WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Meeho! ApS v. Kwag, Yoonil
Case No. D2011-1179
1. The Parties
The Complainant is Meeho! ApS of Lyngby, Denmark, internally represented.
The Respondent is Kwag, Yoonil of Leonia, New Jersey, United States of America, represented by Du-Young Kwag, United States of America.
2. The Domain Name and Registrar
The Disputed Domain Name <meeho.com> is registered with NameSecure L.L.C.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 12, 2011. On July 12, 2011, the Center transmitted by email to NameSecure L.L.C. a request for registrar verification in connection with the disputed domain name. On July 12, 2011, NameSecure L.L.C. 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 amended Complaint on July 19, 2011.
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” or “UDRP”), 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 July 20, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was August 9, 2011. The Response was filed with the Center on August 8, 2011.
The Center appointed Charné Le Roux as the sole panelist in this matter on August 16, 2011. 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
The Complainant is the owner of the trade mark MEEHO! registered in terms of the Madrid Protocol in 2007 and covering services in international classes 35, 41 and 42.
The Respondent registered the Disputed Domain Name in December 1999 and the website at the Disputed Domain Name currently resolves to a blank page. The Respondent is the sole shareholder of Mee Ho Express Corp., a New Jersey corporation incorporated in 1994.
5. Parties’ Contentions
The Complainant contends that it is the owner and developer of a software product that it brands under the trade mark MEEHO!, and that enables clients to organize and administrate their businesses. The Complainant indicates that it is the proprietor of two trade mark registrations for MEEHO!, registered in terms of the Madrid Protocol in September and December 2007 respectively. It indicates further that it will initiate an international marketing campaign for MEEHO! software products during the Fall of 2011.
The Complainant submits that the Disputed Domain Name is the international domain name that should be used by the Complainant in order to serve its international clients. It contends that the Disputed Domain Name is designed to lead consumers who are searching for the Complainant’s product to the Respondent’s website and also that the Complainant will be unable to undertake the business activities that it plans in the face of the Disputed Domain Name. It submits that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name in that it has not been used actively by the Respondent since 2004, that the Respondent has shown no sign of being commonly known by the Disputed Domain Name and that it has not acquired a single trade mark or service mark in relation to the Disputed Domain Name.
The Complainant also contends that the Disputed Domain Name has been registered in bad faith in that it prevents the Complainant from being able to be reflected as the rightful owner in the MEEHO! trade mark. It submits that the fact that the Respondent has not reacted to any correspondence that the Complainant initiated, constitutes an expression of bad faith. The Complainant submits that the Respondent is hindering its business activities and is thus damaging the business of the Complainant.
The Complainant requests that the Disputed Domain Name be transferred to it.
The Respondent contends that even if the Complainant’s trade mark and the Disputed Domain Name are identical, that this alone is not a ground for cancelling a domain name registration. The Respondent explains that the Disputed Domain Name was created to launch his limousine taxi company, called Mee Ho Express Corp. and that the name “meeho” was selected with reference to a river located in Republic of Korea.
The Respondent submits that he registered the Disputed Domain Name in 1999 in the interest of his limousine taxi company. He contends that he is the legitimate registrant of the Disputed Domain Name and has used it as a company website. The Respondent submitted evidence to the effect that he is a 100% shareholder in the Mee Ho Express Corp. and that this entity was incorporated in 1994. He indicates that while he is no longer operating the entity Mee Ho Express Corp. and the company website is no longer displayed, that he continues to maintain the Disputed Domain Name in order to use his email address email@example.com, and that he plans to restart his limousine taxi company again.
The Respondent points out that the Complainant only established its trade mark approximately 8 years after the Respondent registered the Disputed Domain Name.
The Respondent contests the allegation that the Disputed Domain Name is being used in bad faith. It contends that the Disputed Domain Name was registered 12 years ago for the limousine taxi company’s business interests and that it was never offered for sale or used to extort monies and certainly not to prevent the Complainant from reflecting its mark in the corresponding domain name or to disrupt its business.
The Respondent points out that the parties are not competitors and that the Respondent has not heard of the Complainant before receipt of the Complaint. He also points out that he has no intention to attract or confuse Internet users looking for the Complainant and denies that the mere fact that he has not used the Disputed Domain Name for the past few years to connect to any home page, constitutes bad faith.
6. Discussion and Findings
In accordance with paragraph 4(a) of the Policy, in order to succeed in this proceeding, the Complainant must prove:
i) That the Disputed Domain Name is identical or confusingly similar to the mark in which it has rights;
ii) That the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name;
iii) That the Disputed Domain Name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Panel finds on the evidence that the Complainant owns registered rights in the trade mark MEEHO!. While the Complainant did not specifically make the allegation that the Disputed Domain Name is identical or confusingly similar to its MEEHO! trade mark, the Panel is of the view that it can be inferred based on the evidence that has been submitted. The Panel consequently finds that the Disputed Domain Name is confusingly similar to the Complainant’s trade mark.
The first requirement of paragraph 4(a) of the Policy is satisfied.
B. Rights or Legitimate Interests
The Panel accepts that the Respondent registered a corporation under the name Mee Ho Express Corp. as a New Jersey corporation in March 1994 and as evidenced by a copy of the New Jersey Corporation Business Tax Return filed in 2002. The Panel also accepts that the Respondent is a 100% shareholder of this corporation, which is also borne out by the evidence that has been submitted. The Panel finds, on the basis of these facts, that the Respondent has established a legitimate interest in the Disputed Domain Name.
The fact that the Respondent is not currently using the Disputed Domain Name in connection with the offering of services connected with its limousine company, does not detract from the Panel’s view that he has established rights independent and prior to those of the Complainant, whose earliest demonstrated right in respect of the trade mark MEEHO! could only be established as of 2007.
The Panel finds that the second requirement of paragraph 4(a) of the Policy has not been satisfied.
C. Registered and Used in Bad Faith
The Panel finds, based on the evidence submitted by the Respondent, that the Complainant has not made out a case that the Respondent registered and used the Disputed Domain Name in bad faith. The Panel finds, on the contrary, that the Respondent has preceding rights in respect of the Disputed Domain Name and has registered it to promote his limousine taxi business as long ago as 13 years prior to the registration of the Complainant’s trade mark.
Consequently, the Panel finds that the third requirement of paragraph 4(a) of the Policy has also not been met.
For the foregoing reasons, the Complaint is denied.
Charné Le Roux
Dated: August 30, 2011