WIPO

 

WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Fissler GmbH v. Chin Jang Ho

Case No. D2008-1002

 

1. The Parties

The Complainant is Fissler GmbH, Idar-Oberstein, Germany, represented by CMS Hasche-Sigle Partnerschaft von Rechtsanwälten und Steuerberatern, Germany.

The Respondent is Chin Jang Ho, Seoul, Republic of Korea.

 

2. The Domain Name and Registrar

The disputed domain name <fissler.com> is registered with the registrar Gabia, Inc.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 2, 2008. On July 3, 2008, the Center transmitted by email to Gabia, Inc. a request for registrar verification in connection with the domain name at issue. On July 4, 2008, Gabia, Inc. transmitted by email to the Center its verification response, confirming that the Respondent 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 amendment to the Complaint on July 14, 2008. 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 paragraphs 2(a) and 4(a) of the Rules, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on July 23, 2008. In accordance with paragraph 5(a) of the Rules, the due date for the Respondent to respond to the Complaint was August 12, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 19, 2008.

The Center appointed Junghye June Yeum as the sole panelist in this matter on August 26, 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 paragraph 7 of the Rules.

The Panel determines that the language of this proceeding is English, as discussed herein.

 

4. Factual Background

As indicated in the WhoIs registration record provided as Exhibit 1 to the Complaint, the Respondent registered the disputed domain name <fissler.com> on December 22, 2003.

The Complainant owns numerous foreign trademark registrations for the FISSLER mark in various countries. The Complainant has provided in Annex 5 to the Complaint a listing of its foreign trademark registrations for its FISSLER mark.

The Complainant also owns numerous domain name registrations for domain names containing the FISSLER mark. In the Complaint, the Complainant provides a list of the domain name registrations it owns for domain names incorporating FISSLER. The Complainant operates its principal company website at <www.fissler.de.>

The Complainant provides goods in the cooking and dining field in Germany under its FISSLER mark for more than 160 years. The Complainant is currently represented in more than 60 countries all over the world.

In Annex 4 to the Complaint, the Complainant provides a list of the design awards it has won for its FISSLER brand products.

The Complainant advertises and promotes its goods sold under or in connection with its FISSLER mark.

The Complainant maintains a presence on the Internet through its operation of various authorized websites located at the domain names, among others, <fissler.de>, <fissler.net>, <fissler.eu>, <fissler.biz>, <fissler.us>, <fissler.co.uk>, and <fissler.co.kr>. The Complainant uses the websites located at these domain names to advertise and promote the Complainant’s FISSLER brand products and provide information and support to consumers of those products.

 

5. Parties’ Contentions

A. Complainant

(i) Identical or Confusingly Similar

The Complainant contends that the disputed domain name <fissler.com>, by virtue of its incorporation of the name “Fissler” in its entirety, is confusingly similar to the Complainant’s FISSLER mark.

Accordingly, the Complainant asserts that it has satisfied the confusing similarity/identity requirement in paragraph 4(a)(i) of the Policy.

(ii) Rights or Legitimate Interests

The Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain name pursuant to paragraph 4(a)(ii) of the Policy.

First, the Complainant alleges that, in light of the Complainant’s claimed prior substantial worldwide use of its FISSLER mark and the significant public recognition which the Complainant and its FISSLER brand products have attained, there is no conceivable bona fide use that the Respondent can make of the disputed domain name. In that regard, the Complainant asserts that the Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services.

Second, the Complainant states that there is no evidence that the Respondent has ever been commonly known by or associated with the “Fissler” name. The Complainant notes that the Respondent’s name is “Chin Jang Ho.”

Third, the Complainant asserts that the disputed domain name is being used for commercial purposes rather than a non-commercial “fair use.”

(iii) Registered and Used in Bad Faith

The Complainant contends that the Respondent registered and is now using the disputed domain name in bad faith under paragraph 4(a)(iii) of the Policy.

First, the Complainant asserts that, given the claimed worldwide recognition of the Complainant’s FISSLER mark, the Respondent’s registration and use of the disputed domain name is not legitimate. The Complainant alleges that the Respondent registered the disputed domain name solely for the purpose of selling and/or renting the use of the domain name to the Complainant.

Second, the Complainant alleges that bad faith is evidenced by the Respondent’s failure to use the disputed domain name in connection with a legitimate offering of goods or services.

Third, the Complainant alleges that the Respondent’s offer to sell the disputed domain name for U.S. $200,000.00 constitutes bad faith.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

 

6. Discussion and Findings

Language of Proceedings

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, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding. Here, the Registrar confirmed to the Center that the language of the Registration Agreement is Korean. The Complainant requested that English be the language of the proceeding, including arguments and supporting material.

