WIPO

 

DZⱸ

 

г

NBC Universal, Inc., Universal City Studios LLLP    Junak Kwon

ǹȣ: D2004-0764

Also Available in PDF: D2004-0764

 

1.

û: (1) NBC Universal, Inc., New York, NY, United States of America, (2) Universal City Studios LLLP, Universal City, CA, United States of America.

û 븮: Donovan & Yee, LLP, United States of America

ǽû: Junak Kwon, Ⱦ, ⵵, ѹα.

 

2. ̸ ϱ

̸ <nbcuniversal.com>̰, ﵵ̸ HANGANG Systems Inc. dba Doregi.com ϵǾ ִ.

 

3.

û ذû 2004 9 22 ڼ, 2004 9 23 Ϲݼ DZⱸ(WIPO) ( ͡ Ī) Ͽ ʹ 2004 9 22 ش Ͽ.

ʹ ذû 2004 9 22 ϱ ûϴ ̸ ߼Ͽ, ϱ 2004 9 23ڷ Ϳ 亯 ؼ (1) û 纻 Ͽٴ , (2) ﵵ̸ ϻ, (3) ǽû ̶ Ȯϰ, (4) ﵵ̸ ο ó ְ, (5) ϵ̸ذ() 밡ɼ Ȯϰ, (6) ﵵ ̸ Ȳ Ȯϰ, (7) ﵵ̸ Ͼ ѱ ۼǾ ְ, (8) ﵵ̸ Ͽ ߻ϴ £ Ͽ ΰ ϱ £ Ͽ ϱ ϴ ұǿ Ͽ Ȯ ־.

ϱ Ȯο ʹ 2004 9 30 û Ͼ ۼǾ ϸ鼭 ̸ ûο Ͽ. û ̿ Ͽ 2004 10 1 亯 Ͽ ǿ  䱸԰ ÿ 2004 10 5 ѱ û ڼ Ϲݼ Ϳ Ͽ.

ʹ 2004 10 20Ͽ ذû Ͽ  , Ģ(Ģ) ϵ̸ذ WIPOĢ(Ģ) θ Ͽ.

ʹ Ģ 2 (a) 4 (a)׿ 2004 10 20 ذû ذû Բ ڿ ǽûο ߼ϴ ÿ Ư޿ۼ Ͽ ǽûο ߼Ͽ. ׸ Ģ 5 (a)׿ ǽû 亯 ִ 2004 11 9 Ͽ, ѱ ǽû 亯 ʹ 2004 11 10 亯 Ȯ, Ͽ

3гα ǻ翡 , ʹ ذ гη Ȳ, Sir Ian Barker г Ͽ ³ 򼺰 Ͽ Ģ 7 2004 12 9 г ϰ Ͽ.

 

4. ǰ

National Broadcasting Company, Inc. NBC Ī θ ˷ ̵ θƮ μ 2004 5 11 Vivendi Universal Entertainment ȸ Universal City Studios LLLP ڻ պϿ û NBC Universal, Inc. ִ.

NBC Universal Inc. NBC ̸ ϴ ǥ ϰ ְ Universal City Studios LLLP 迡 Universal پ ǥ ϰ ǥ ̵ θƮ ־ ϰ ִ.

NBC  Universal պ ɼ ̸ dz 2003 6  ߼ պ ϱ New York Times, United Press International, Herald Tribune л縦 Ͽ Ǿ, Ư 2003 6 25Ͽ New York Times Ͽ, 2003 6 28Ͽ United Press International ټ л縦 Ͽ 迡 ִ.

ﵵ̸ 2003 6 29Ͽ ϵǾ.

 

5. ڵ

  A.  û

ǿ ־ û ִ:

-  ﵵ̸ û Ǹ ǥ ǥ ϰų ϴ.

-  ǽû ﵵ̸ ؼ  ̳ Ǹ .  Ư ǽû ϴ պ ϱ  쿡 ﵵ̸ չ ̳ Ǹ .

-  ﵵ̸ ǰ ִ.

  B.  û

ǽû û 忡 Ͽ ƹ 亯 ʾҴ.

 

6. Ǵ

Ģ 11 ڰ ǰ ų Ȥ Ͼ ޸ ʴ ,  Ͼ  ذ ϰ ̿ ÿ ذ Ͽ ﵵ̸ Ͼ ٸ  ִ гο οϰ ִ. 

ﵵ̸ Ͼ ѱ ۼǾ ڰ ذ   ǵ ̷ ٰ . , û ϱ ڽ Ʈ Ͼ ѱ ƴ϶ ε ϰ ִ , ǽû ﵵ̸ Ͽ ۼǾ ִ , ̿ ݴ û ѱ ͼ ٰŷ ذ ̷ 䱸ϰ ִ.

