WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
L’Oreal S.A. v. MUNHYUNJA
Case No. D2003-0585
1. The Parties
The Complainant is L'Oreal S.A., of Clichy Cedex, France, represented by Cabinet Iteanu & Associes, France.
The Respondent is MUNHYUNJA, of Seoul, Republic of Korea.
2. The Domain Name and Registrar
The disputed domain name <shuuemura.com> is registered with Korea Information Certificate Authority Inc. d/b/a DomainCa.com (KICA).
3. Procedural History
The Complaint was first filed by email with the WIPO Arbitration and Mediation Center (the "Center") on July 25, 2003. On July 29, 2003, the Center transmitted by email to A Technology Company dba namesystem.com ("A Technology Company") a request for registrar verification in connection with the domain name at issue. On August 8, 2003, the registrar, A Technology Company, replied that it was not the registrar of the domain name at issue and provided information on the relevant registrar, Korea Information Certificate Authority Inc. d/b/a DomainCa.com.
On August 13, 2003, the Center transmitted by email to Korea Information Certificate Authority Inc. d/b/a DomainCa.com ("KICA") a request for registrar verification in connection with the domain name at issue. On the same day, KICA transmitted by email to the Center its verification response indicating that jeon, sangkwon was the registrant, however at the same time it confirmed that the Respondent, MUNHYUNJA, is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. KICA noted in its response that it had not received a copy of the Complaint. On August 13, 2003, the Center asked for clarification of KICA’s response and information concerning the registrant of the domain name in issue. On August 14, 2003, KICA acknowledged that it had made a mistake and the registrant was the Respondent and not jeon, sangkwon. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on September 3, 2003. 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"), 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 September 16, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was October 6, 2003. Except for an e-mail of September 16, 2003, asking for the use of Korean, the Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 7, 2003.
The Center appointed Frank R. Schoneveld as the sole panelist in this matter on November 6, 2003. 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
A significant aspect of this proceeding arises from the transfer of the domain name in the time between the filing of the original Complaint on July 25, 2003, and filing of the amended Complaint on September 3, 2003, and the conduct of the Respondent during that period and in the period after commencement of this proceeding.
(a) Communications with the Registrant and Jeon Sangkwon
There were only three communications from the Respondent/Jeon Sangkwon. These were:
- An email which stated [sic]:
"I don't know English well. Please in korean. thanks."
This email was received by the Center on September 16, 2003, and was sent from the Respondent's email address.
- An e-mail from Jeon Sangkwon received by the Complainant on October 24, 2003, and sent from jeon sangwon's email address. This email stated [sic]:
I want to negoheite for the domain name.
Purchase this domain or dispute through UDRP after paid at least $3,000.
You may win for a disputes through UDRP, and i will dispute by ICANN policy (registrar jurisdiction) in Korea again.
If so, the fee is at least $8,000-$15,000.
Do you want to purchase $3,000+$8000 hardly or $1,850 cheaply?
Let me know.
- An email from Jeon Sangkwon received by the Center November 2, 2003 and sent from jeon sangwon's email address. This email was in response to an email from the Complainant to the Center alleging that [sic] – "Jeon sangkwon is blackmailing. Please find herewith this e-mail prooving that the domain name ‘shuuemuera.com’ was registered and transferred in bad faith." The email in response from Jeon Sangkwon stated [sic]:
I’ll explain with below.
In fact Ago, We had registered the domain name. And we had sold to our client named MUNHYUNJA the sold price is $???. We’re domain registration agency named WhOIS.
Subsequently, the domain name have was disputed and We notified to Munhyunja and she did not want to negiheite with accuser. The negoheite cost is just our expectings and our client(munhyunja) have not been mentioned that if accuser not want to negoheite, she’ll dispute in korea again indicated the UDRplaw continuly.
We want to negoheite with our client without many wastes.
So, would you please know to us , want to negoheite or not.
(b) Registry Information
Jeon Sangkwon’s registered contact details when the domain name was registered in his name with the previous Canadian Registrar, A Technology Company, were provided by the Complainant when first submitting its Complaint against Jong Sangkwon.
The Complainant provides evidence that there is no postcode in Seoul corresponding to the postcode provided and that in respect of the contact telephone numbers provided, although the country code for Korea is correct, the number of the area code for Seoul is not correct.
The Complainant also provides a copy of the registration agreement with the previous registrar, A Technology Company.
