WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Corus Group plc. v. Johnson & Johnson
Case No. DBIZ2002-00070
1. The Parties
The Complainant is Corus Group plc. of 30 Millbank, London, SW1P 4WY, United Kingdom.
The Respondent is Johnson & Johnson, 1 Johnson & Johnson Plaza, NJ, 08933, United States of America.
2. The Domain Name and Registrar
The domain name upon which this Complaint is based is <corus.biz> ("Disputed Domain Name"). The registrar of the Disputed Domain Name as at the date of the Complaint is Virtual Internet of Elysium House, 126-128 New Kings Road, London, SW6 4LZ, United Kingdom ("Registrar").
3. Procedural History
The Complaint was submitted for decision in accordance with the Start-up Trademark Opposition Policy ("STOP") for .BIZ, adopted by NeuLevel, Inc. and approved by Internet Corporation for Assigned Names and Numbers ("ICANN") on May 11, 2001, in accordance with the Rules for Start-up Trademark Opposition Policy for .BIZ, adopted by NeuLevel, Inc. and approved by ICANN on May 11, 2001 ("STOP Rules"), and the WIPO Supplemental Rules for Start-up Trademark Opposition Policy for .BIZ ("WIPO Supplemental STOP Rules").
The Complaint was received by the WIPO Arbitration and Mediation Center ("the Center") via email on April 26, 2002, and in hardcopy on April 30, 2002. The fees prescribed under the STOP Rules and the WIPO Supplemental STOP rules and the STOP Schedule of Fees have been paid by the Complainant.
The Registrar advised the Center that the language of the agreement between the Respondent and the Registrar for the registration of the Disputed Domain Name ("Registration Agreement") is English. The Panel has not seen a copy of the Registration Agreement and has proceeded on the unrebutted assertion of the Complainant that the Registration Agreement incorporates the STOP and the presumption that it is has been duly assented to by the Respondent.
The Center sent the Notification of STOP Complaint and Commencement of Administrative Proceeding (including the domain name registrant, administrative contact, technical contact, zone contact and billing contact, as required by Paragraph 2(a) of the STOP Rules) on May 29, 2002, to the Respondent via email (without attachments) and on May 29, 2002, by post/courier (with enclosures), and to the Complainant via email with attachments. The Center sent a copy of the Complaint (without attachments) on May 29, 2002, via email, to the ICANN and the Registrar.
The Respondent failed to file a response in the time allowed and has not filed a response subsequently as far as the panel is aware.
A notification of Respondent Default was sent by the Center to the Respondent and the Complainant via email on June 19, 2002. This notified the Respondent that it had failed to comply with the relevant deadline for the submission of its response in the domain name dispute.
Pursuant to Paragraph 6(c) of the STOP Rules, the Center notified the Complainant and the Respondent on July 5, 2002, via email of the appointment of the Administrative Panel and that, pursuant to Paragraph 7 of the STOP Rules, the Panelist had submitted a Statement of Acceptance and Declaration of Impartiality and Independence to the Center.
The Center sent a Transmission of Case File to the Panel by email on July 6, 2002. The documentation was received in hard copy by the Panel in Sydney, Australia on July 9, 2002.
In accordance with Paragraph 4(a) of the STOP Rules, the Center has verified that the Complaint satisfies the formal requirements of the STOP, the STOP Rules and the WIPO Supplemental STOP Rules. The Panel has reviewed the Complaint and is satisfied with the Centerís assessment that the Complaint satisfies the formal requirements of the STOP, the STOP Rules and the WIPO Supplemental STOP Rules.
All other procedural requirements appear to have been satisfied.
4. Factual Background
Activities of the Complainant
The Complainant does not assert any information about itself in the Complaint. However, the Complainant does annex to the Complaint, in support of its assertion that it is a well known company using "Corus" as a trademark, various publications apparently authorized by the Complainant that assert the Complainant is a multi-national business involved in, amongst other things, the manufacture and supply of aluminium and steel products and the provision of consulting services to the metals industry.
The Panel has undertaken a search (as authorised by Paragraph 10 of the STOP Rules) of the website used by the Complainant Ė "www.corusgroup.com". The search undertaken by the Panel supports the assertions made by the Complainant in the publications referred to above.
The Complainantís trademarks
The following information is asserted as fact in the Complaint and remains uncontested.
The Complainant states that it has rights for the mark "Corus" in several countries including the United Kingdom where it has rights in the registered trademark number 2210115A for "CORUS", registered on July 6, 2001. The Complainant annexed the results from a search conducted on a database at the website of The Patents Office, United Kingdom on April 25, 2002, that states the Complainant is the registered proprietor of trademark number 2210115A for "CORUS".
The Complainantís Use of trademarks
Annexed to the Complaint are various publications and media extracts which contain references to, or information about, the Complainant, which is referred to as "Corus".
Activities of the Respondent
No response to the Complaint has been filed.
No information as to the activities of the Respondent is asserted in the Complaint.
The Complainantís contentions in the Complaint
The Complainant asserts that each of the elements specified in Paragraph 4(a) of the STOP have been satisfied.
