WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Applied Computer Systems, Inc. v. Rob Edwin, Kimtaeho, WWW Enterprise, Inc.
Case No. D2007-1925
1. The Parties
The Complainant is Applied Computer Systems, Inc., Knoxville, Tennessee, United States of America, represented by Kulaga Law Office, PLLC, Knoxville, Tennessee, United States of America.
The Amended Complaint identifies three Respondents: (1) Rob Edwin, Lyndell, Pennsylvania, United States of America; (2) Kimtaeho, Gwangju, Republic of Korea; and (3) WWW Enterprise, Inc., Los Angeles, California, United States of America. The Complainant contends that the three Respondents are in fact the same entity and alter egos for each other. References to “the Respondents” herein will be to the three Respondents, both individually and collectively, unless indicated otherwise.
2. The Domain Names and Registrar
The disputed domain names <jobpower.com> and <jobpower.org> are registered with Cydentity, Inc., doing business as Cypack.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 24, 2007. On December 27, 2007, the Center transmitted by email to Cydentity, Inc., dba Cypack.com, a request for registrar verification in connection with the domain names at issue. On December 28, 2007, Cydentity, Inc., dba Cypack.com, transmitted by email to the Center its verification response confirming that Respondent Kimtaeho is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an Amended Complaint on January 18, 2008. The Center verified that the Complaint, together with the Amended 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 Respondents of the Complaint, and the proceedings commenced on January 21, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was February 10, 2008. The Respondents did not submit any response. Accordingly, the Center notified the Respondents of the default on February 12, 2008.
The Center appointed Professor Ilhyung Lee as the sole panelist in this matter on February 22, 2008. 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.
As discussed herein, the Panel determines that the language of the proceeding will be English.
4. Factual Background
The Complainant is a Tennessee corporation that provides “construction accounting software” for contractors. It registered the trademark JOBPOWER for “computer programs for use in the field of building contracting”, with the U.S. Patent and Trademark Office on June 27, 1989. The Complainant also registered the domain name <jobpow.com> for its Internet site on January 14, 1998.
Respondent Rob Edwin registered the domain name <jobpower.com> on March 24, 2002, and <jobpower.org> on May 10, 2002, both with OnlineNIC, Inc.
5. Parties’ Contentions
The Complainant argues that: (i) the disputed domain names are identical or confusingly similar to the mark in which the Complainant has rights; (ii) the Respondents have no rights or legitimate interests in respect of the domain names; and (iii) the domain names have been registered and are being used in bad faith.
The Complainant also states that its counsel had sent a letter to Respondent Rob Edwin requesting that he transfer the domain names to the Complainant, and cease and desist from any further use of the domain names. The Complainant contends that within days after receiving the letter, Edwin changed registrars and the registration details, in an attempt to avoid or delay judicial or UDRP proceedings.
The Respondents did not reply to the Complainant’s contentions.
Under Paragraphs 5(e) and 14(a) of the Rules, the Panel may decide the dispute based on the Complaint, as amended, and draw appropriate inferences from the Respondents’ default. The Rules, as provided in Paragraph 14(b), also allow the Panel to draw appropriate inferences from such default.
6. Discussion and Findings
The Panel must initially determine the language of the proceeding. Paragraph 11(a) of the Rules provides that the language of the administrative proceeding shall be the language of the Registration Agreement, unless otherwise agreed by the parties. The same provision, however, also states that the determination of the language of the proceeding is “subject to the authority of the Panel . . ., having regard to the circumstances of the administrative proceeding”.
The language of the operative Registration Agreement here is Korean. Yet the Respondents have not requested to proceed in Korean. Instead, the Respondents have failed to participate in the proceeding, and have been notified of their default. The Complainant, as the lone remaining party, has requested that the proceeding be in English. Taking into account all the circumstances, the Panel agrees.
A. Identical or Confusingly Similar
The disputed domain names <jobpower.com> and <jobpower.org> are confusingly similar with JOBPOWER, a mark in which the Complainant has rights. The Complainant has satisfied the first element.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a non-exhaustive list of the ways in which the respondent may demonstrate rights or legitimate interests in the domain name, namely, evidence of: (i) the respondent’s use of the domain name in connection with a bona fide offering of goods or services; (ii) the respondent being commonly known by the domain name; or (iii) the respondent making a legitimate noncommercial or fair use of the domain name. There is no evidence in the record to support any of these possibilities. Moreover, the Panel is not able to find any circumstances that would demonstrate the Respondents’ rights or legitimate interests in <jobpower.com> or <jobpower.org>. The Panel determines that the Respondents have no rights or legitimate interests in respect of the domain names.
C. Registered and Used in Bad Faith
Under Paragraph 4(a)(iii) of the Policy, the Complainant must show that each of the domain names “has been registered and is being used in bad faith”. The Policy provides a list of examples in which the requisite bad faith may be shown, under Paragraph 4(b). Importantly, however, the list is non-exhaustive. Indeed, panels may determine that bad faith is present in circumstances not specifically enumerated in Paragraph 4(b).
A body of UDRP decisions has held that “offers to sell to the public at large domain names that are identical or confusingly similar to marks of others may constitute bad faith within the meaning of paragraph 4(a)(iii) of the Policy”. Laboratoire Pharmafarm (SAS) v. M. Sivaramakrishan, WIPO Case No. D2001-0615; United Feature Syndicate, Inc. v. All Business Matters, Inc. (aka All Business Matters.com) and Dave Evans, WIPO Case No. D2000-1199. As the panelist in TV Globo Ltda. v. Radio Morena, WIPO Case No. D2000-0245, wrote most forcefully: “[T]he sole fact that the disputed domain names have been registered by a person that does not use them but publicly offers them for rent or sell is the most perfect evidence of a bad faith activity in prejudice of Internet community and of the owner of the trademarks used as domain names.”
Here, the record indicates that the domain names were offered for sale to the public on an Internet site “www.sedo.com”. Using this site, the Complainant made an offer of US$1,350 (increased to US$2,200) for the <jobpower.com> domain name, and received a counteroffer for US$30,000. The Complainant acknowledges that the owner of the domain name is not identified on the “www.sedo.com” site, but also emphasizes that the sale or transfer of the domain name cannot occur without the approval of the registrant, which is the Respondents here. In addition, in response to the Complainant’s anonymous inquiry about the sale of <jobpower.org>, Respondent Rob Edwin offered a price of US$50,000, which far exceeds out-of-pocket costs related to the domain name.
Based on the record, the Panel determines that the offer for the sale of the domain names to the public seen here is sufficient evidence of the third element of bad faith.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain names <jobpower.com> and <jobpower.org> be transferred to the Complainant.
Dated: March 6, 2008