By emails of August 13 and 14, 2003, the current Registrar, KICA, stated that the Respondent’s technical, administrative and billing contacts with the current Registrar in Korea, KICA, are:
MUHYUNJA of Seoul, Republic of Korea
In response to the Center’s request for information addressed to the current Registrar KICA, in KICA’s email to the Center of August 13, 2003, the following statements were made [sic]:
"Current registrant is our customer. He domain name "shuuemura.com" have ben transferred to us by current registrant.
Current registrant is Mr. Jeon, sangkwo."
In the same email of August 13, 2003, in response to the Center’s question asking for contact details of the registrant of the domain name, and available in KICA’s WHOIS database, the KICA says:
"Please refer following whois information of realracingclub.com.
Domain Name: SHUUEMURA.COM.
Domain Status: DISPUTE
Registrar: Korea Information Certificate Authority, Inc.dba DomainCA.com
Referral URL: http://DomainCA.com
KICA also provides the Billing, Technical and Administrative contacts which are the same as appears above.
In response to further inquiries by the Center asking the registrar KICA for clarification as to why it referred to <realracingclub.com> and not the disputed domain name when providing information on the current registrant, it is stated by KICA in an email to the Center of August 14, 2003, the following [sic]:
"It’s our mistake.
Mr jeon, sangkwon and Mrs. Mun, hynja use same e-mail address
Current registrant is Mrs. Mun, hynja."
The remainder of the contact information for the registrant with KICA, provided in KICA’s email to the Center of August 14, 2003, was the same as that set out above for MUNHUNJA.
5. Parties’ Contentions
The Complainant makes the following substantive submissions:
"The domain name <shhemura.com> is identical and confusingly similar to the trade mark "SHU UEMURA" of the Complainant as all the letters of the trademark are identical to the domain name except for the stylized space which cannot be part of a domain name".
"Respondent has no bona fide offering of goods or services under the name "SHU UEMURA".
"The disputed domain name is not the corporate name of the Respondent, nor it is a trademark registered by the Respondent, nor it is used by Respondent in a commercial or non commercial manner. The Respondent isn’t commonly known under le name SHU UEMURA".
"Jean, sangkwon is a cybersquatter known by WIPO. He has registered other domain names, in similar circumstances, corresponding to well known trademarks (PRADA, BENETTON, GIANFRANCEO FERRE). After an administrative procedure was conducted, the transfer of such names was ordered. The following lists proceedings against the Respondent under the Policy, each of which included a finding of bad faith:
- Prada S.A., v. (Sangkwon Jeon), WIPO Case No. D2002-0113,
- Benetton Group S.p.A. v. Sangkwon Jeon, WIPO Case No. D2002-0586
- GIANFRANCO FERRÉ S.p.A. v. Sang-Kwon Jeon, WIPO Case No. D2002-0730
- Mandarin Oriental Services B.V. v. My Information Centre Sdn Bhd, WIPO Case No.D2001-0161
Jean, sangkwon domainkiller, the first registrant of the domain name, indicated as contact information that the contacts for the entity ‘owner’ residing at Domainkiller, in Seoul, 00000. The zip code is false. In Seoul, zip code contain 6 numbers, with a"-" between the 4th and the 3rd number. Thus 00000 is a false zip code.
The telephone and fax information he has indicated are not accurate. In particular, the area code for Seoul is ‘2’ and not ‘11’. Additionally, the phone number itself does not give any dial tone. The information about the registrant indicated ‘domainkiller’."
"The first complaint against "jeon sangkwon domainkiller" (Annex [K]) was filed on 2003-29-07 by mail (Annex [O]). "jeon sangkwon domainkiller" was informed by mail of the Complaint introduced concerning the domain name shuuemura.com: Annex [P]. The Complaints and its Exhibits were sent by DHL to WIPO, to the Registrar and to "jeon sangkwon domainkiller".
In the following days, apparently on August 13, 2003, then after the notification of the Complaint, the domain name shuuemura.com has been transferred to a new registrant and a new registrar. The transfer was done despite the notification of the first Complaint. It appears that it’s a fraudulent transfer. The domain name subject of the Complaint does not currently resolve to an active website [Annex I]."
"The Complainant requests the Administrative Panel appointed in this administrative proceeding issue a decision that <shuuemura.com> be transferred to the Complainant."