׷ Ģ 11, ϴ ڰ ٸ  Ұϰ ߻ϴ óϱ ϴ ̸ Ͽ ڰ ϰ ٺ ϰ ִ¹, , ϱ ѱ ƴ ٸ ε Ͼ ϰ ִٴ ̳ û ѱ ͼ ʴٴ Ģ 11 Ģ غҸ δ Ǵܵ ƴѴ. ٸ, ǽû ﵵ̸ ̿ Ʈ Կ ־ ϳ  ѹ ִٴ ־ û , ̹ û û ѱ Ͽ ǽûο ȳ ѱε ̷ , г Ʒ ϴ ٿ Ͽ ﵵ̸ ûο 絵 ϴ ̹Ƿ, Ģ 11 Ģ ϰ ǽû ڹ ˱ϴ ǹ̿, Ͼ ѱ ۼȴ.

4 (a)׿ û û ޱ ؼ θ ؾ Ѵ:

(i)  û Ǹ ִ ǥ Ǵ ǥ ̸  ϰų ȥ ų ϴٴ ,

(ii) ̸ Ͽ Ǹ Ǵ ƴϴٴ , ׸

(iii) ̸ ǰ ִٴ .

װ Ͽ ǴѴ

ǥ ̸ ϡ缺

ﵵ̸ ̸ Ÿ α κ .com κ ϸ nbcuniversal Ǿ ̴ ٽ nbc universal е ִ¹, ̴ û ǥ NBC Universal ϰ ﵵ̸ ̿ ǥ ״ Ϳ Ұϴ. ׷ٸ ﵵ̸ û Ǹ ִ ǥ ȥ ų ϴ ̴.

ǽû Ǹ Ǵ

ǽû û  亯 ʾ, û 峻 ڷῡ ǽû nbcuniversal nbc universal,  κп Ͽ  Ǹ ϰ ʴ Ǵܵȴ.

C. ǽû

û ǥ θ νĵ ̷ ռ 캻 ٿ ǽû ﵵ̸ Ͽ  ̳ Ǹ Ǵܵȴ. Ư ǽûο ﵵ̸ NBC Universal պ Ͽ ǥ Ŀ ̷¹, ̿ պ ̿Ͽ պ ȸ ̸ ̸ ϰų ̸ ϴ   Ѿ ̶ WIPO Ͽ Ȯε ִ(Konica Corporation, Minolta Kabushiki Kaisha aka Minolta Co., Ltd. v. IC,  WIPO Case No. D2003-0112; Yellow Corporation v. MIC, WIPO Case No. D2003-0748; Japan Air Gases Limited  v. MIC, WIPO Case No. D2003-0344 ).

, ǽû ﵵ̸ Ͽ ġ ǽûο ﵵ̸ Ŵ ̵ ȸ簣 պ ϱ ѡ ξ ǥϰ , Ŵ ̵ ȸ簣 պ ϱ ̶ ϴ Ÿ ǥ ̿Ͽ ̸ ϰų ̸ ̿ϴ å ̴. ư û , ﵵ̸ ̿ ǽû Ȩ 캸, ǽû ϴ ǡ ǻ Ϳ Ұ ̿  dz е ǽû ǡ Ǽ DZ ƴ ̴.

ǽûο ﵵ̸ 4 (a) ϴ ̶ Ǵܵȴ.

 

7.

ٿ , г 4 (i)  Ģ 15 , û û <nbcuniversal.com> NBC Universal, Inc. Universal City Studios LLLP Ѵ.

 


Boh Young Hwang
г

Ik-Hyun Seo
г

:  2004 12 23


OPINION OF SIR IAN BARKER

A. Language of the Proceeding

On September 23, 2004, the Registrar advised the Center that the language of the registration agreement was Korean.  The Complainant had alleged in its complaint that English was the language of the agreement.  This was a reasonable assumption since (a) the Registrars form of agreement was posted on the Registrars website in the English language and (b) there is nothing in that agreement which requires use of any other language by a registrant.

Despite representations to the contrary from the Complainants lawyers, the Center required the Complainant to have the Complainant translated into Korean following the registrars confirmation that the language of the domain name registration agreement selected by the Respondent was Korean and the Respondents communication by e-mail that he does not consent to English as the language of the proceedings.  Despite being served with a Korean version of the complaint the Respondent filed no response.

I was chosen as a Panelist by the Center from a list of three provided by the Complainant pursuant to Paragraph 7 of the UDRP Rules.  The others were well-known Panelists from the United Kingdom and the United States.  I doubt whether either of the other nominees would speak or read Korean.  I am certainly unable to do so.  It was reasonable, in my view, for the Complainant, when seeking a three-member panel, to nominate three English-speaking Panelists.

Under Paragraph 11 of the UDRP Rules, the language of the administrative proceedings, absent agreement by the parties, is that of the registration agreement, unless the Panel decides otherwise.

I respectfully disagree with the opinion of the majority that Korean should be the language of the proceedings.  In my view there are the following reasons that require English.

(a) The Respondent demonstrated some facility with the English language in his email communications to the Center.

(b) The disputed domain name includes a word in the English language (universal) and clearly relates to companies in an English-speaking country.

(c) The content on the Respondents website is in English and shows that he may communicate his views in that language.

(d) The fact that the Respondent has filed no response even to the Korean complaint.

Numerous WIPO decisions indicate that the intention of Paragraph 11 is to ensure fairness in the selection of language, the expenses to be incurred and the delay caused by translations.