The Complainant asserts that it is has rights to the mark "Corus", including being the registered proprietor in the United Kingdom of the registered trademark number 2210115A for "CORUS"
The Complainant asserts that, to the best of its knowledge, the Respondent does not have rights to "CORUS"
The Complainant asserts that, to the best of its knowledge, the Respondent does not have a legitimate interest in respect of the Disputed Domain Name because "the Respondent does not use corus in connection with [an] offering of goods or services. The Respondent and his businesses are not known under the name corus." The Complainant asserts that it is a well known company using "CORUS" as a trademark and a tradename, that "CORUS" is frequently in the news all over the world and that "it is thus very unlikely that the Respondent would not know of the Complainantís rights".
The Complainant asserts that the Respondent knew of the Complainantís rights and nevertheless proceeded with its application to register the Disputed Domain Name, thus making it "impossible for the Complainant to register its trademark CORUS in the <.biz> domain".
5. Discussion and Panel Findings
This section is structured by reference to the elements required by Paragraph 4(a) of the STOP. In order to be successful, the Complainant has the burden of proving, on the balance of probabilities, that all three elements are present.
Domain name identical to a trademark or service mark in which the Complainant has rights
The Disputed Domain Name is <corus.biz>. The Complainant owns registration in the United Kingdom of the trademark "CORUS" (registration number 2210115A). The Complainant asserts that it also has rights in the mark "CORUS" in other countries.
The Panel finds that the Disputed Domain Name is identical to a trademark or service mark in which the Complainant has rights and, accordingly, that the Complainant has proven Paragraph 4(a)(i) of the STOP.
No rights or legitimate interests in respect of the domain name
The Complainant asserts that, to the best of its knowledge, the Respondent does not have a legitimate interest in respect of the Disputed Domain Name because the Respondent does not use "corus" in connection with an offering of goods or services and because the Respondent and its businesses are not known under the name "corus". The Respondent has not rebutted this assertion, but the onus is on the Complainant to provide evidence to support its assertion.
The Panel finds no evidence that the Respondent is the owner or beneficiary of a trade or service mark that is identical to the Disputed Domain Name.
Despite the fact that the Panel has found evidence by conducting a search for Ďcorusí on the Respondentís website "www.jnj.com" that some email addresses used by the Respondent have the suffix "corus.jnj.com", the Panel has neither been presented with, nor found, evidence that the Respondent is, or was, commonly known by the Disputed Domain Name. The Panel can speculate that perhaps in context the character string Ďcorusí represents the corporate division of the Respondent in USA, but that is hardly the basis for a finding and certainly in light of the Respondentís failure to respond to the Complaint at all the Panel is disinclined to give it the benefit of any assumption in that regard. Indeed the Panel notes the general undesirability of respondents ignoring administrative proceedings. If the Respondent no longer wishes to hold the name a Response conceding the matter would have been helpful, and certainly a respondent of the stature of the Respondent in this proceeding could have been expected to respond in some fashion if it did not want the Panel to draw adverse inferences from its failure to do so. In this case the Panel has not needed to draw any inferences - the Complainant has adduced enough circumstantial evidence to make good its assertion absent any Response.
The Panel finds that, on the balance of probabilities, the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name and accordingly the Panel finds that the Complainant has proven Paragraph 4(a)(ii) of the STOP.
Domain name was registered or is being used in bad faith
The Complainant asserts that the Respondent would have known of the Complainantís interest in the mark "Corus" at the time it registered the Disputed Domain Name and known that, after registration of the Disputed Domain Name by the Respondent, it would be "impossible for the Complainant to register its trademark CORUS in the <.biz> domain". The Panel would be slow to ascribe bad faith behaviour to a corporation of the Respondentís stature, despite its surprising failure to file a Response. The Panel has never heard of the Complainant and cannot assume that the Respondent ought to have heard of the Complainant.
In this matter the Complainant has not tendered any evidence at all to support a finding that any element in Paragraph 4(b) of STOP is made out, or a finding that the Disputed Domain Name was registered or is being used in bad faith. There is no evidence before the Panel that the Complainant and Respondent are operating in similar markets nor any evidence of any mala fides by the Respondent towards the Complainant.
Although the Panel has found only the barest evidence of Ďuseí by the Respondent of the Disputed Domain Name as part of a sub domain to <jnj.com> in an email context, this, by itself, does not prove that the Disputed Domain Name was registered or is being used in bad faith. Nor does the fact (if it had been proven, which it has not) that the Respondent may have known that the Complainant would be unable to register the Disputed Domain Name if it was registered by the Respondent lead to a finding without more that the Respondent registered or is using the Disputed Domain Name in bad faith.
Whilst the Panel might be surprised that the Respondent did not tender a Response to the Complaint or that the Complainant did not provide evidence that it attempted to contact the Respondent to ask the Respondent why it registered the Disputed Domain Name, it is for the Complainant to prove, on the balance of probabilities, the existence of each of the elements of Paragraph 4(a) of the STOP.
In this matter the Complainant has failed to discharge its burden of proving that the Respondent registered or is using the Disputed Domain Name in bad faith and therefore the Panel finds that Paragraph 4(a)(iii) of STOP has not been made out.
The Complainant having failed to prove the requirements of Paragraph 4(a)(iii) of the STOP, the Panel dismisses the Complaint. In accordance with Paragraph 4(l) and Rule 15(e)(iii), the Panel dismisses the Complaint and rules that subsequent challenges under STOP against the Disputed Domain Name are permitted. However, such challenges under STOP may not be brought by, or on behalf of, the Complainant.
Philip N. Argy
Dated: July 16, 2002