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Transfer of Domain Name During A Pending Administrative Proceeding
The Complainant filed its original complaint with the Center by email on July 25, 2003, and on July 29, 2003, lodged a hard copy by courier. Also, on July 29, 2003, the Complainant sent by email and by courier, copies of the complaint to the then registrant "jeon, sangkwon". A print out provided by the Complainant of information held on the website of the then Registrar, A Telecommunications Company, shows that on July 23, 2003, jeon, sangkwon was still the registrant of the disputed domain name and A Telecommunications Company was still the Registrar. However, within 15 days, by August 8, 2003, when A Telecommunications Company replied to standard questions from the Center, both the Registrar and the registrant had changed, respectively to, Korea Information Certificate Authority, Inc dba Domain CA.com ("KICA") and MUNHYUNJA. The timing of this transfer of registration of the domain name is a considerable coincidence which, together with the other findings of this Panel, gives rise to the conclusion that the transfer occurred after the then registrant had notice of a pending administrative proceeding pursuant to the Policy.
Based on the above factual background, it is apparent that:
- Jong Sangkwon and MUNHYUNJA use the same email address and the request to use Korean in the email to the Center of September 16, 2003, comes from this address without any indication of from whom the email came.
- In KICA’s email to the Center of August 13, 2003, Jong Sangkwon is named as the current Registrant.
- Jong Sangkwon in his email to the Complainant of October 23, 2003, says "I want to negoheite for the domain name" And "You may win for a disputes through UDRP, and i will dispute by ICANN policy (registrar jurisdiction) in Korea again."
The repeated use of "I" in this last mentioned email shows that Jong Sangkwon was negotiating for himself or that Jong Sangkwon and MUNHYUNJA are one and the same. The later explanation that he was acting for his client MUNHYUNJA is not plausible. If acting for a different person, namely the Respondent MUNHYUNJA, it would be normal to have said this somewhere in his first email. Any person offering the domain name for sale to the Complainant would not be credible unless it could be shown (or at least stated) that he had received some power from the Registrant to do so. Either that or he was in fact the registrant, or the Respondent and Jong Sangkwon were acting in concert.
These circumstances lead to the conclusion and the Panel finds, that MUNHYUNJA and Jong Sangkwon are one and the same person or are acting in concert and the conduct of one of them can be attributed to the other for the purposes of this proceeding.
The transfer from the previous registrar to the current Registrar, KICA, would have occurred in the period sometime between July 23, and August 8, 2003, and in all likelihood shortly after jeon, sangwon/MUNHYUNJA was notified of the original Complaint on July 29, 2003. In the e-mail of October 24, 2003, MUNHYUNJA/ jeon, sangkwon attempted to sell the domain name to the Complainant for at least $1850. Further, in the same e-mail MUNHYUNJA/jeon, sangkwon, threatened to frustrate this proceeding and the Complainant by indicating he would force the Complainant to commence another administrative proceeding because of the transfer of registration in another name to a new Registrar, thereby also obliging the Complainant to incur further legal, translation and other costs of another proceeding in another language.
In light of the above finding on the identity and attributes of the Respondent, and taking into account the above evidence, the Panel finds that the Respondent deliberately tried to disrupt this proceeding by transferring the domain name to another registrar and into the name of another registrant, after having notice of the original complaint, and during a pending administrative proceeding within the meaning of Paragraphs 8(a) and 8(b) of the Policy. The Panel finds that the Respondent did so in order to frustrate the Complainant to the greatest extent possible by increasing the costs, time and inconvenience in protecting its’ trademark and service mark rights and legitimate interests.
The conduct of the Respondent has been referred to by other Panels as "cyberflying" and they have taken a very robust view of it. The UDRP Panel in BBC v. Data Art Corp./Stoneybrook, WIPO Case No. D2000-0683 held that where a transferee was associated with the Respondent and this transferee/Respondent had knowledge of the Complaint before the transfer took place, then neither the change of registrant nor of registrar affected the proceeding. The Panel in that proceeding directed the new registrar to transfer the domain name to the Complainant. The Panel said:
"To interpret section 8(a) of the Policy in such a way as to permit transfers of registration after notice of the complaint to the respondent but before official commencement of the proceedings by way of notification from the provider would not do justice to complainants who have initiated complaints in accordance with the Policy and the Rules. Moreover, such an interpretation would appear to permit, if not encourage the phenomenon of cyberflying, where a registrant of a domain name dispute case, systematically transfers the domain name to a different registrant to disrupt the proceeding".
