WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Elisa Communications Corporation v. Domain Admin
Case No. DBIZ2002-00009
1. The Parties
The Complainant is Elisa Communications Corporation, a corporation organized under the laws of Finland, having its principal place of business in Elisa, Finland, and represented by Riku Hakkarainen ("Complainant").
The Respondent is Domain Admin, a company organized under the laws of the Republic of Korea, having its principal place of business at Seoul, Republic of Korea ("Respondent").
2. The Domain Name and Registrar
The domain name at issue is <elisa.biz>.
The Registrar is Tucows Inc., located at 96 Mowat Avenue, Toronto, Ontario, M6K3M1 Canada ("the Registrar").
3. Procedural History
The Complaint was submitted for decision in accordance with the Start-up Trademark Opposition Policy for .biz (the "STOP"), the Rules for Start-up Trademark Opposition Policy for .biz (the "STOP Rules"), adopted by NeuLevel Inc. and approved by the Internet Corporation for Assigned Names and Numbers ("ICANN") on May 11, 2001, and the WIPO Supplemental Rules for Start-up Trademark Opposition Policy for .biz (the "WIPO Supplemental STOP Rules").
The Complaint was received by e-mail by the WIPO Arbitration and Mediation Center (the "WIPO Center") on April 12, 2002. On April 16, 2002, the Center sent an Acknowledgement of Receipt of Complaint to Complainant.
On April 17, 2002, the WIPO Center sent per e-mail to Complainant a Request for Amendment to the Complaint.
On April 23, 2002, the WIPO Center received an Amended Complaint dated April 19, 2002, submitted by Complainant. The Amended Complaint was submitted by e-mail of April 24, 2002.
On April 27, 2002, the WIPO Center sent a Notification of the STOP Complaint and Commencement of Administrative Proceedings to Respondent, setting a deadline of May 19, 2002, by which Respondent submit a response to the Complaint.
On May 24, 2002, the WIPO Center sent a Notice of Default to Respondent.
On June 12, 2002, the WIPO Center sent a Notification of Appointment of Administrative Panel and Projected Decision Date by e-mail to parties, in which Wolter Wefers Bettink was appointed as Sole Panelist.
4. Factual Background
The Complainant has filed an intellectual property claim ("IP Claim") pursuant to the instructions and the format provided by NeuLevel.
On March 27, 2002, Respondent registered the domain name <elisa.biz>.
After this registration, NeuLevel notified Complainant that Respondent had registered the domain name <elisa.biz> and informed Complainant that it was entitled to commence a STOP proceeding against Respondent. On April 12, 2002, Complainant filed a STOP Complaint pursuant to the Start-up Trademark Opposition Policy.
5. Partiesí Contentions
The trademark ELISA has been used by Complainant since 1988 and has been registered at the Finnish National Board of Patents and Registration under no. 101324 since April 20, 1988, for telecommunications (class 38).
The Complainant has registered the domain names <elisa.com>, <elisa.net>, <elisa.org>, <elisa.info> and <elisa.fi>.
The domain name <elisa.biz> is identical to Complainantís trademark ELISA.
The Respondent has no rights or legitimate interests in the domain name <elisa.biz>. The domain name at issue was registered to prevent Complainant from reflecting the mark in a corresponding domain name. The Respondent is not commonly known by the name Elisa, nor has any trademark rights in ELISA.
The domain name is being used in bad faith, because Respondent does not have a right or legitimate interest to the domain name in question.
As Respondent has not submitted a Response to the WIPO Center, Complainantís contentions are uncontested.
6. Due Process
Where, as in this case, a Respondent does not submit a Response and the file does not contain any communication from Respondent, the rules of due process require the Panel to verify, to the extent possible, that Respondent is aware of the present proceedings. The Panel is satisfied, on the basis of the file documents, that this is the case.
A hard copy of the Complaint was sent by the Center to Respondentís postal address by courier and electronically to his e-mail address. The WIPO Center has therefore discharged its responsibility under Paragraph 4(a) of the STOP Rules to notify Respondent of the Complaint.
The Panel therefore assumes that Respondent has received these documents, but has chosen not to respond.
7. Discussion and Findings
Under the STOP, a Complaint can only be filed by an "IP claimant" who had filed an IP claim for a particular alpha-numeric string. If that string becomes registered as a .biz domain name, NeuLevel notifies the IP claimant and invites it to initiate a STOP proceeding within 20 days. The service provider (in this case the WIPO Center) is required to advise the Panelist if a disputed domain name is subject to more than one claim. In the present case, no such advice has been given to the Panelist.
Under STOP, Complainant must show:
(a) that the domain name is identical to Complainantís trademark or service mark (Paragraph 4a(i));
(b) that Respondent has no rights or legitimate interests in the domain name (Paragraph 4a(ii));
(c) that the domain name was either registered or used in bad faith (Paragraph 4a(iii)).
The Respondent may demonstrate a right or legitimate interest in a domain name. Circumstances similar to those under the Uniform Domain Name Dispute Resolution Policy of ICANN (the UDRP) can be invoked by a Respondent to demonstrate rights or legitimate interests. Similarly, the instances of bad faith registration and use exemplified in the UDRP can be invoked by a Complainant. However, because STOP and STOP Rules come into play shortly after registration of a domain name, and in view of the fact that it is sufficient that Complainant provides evidence of bad faith registration (and not also of bad faith use) of the domain name the focus of attention will be on bad faith at the time of registration.
(a) Trademark rights
The Complainant has registered the trademark ELISA in Finland under registration number 101324. The pertinent portion of the domain name <elisa.biz> is identical to Complainantís trademark ELISA.
(b) Legitimate interests
The Complainant has stated that Respondent has no rights or legitimate interest in respect of the domain name <elisa.biz>. However, Complainant has failed to provide evidence of this contention. The Complainant has merely stated that Respondent has no trademark rights for ELISA, and that Respondent is not commonly known by that name, but has not provided any documentation to support this claim. The Panel therefore concludes that Complainant has not established proof of the second criterion of Paragraph 4 (a) (ii).
(c) Bad faith
As to bad faith, Complainant has presented no meritorious argument and submitted no evidence in support of its contention that Respondent has registered the domain name in question in order to prevent Complainant to register the domain name. The Complainant has failed to come forward with evidence to explain why a company of the Republic of Korea should have intended to target a Finnish company, which is presenting itself on the Internet in the Finnish language.
There is no evidence that Complainantís trademark is well-known within, let alone outside Finland. In this context the Panel notes furthermore that "Elisa" is a (fairly common) name for a girl, both in English and in Spanish speaking countries
Moreover, Complainant has failed to provide any other evidence, which may indicate bad faith on Respondent's side.
On the basis of the foregoing, the Panel decides that the Complaint should be denied.
Wolter Wefers Bettink
Dated: June 26, 2002