The Panel assumes that the choice of terminology in the Complaint is deliberate (in avoiding "trademark" and "service mark"). The Panel is aware that there are technical legal differences between a "trademark" (in association with services) and a "trade name" in some legal jurisdictions. The Panel is aware that in some jurisdictions, a "trademark" in association with services is termed "service mark" whereas in some jurisdictions, the term "trademark" suffices for association with both goods and services. The Panel is aware that the Complaint (at paragraph 11A) refers to "mark" although it is not clear what the significance is, relative to its uses of "trade name" and "company name", all the while, avoiding the term "trademark" or "service mark". All of that said, the Panel concludes from the contentions of facts in the Complaint that the words "Consumption Junction" are being used by the Complainant as a trademark in association with the goods of clothing it sells and in association with the services of providing an electronic platform (i.e. its website) for paying advertisers, all at common law in the United States of America or in at least in some states thereof.

The Complaint (on page 5) states, "Öit can be demonstrated that the Complainant has rights or legitimate interests to the domain name since the Complainant has commonly been known by the domain name, even though no trademark or service rights have been acquired.". The Panel finds the last part of this statement ("Öeven thoughÖ") to be strange because it is counter to what the Complainant must prove to succeed in these proceedings. The Panel interprets this last part, in favor of the Complainant for the following reasons: (a) the tenor of the Complaint is that the Complainant has developed substantial rights in the words "Consumption Junction", at least at common law; (b) the Respondent has not responded to, let alone challenged, any portion of the Complaint and therefore (for the reasons outlined elsewhere), the Complaintís fundamental contention as satisfying the first element of paragraph 4(a) of the Policy, is accepted in large measure by the Panel; and (c) what was likely meant in the Complaint was, "Öeven though no registered trademark or trademark rights have been obtained by the Complainant.".