This paragraph was sited with approval by the majority of the Panel in Gloria-Werke H. Schulte-Frankenfeld GmbH & Co v. Internet Development Corporation and Gloria MacKenzie, WIPO Case No. D2002-0056.
It is noted that Paragraph 8 of the Rules refers to a transfer "during a pending administrative proceeding". The Oxford Paperback Dictionary (Oxford University Press 1983) defines "pending" when used as an adjective as "1. waiting to be decided or settled. 2. about to come into existence". Hence the expression "during a pending administrative proceeding" can mean both (1) the period while waiting for the Panel to make a decision, which is the period after formal commencement of a proceeding but before the Panel has made its’ decision, and (2) the period when the proceeding is about to formally come into existence, which includes the period after first filing of a complaint but before the proceeding has formally commenced.
Paragraph 1 of the Policy provides that an administrative proceeding such as the present one "….will be conducted according to the Rules for Uniform Domain Name Dispute Resolution Policy (the ‘Rules of Procedure’)….". Paragraph 4(c) of the Rules indicate that a proceeding is not formally commenced (i.e. has not come into existence) until the Provider completes its responsibilities in connection with forwarding the complaint to the Respondent. Although the "commencement" of the proceeding occurs on the date the Provider (in this case WIPO) completes its responsibilities in connection with forwarding the complaint to the Respondent, the proceeding can nevertheless also be "pending" before this date. A proceeding can be pending from the moment the complaint is first notified to a Provider. From the time of filing of a complaint, the proceeding is about to formally come into existence and will formally do so on the date of commencement when the Provider completes its responsibilities in connection with forwarding the Complaint to the Respondent. An administrative proceeding can thus be "pending" as soon as the complainant files the complaint and not necessarily only after the "commencement of the administrative proceeding" within the meaning of Paragraph 4(c) of the Rules.
B. Language of the Proceeding
The current Registrar, KICA, has confirmed that the Policy applies to the disputed Domain Name and that the registrant has agreed to this by acceptance of KICA’s Registration Agreement. The Complainant has provided evidence which shows that the previous registrant, Jeon Sangkwon, had agreed in the previous registration agreement with the previous Registrar, that the Policy would also apply to any dispute over registration and use of the disputed domain name.
It has been found that in violation of Paragraph 8(b) the Respondent has transferred the disputed Domain Name to another Registrar during a pending administrative proceeding. This transfer was from A Technology Company, a Canadian company, to KICA, a Korean company. In doing so, the registration agreement changed from English to Korean.
Paragraph 11 of the Rules provide that, "….subject to authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding…" the language of the proceeding shall be the language of the Registration Agreement.
The current Registration Agreement with KCIA is in Korean. Hence, in normal circumstances, this proceeding would be in Korean. It has already been seen however, that the circumstances surrounding this proceeding are far from normal.
The Respondent has requested that this administrative proceeding be in Korean. The Respondent requests, by email of September 18, 2003, [sic] "I don;t know English wll. Please in korean. thanks." As already stated, the Panel has found that the Respondent and jeon, sangkwon are one and the same person or are at least acting in concert so that the actions of one can be attributed to the other. The Panel has also found that the Respondent deliberately transferred registrars and registrant names in violation of Paragraphs 8(a) and 8(b) of the Policy, in order to disrupt this proceeding and to frustrate the Complainant to the greatest extent possible. The Respondent has also attempted to use the illegal transfer as a means of extorting a higher price for the domain name from the Complainant. This is done in the email from jeon, sangkwon to the Complainant of October 23, 2003.
Paragraph 10(b) of the Rules requires the Panel to ensure that the Parties to this proceeding "are treated with equality and that each Party is given a fair opportunity to present its case." The Respondent was prepared to accept an English language Registration Agreement with "A Technology Company" at the time this proceeding was pending and immediately prior to the transfer in violation of the Policy. The Respondent was also prepared to negotiate in English the sale of the domain name to the Complainant. In comparison, if proceedings were to be in Korean, the Complainant, after preparing its case in English, because of an illegal transfer, would now have to have translated into Korean, much of the material already submitted to the Panel in English. It would also, in all likelihood, require appointment of a new Panel as this Panelist cannot understand Korean. Alternatively it would involve translating any submissions of the Respondent into a language understood by the Panel.