A similar situation to the present arose in International Data Group Inc. v Lingjun, WIPO Case No. D2004-0398.  The Panelist there said:

Thus the general rule is that the parties are at liberty to agree on the language of the administrative proceeding.  In the absence of this agreement, the language of the Registration Agreement shall dictate the language of the proceeding.  However, the Panel reserves the right to decide otherwise having regard to the circumstances of the case.  The Panels discretion must be exercised in the spirit of fairness and justice to both parties taking into consideration matters such as command of the language, time and costs.  It is important that the language finally decided by the Panel for the proceeding must not be prejudicial to either of the parties in his or her abilities to articulate the arguments for the case.

In this particular case, the contents of the website that bears the disputed domain names are all in English.  It is a reasonable assumption to make that the Respondent is sufficiently well-versed in the language in order to conduct his business over the website in English.  If he is not, there were ample opportunities for the Respondent to raise his objections on the choice of language, but he has made no response whether on the issue of the language of the proceeding or the allegations contained in the complaint lodged by the Complainant.  To rule that he language of the proceedings is Chinese would cause substantial delay in the proceedings and result in the complainant incurring unnecessary costs.  Therefore, in consideration of the above circumstances and in the interest of fairness to both parties, the Panel hereby decides that in accordance to Paragraph 11 of the Rules, English shall be the language of the present administrative proceeding.

The above case is different from the present in that the Respondent there, unlike here, made no representation on the question of language of the proceedings.  I agree with the Panelist about the relevance of the language of the website in deciding the language of the proceeding and also with the consideration of extra cost imposed on a Complainant in having to have translations made.

A case where the registration agreement was in Korean but where the parties had corresponded in English with the Respondent demonstrating an ability to understand and communicate in English, is Deutsche Messe AG v. Kim Hyungho, WIPO Case No. D2003-0679.  There the Panel determined that English be the language of the proceeding on condition that the Respondent be permitted to submit documents and submissions in Korean.  There was, also in that case, a small website in English using the disputed domain name.

A case where the complaint (as here) was originally prepared in English but filed in Korean is Amazon.com v. Kim Yoon-Jo, WIPO Case No. D2003-0774.  There the Respondent filed no Response and the Complainant was not able to communicate in Korean.  In the interests of fairness, the three-member Panel decided that English should be the language of the proceedings and not Korean, the language of the registration agreement.  The Panel nevertheless considered any Korean documents submitted by the Respondent.

A similar decision was made in Groupe Industriel Marcel Dassault, Dassault Aviation v. Mr. Minwoo Park, WIPO Case No. D2003-0989, in these words:

The complaint was filed in the English language.  The Respondent asserts that all document in this dispute resolution proceeding should be filed in the Korean language, which was the language of the registration agreement for the Domain Name, whereas the Complainant asserts that English should be the language of the proceeding.

According to Paragraph 11 of the Rules, the language of the administrative proceeding shall be the language of the registration agreement unless the Panel decides otherwise.  The spirit of Paragraph 11 is to ensure fairness in the selection of language by giving full consideration to the parties level of comfort with each language, the expenses to be incurred and the possibility of delay in the proceeding in the event translations are required and other relevant factors.

In the present case, even if the registration agreement for the Domain Name was made in the Korean language, it is apparent from the written communications exchanged among the parties that the Respondent seems to have little difficulty in communicating in the English language.  The English used by the Respondent in his letters demonstrates his ability to understand and communicate in English without difficulty. 

On the other hand, the Complainant is not able to communicate in Korean and therefore, if the Complainant were required to submit all documents in Korean, the arbitration proceeding will be unduly delayed and the Complainant would have to incur substantial expenses for translation.  Therefore, in consideration of the above circumstances and in the interest of fairness to both parties, the Panel hereby decides, under Paragraph 11 of the Rules, that English shall be the language of administrative proceeding in this case.  However, based on the Panels discretion, Korean language documents submitted, have been reviewed by the Panel.

All these previous WIPO decisions, in this Panelists view, favour English as the language of the proceedings in the present case.

  B.  Merits of Complaint

I agree with the majority that the complaint be allowed and transfer of the Disputed Domain Name ordered.  I have been supplied with a translation of the operative part of the decision by the Presiding Panelist and I agree with it.

The Disputed Domain Name is confusingly similar to the Complainants marks.  The Respondent has no rights or legitimate interests.  The registration was made and continues in bad faith.

To my mind, this case of opportunistic cyber squatting is no different from many similar cases where an individual has moved swiftly to register the name of a new entity as soon as a merger of two large corporations has been announced.  The cases cited by the majority are examples.  One could also mention:

Repsol YPF.S.A. v. Comn.com, WIPO Case No. D2001-0741;

SMS Demag AG v. Seung Gon, Kim, WIPO Case No. D2000-1434;

-  Pharmacia-Upjohn AB v. Monsantopharmacia, com. Inc, WIPO Case No. D2000-0446;

-  London Metal Exchange Limited v. Syed Hussain, WIPO Case No. D2000-1388.

 


 

Sir Ian Barker
г

Dated: December 23, 2004