WIPO Arbitration and Mediation Center
BASF Aktiengesellschaf v. Geunhee Yun
Case No. D2006-1058
1. The Parties
The Complainant is BASF Aktiengesellschaf, of Ludwigshafen, Germany, represented by Bettinger Schneider Schramm Patent- und Rechtsanwälte, Germany.
The Respondent is Geunhee Yun, of Daegu, Republic of Korea.
2. The Domain Name and Registrar
The disputed domain name <styropor.com> is registered with RegisterFly.com, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 21, 2006. On August 22, 2006, the Center transmitted by email to RegisterFly.com, Inc. a request for registrar verification in connection with the domain name at issue. On September 13, 2006, RegisterFly.com, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on September 22, 2006. 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 25, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was October 15, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 17, 2006.
The Center appointed Mr. José Mota Maia as the Sole Panelist in this matter on October 31, 2006. 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
According to the proof submitted in this proceeding, Complainant is the owner of the registered trademark STYROPOR. This trademark is registered worldwide since 1954.
Complainant is one of the largest chemistry engineering companies worldwide. BASF is doing business in over 170 countries and is served by 94,000 employees.
Respondent is an individual. Respondent registered the Domain name on August 31, 2005.
5. Parties’ Contentions
The Complainant contends that the disputed domain name is identical to the STYROPOR trademark that Complainant has registered in several countries.
The Complainant contends that the Respondent is currently using the Domain Name to divert Internet users to a website in German and English language which offers domain name holders to earn pay-per-click-revenues for redirecting Internet users to third parties’ websites and thus capitalizing on the Complainant’s mark. There is no evidence that the Respondent is known by the disputed domain name that would legitimize and override the Complainant’s rights. In summary, the Complainant contends that the Respondent has no rights or legitimate interests in the Domain Name.
Complainant adds that Respondent is using the Domain Name for commercial gain and to create confusion as to the sponsorship, affiliation or endorsement of his/her website by Complainant. Complainant further contends that Respondent’s use of Complainant’s mark as an alternative route by which customers can access his site is an attempt to trade on the strength of Complainant’s mark.
The Complainant concludes that, based on all the facts and circumstances in the Complaint, it may be inferred the Respondent has registered and is using the Domain Name in bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy lists the three elements which Complainant must satisfy in order to succeed:
(i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith.
In a case where a respondent does not file a Response, the Panel may draw such inferences as it considers appropriate under Paragraph 14 of the Rules.
A. Identical or Confusingly Similar to a Mark
The Panel finds that Complainant has rights to the mark STYROPOR and that the domain name <styropor.com> is identical to the mark. The “.com” designation does not have any relevance for purposes of comparison.
Complainant has satisfied paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
Pursuant to paragraph 4(c) of the Policy, a respondent may establish its rights or legitimate interests in a domain name, among other circumstances, by showing any of the following elements:
(i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable 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; or
(ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the Domain Name, even if you have acquired no trademark or service mark rights; or
(iii) you [Respondent] are making a legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain, to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Complainant has sufficiently made a prima facie showing that Respondent has no rights or legitimate interest in the domain name.
Respondent, who filed no response in this proceeding, has not invoked any of the circumstances of Policy, paragraph 4(c) to suggest any “rights or legitimate interests” in respect of the Domain Name.
Respondent’s use of the Domain Name to direct Internet users to Respondent’s commercial website is not a bona fide offering of goods or services under Policy paragraph 4(c)(i). Based on the evidence of record, the Panel finds that Respondent does not have any rights or legitimate interests under paragraphs 4(c)(ii) or (iii).
The Panel finds that Complainant has satisfied 4(a)(ii) of the Policy, and that Respondent lacks any “rights or legitimate interests” in respect of the Domain Name for purposes of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides that the following circumstances, “in particular but without limitation”, are evidence of the registration and use of the Domain Name in “bad faith”:
(i) circumstances indicating that Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the Domain Name; or
(ii) that Respondent has registered the Domain Name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or
(iii) that Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) that by using the Domain Name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other on-line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location.
The Panel finds that Respondent registered and is using the domain name in bad faith under paragraph 4(a)(iv) of the Policy. Respondent selected the domain name <styropor.com>, which is identical to Complainant’s mark. At the time of Respondent’s domain name registration, Complainant’s mark was already registered worldwide. By registering and using the Domain Name at issue incorporating Complainant’s trademark, Respondent is misleading consumers and Internet users into thinking that Respondent is either in some way connected, sponsored, or affiliated with Complainant and its trademark; or that Respondent’s activities are approved endorsed by Complainant.
The Panel, hence, finds that Complainant has satisfied 4(a)(iv) of the Policy
For all the foregoing reasons, in accordance with paragraph 4(a) of the Policy and paragraph 15 of the Rules, the Panel orders that the Domain Name <styropor.com> be transferred to Complainant.
José Mota Maia
Dated: November 14, 2006