Further, the Panel notes that Paragraph 8(b) of the Policy provides that a registrant may transfer the domain name to a new registrar during a dispute in a pending court action or arbitration, however, the dispute the subject of the court action or arbitration "shall remain subject to the domain name dispute policy of the registrar from which the domain name registration was transferred". Hence, if there was a court action or arbitration involving this domain name, the dispute policy of A Technology Company, the registrar from which the domain name was transferred, would apply.
The registration agreement with the previous registrar, A Technology Company, is in English and, at Clause 24, provides that any dispute under the registration agreement "shall be governed in all respects by and construed in accordance with the laws of the Province of Ontario, Canada, excluding its conflict of laws rules. Except for disputes concerning or arising from your [i.e. the registrant’s] use of a domain name registered with us, you and we each submit to exclusive subject matter jurisdiction, personal jurisdiction and venue of the Ontario Provincial Court." English is the language of proceedings in the Ontario Provincial Courts. Hence, in circumstances where the Respondent had transferred the domain name when a court action was pending, the Respondent has agreed that English would be the language used in the Court action. It seems then, that in the same circumstances as have arisen in this proceeding, the Respondent was prepared to accept the use of English in arbitration or court proceedings.
The Respondent has been notified with the Complaint and all email correspondence between the Center and the Complainant. The Respondent has had sufficient time to prepare any response the Respondent wished to make.
While it appears from the Respondent’s email correspondence, including that in the name of jeon, sangkwon, that the Respondent’s English may not be perfect, in this Panel’s view it was sufficient to enable the Respondent to present his/her case. In any event, given the threats in the email from jeon, sangkwon to the Complainant of October 23, 2003, it is apparent the real reason no response was made, was in the hope that this Panel would reject the Complaint and the Complainant would have to commence another proceeding.
Having taken into account the relative disadvantages to the Parties and to the proceeding of the use of Korean, and the exhortation in Paragraph 10 (c) that "The Panel shall ensure that the administrative proceeding takes place with due expedition." and having regard to all the circumstances set out above, the Panel decides that this administrative proceeding be in English.
C: Errors in Contact Details of Previous Registrant
While one mistake may be an oversight, to have two obvious errors can lead to the conclusion that the Respondent has deliberately supplied misleading information. Jong Sangkwon/MUNHYUNJA has used fictitious contact details in registration of the disputed domain name when it was registered with the Canadian Registrar, A Technology Company. He has used a non-existent postal code and has also supplied a telephone contact number, which clearly has too many numbers, and a telephone area code, which has no relation with the stated city’s area code. When these facts are combined with Jong Sangkwon’s/ MUNHYUNJA’s attempt to sell the domain name to the Complainant after its illegal transfer, and the threat to increase the cost and inconvenience for the Complainant to enforce its legitimate rights in respect of the domain name, the Panel concludes that the Respondent had deliberately provided false contact details when registrant of the disputed domain name with the previous registrar.
Turning now to the elements required to be proven by the Complainant. The Complainant is required by Paragraph 4(a) of the Policy to show three things:
- That the Complainant has rights in a trademark or service mark which is identical or confusingly similar to the domain name.
- The Respondent has no rights or legitimate interest in respect of the domain name.
- The domain name has been registered and is being used in bad faith.
D. Identical or Confusingly Similar
The Complainant has provided copies of certificates of registration of the trademark and service mark "SHU UEMURA" in Korea, the USA and the EU, and transfer of those rights to the Complainant in 2001 and early 2002. Complainant has provided evidence of holding trademark and service mark rights in "SHU UEMURA" in more than 30 other countries including Canada. The Complainant also provides copies of advertising material in various languages in the electronic and paper media, showing that its’ "SHU UEMURA" trademarks and service marks have been actively used by the complainant in at least Korea, Japan, the USA and Europe.
The registered mark is identical to the domain name in dispute except that there is a space between " SHU" and "UEMURA" in the registered mark and the addition of the technically necessary ".com " attachment. In the light of this evidence, the Panel finds that the Complainant has rights in trademarks and service marks around the world and that these marks are identical or at least confusingly similar to the disputed domain name.
E. Rights or Legitimate Interests
It will be remembered that the Panel has found that the Respondent MUNHYUNJA and Jong Sangkwon are one and the same person or are acting in concert, and the conduct of one of them can be attributed to the other for the purposes of this proceeding.