On July 9, 2008, the Center issued a Language of Proceeding notification to both parties in both English and Korean. In that notification, the Center instructed as follows:

“Instructions to the Complainant

Accordingly, the Complainant is requested to provide at least one of the following:

1) satisfactory evidence of an agreement between the Complainant and the Respondent to the effect that the proceedings should be in English; or

2) submit the Complaint translated into Korean; or

(In this connection, please note that the Center makes available a model Complaint in Korean, Spanish, Portuguese, Japanese, French and English on the Center’s website at “www.wipo.int/amc”. The model Complaint is available at http://www.wipo.int/amc/en/docs/complaint-udrp.doc, with other language options available in the upper right-hand side of the webpage.)

3) submit a request for English to be the language of the administrative proceedings. Such request shall include arguments and supporting material (to the extent not already provided in the Complaint) as to why the proceedings should be conducted in English.

Such considerations may include for example the language used in pre-Complaint correspondence between the parties, the identity of the parties, the nationality and place of residence of the parties, and any other evidence of familiarity with the requested language. Should the Complainant already have submitted such request in its Complaint, it is requested to confirm that it has nothing further to add to it.

Please note however, that should the Complainant decide to pursue the latter option (3), neither the Center nor the Administrative Panel will be precluded from requiring, on its own or in light of submissions that may be received from the Respondent on this issue, that the proceedings take place in the language of the registration agreement and requesting that all documentation in the proceedings not in that language be translated into Korean. […]

Instructions to the Respondent

In all cases, if the Respondent is intending to participate in these proceedings, and/or has any comments on the Complainant’s submission replying to this notification, the Respondent is requested to submit these to the Center by July 16, 2008.

Specifically in the case of the Complainant submitting (or indicating that it will submit) a request for the language of proceedings to be English, and the Respondent objects to such request, the Respondent is invited to indicate that objection for the record, and to submit any arguments/supporting materials (in light of the considerations enumerated in paragraph 3) above) as to why the proceedings should not be conducted in English.”

The Center has throughout the proceedings issued its case-related communications, including the Center’s complaint notification documents, in both Korean and English. The Respondent has chosen not to participate in the proceeding, and has been notified of its default. The Panel is satisfied that the Center’s approach has been fair and appropriate, reserving the discretion to the Panel to determine the appropriate language of proceedings.

The Panel notes that the spirit of Paragraph 11 of the Rules is to ensure fairness in the selection of language by giving full considerations to the parties’ level of comfort with each language. See Deutsche Messe AG v. Kim Hyungho, WIPO Case No. D2003-0679. In the present case, although the registration agreement for the disputed domain name is in the Korean language, it is also self-evident from the Respondent’s website for the disputed domain name displaying a message to offer the domain name for sale that the Respondent can communicate in English without apparent difficulties. On the other hand, the Complainant is not able to communicate in Korean, nor is English a native language for either party.

Taking into account these circumstances and in light of fairness to both parties, the Panel renders its decision in English.

A. Identical or Confusingly Similar

The Panel finds that the disputed domain name <fissler.com>, by virtue of its incorporation of the name “Fissler” in its entirety, is identical or confusingly similar to the Complainant’s FISSLER mark.

B. Rights or Legitimate Interests

The Panel finds that the Respondent has not and cannot offer any basis that would provide a legitimate claim to the disputed domain name under paragraph 4(c) of the Policy.

The Panel finds that, given the worldwide recognition of the Complainant’s FISSLER mark and its FISSLER brand products, it is likely that the Respondent was well aware of the Complainant and its FISSLER mark at the time the Respondent registered the disputed domain name. In spite of his knowledge of the Complainant’s FISSLER mark, the Respondent proceeded to register the disputed domain name.

The printout of the website for the disputed domain name shows that the Respondent offers the disputed domain name for sale. Accordingly, the Panel finds that the Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services.

Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name under paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

The Panel finds that the Respondent’s actions constitute bad faith registration and use of the disputed domain name.

As discussed above, it is more than likely that the Respondent was well aware of the Complainant and its use of its FISSLER mark, given the Complainant’s widespread use of the mark in connection with its cooking and dining products. Accordingly, the Panel finds that the Respondent’s registration and use of the disputed domain name that incorporates the Complainant’s FISSLER mark in its entirety constitutes bad faith.

The Panel also finds bad faith evidenced by the fact that the Respondent has not used the disputed domain name in connection with a legitimate offering of any goods or services.

Finally, the Panel finds that the Respondent’s offer to sell the disputed domain name for U.S. $200,000.00, a sum clearly in excess of the Respondent’s costs to register the domain name, compounded the bad faith nature of the Respondent’s conduct.

Accordingly, the Panel finds that the Respondent’s actions constitute bad faith registration and use of the disputed domain name <fissler.com> in violation of paragraph 4(a)(iii) of the Policy.

Thus, the Panel concludes that the Complainant has provided sufficient proof of its allegations to establish a case under paragraph 4(a) of the Policy upon which the relief it seeks can be granted.

 

7. Decision

For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <fissler.com> be transferred to the Complainant.


Junghye June Yeum
Sole Panelist

Date: September 9, 2008