The Respondent had no existing website at the domain name address and there was none when the Complainant first filed its’ complaint on July 29, 2003, or when filing its’ amended complaint on September 3, 2003. The WHOIS database suggests that the Respondent has held the domain name in the name of Jong Sangkwon since March 22, 2003. The email of August 8, 2003, from A Technology Company shows that at least since August 8, 2003, the Respondent has held the domain name in the name of the Respondent. There is no evidence that the Respondent has ever made any preparations to use the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services. On the contrary, the only offering for sale was the offer by the Respondent to sell the domain name to the Complainant for at least $1850. These factors, together with the illegal transfer of the domain name to a new register and in a new name once the Respondent knew of the complaint, leads to the conclusion that the Respondent is using the domain name solely in order to sell it to, or prevent its use by, the Complainant, the legitimate holder of trademarks and service marks in "shu uemura", a mark equivalent to the substantive part of the domain name in dispute.
This Panel therefore finds that the Respondent has no right or legitimate interest in the domain name.
F. Registered and Used in Bad Faith
There are a number of factors, which show that the Respondent has registered and used the disputed domain name in bad faith. These include:
- The Respondent deliberately provided false contact details when the domain name was registered with the previous Registrar.
- The transfer of the domain name by the Respondent to a new Register and in a new name, after the Respondent had received notice of a Complaint and while an administrative proceeding was pending, is a clear violation of Paragraph 8 of the Policy. This conduct was designed to disrupt this administrative proceeding and to frustrate the Complainant. It was a bad faith transfer.
- The Respondent attempted to sell the domain name to the Complainant, who owns trademarks and service marks substantially equivalent to the domain name, for at least $1850. This is an amount which, in the absence of any contrary evidence, could not reasonably be considered as anything other than an amount in excess of the Respondent’s out-of-pocket costs directly related to the domain name.
- The Respondent threatens to put the Complainant to greater cost, time and inconvenience in protecting its trademark rights by obliging the Complainant to lodge another complaint and to submit to another proceeding in another language. There is the additional risk that the Respondent will again transfer the domain name to another Registrar while a new administrative proceeding is pending (i.e. further cyberflying).
The amended complaint provides information on four previous proceedings against the Respondent under the Policy, "each of which included a finding of bad faith". The Complainant appears to be arguing, without specifically stating it, that the Respondent has registered the domain name in order to prevent the Complainant from reflecting its trademarks and service marks in a corresponding domain name, and has engaged in a pattern of such conduct. It would however, be mere speculation on the part of this Panel to guess what the Complainant wanted to argue. The Panel declines to speculate on the Complainant’s purpose in providing this information. This Panel therefore, refuses to consider the four decisions mentioned by the Complainant and has considered this proceeding on its own merits and on the basis of evidence provided in this proceeding alone.
Other Panels have held that conduct indicating a deliberate concealment of the true identity of the Respondent through transfer of the domain name after becoming aware that proceedings are likely to be commenced, in order to delay the proceedings or commencement of proceedings, in itself constitutes bad faith. (See for example, AT&T Corp. v. W.N.A. & other aliases, WIPO Case No. D2001-1160).
The Panel in Wal-Mart Stores Inc. v. James Cann and Save Family Business Panel, WIPO Case No. D2000-0830, has held that a transfer of the domain name when a proceeding was pending, even if the registrar remained the same, if contrary to Paragraph 8(a) of the Policy, is a bad faith transfer. In that proceeding, even though the transferor and the transferee of the domain name were considered to be different persons, the Panel also found that where (a) "there is substantial reason to doubt that the second Respondent [the transferee] took the disputed domain name as part of a bona fide transaction" and (b) "there is no meaningful evidence on the record … that the [transferee] has a legitimate interest in the disputed domain name", this was sufficient to establish registration and use in bad faith.
In this proceeding there is equally, substantial reason to doubt the Respondent took the disputed domain name as part of a bona fide transaction. The Respondent took it in order to disrupt this proceeding and to frustrate the Complainant. Also in this proceeding, there is no meaningful evidence that the Respondent has a legitimate interest in the disputed domain name.
After taking into account all the factors mentioned above, the Panel finds that the Respondent has registered and used the domain name in bad faith.
For the reasons provided, and based on the Panel's findings made above, the Panel orders that <shuuemura.com>, the domain name the subject of this proceeding be transferred to the Complainant.
Frank R. Schoneveld
Dated: November 17, 2003