WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
VKR Holding A/S v. Noorinet
Case No. D2011-1360
1. The Parties
The Complainant is VKR Holding A/S of Denmark, internally represented.
The Respondent is Noorinet of Republic of Korea (“Korea”).
2. The Domain Name and Registrar
The disputed domain name <veluxmarket.com> is registered with Netpia.com. Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 10, 2011. On August 10, 2011, the Center transmitted by email to Netpia.com. Inc. a request for registrar verification in connection with the disputed domain name. On August 17, 2011, Netpia.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.
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 August 23, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was September 12, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 13, 2011.
The Center appointed Ik-Hyun Seo as the sole panelist in this matter on September 22, 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. Due to unforeseen circumstances, the Panel found it necessary to extend the due date for the decision to October 13, 2011 and the parties were so notified.
4. Factual Background
The Complainant is a Danish company and the owner of the Velux Group, which has manufactured roof windows and accessories under the VELUX mark since 1941. The Complainant has a presence in some 40 countries and sells in approximately 90 countries.
The Respondent appears to be a Korean entity with an address in Korea.
5. Parties’ Contentions
The Complainant contends that the disputed domain name is identical or confusingly similar to marks in which the Complainant has rights. More specifically, the Complainant has trademark registrations for VELUX in a number of countries, including in Korea. The additional portion “market” need not be considered as it is a generic and non-distinctive term.
The Complainant also contends that the Respondent has no rights or legitimate interests in the disputed domain name, and confirms that it has not authorized or licensed rights to the Respondent in any respect.
Finally, the Complainant contends that the disputed domain name was registered and used in bad faith. First, the Complainant notes that the Respondent at one point used the disputed domain name for a domain parking site. This shows the Respondent’s attempt to obtain improper revenue from the fame and goodwill of the VELUX mark. Second, the sponsored links on the domain parking site forwarded directly to the websites owned by the Complainant’s competitors, which could reduce Internet traffic to the Complainant’s own websites and disrupt the Complainant’s business.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Preliminary Issue: Language of the Proceeding
Paragraph 11 (a) of the Rules provides that the language of the proceeding shall be the language of the registration agreement, unless otherwise agreed to by the parties, subject to the authority of the panel to determine otherwise. In this case, the language of the registration agreement is Korean, and the Complainant submitted arguments as to why English is more appropriate, citing a number of factors.
First, the Panel notes that English does not appear to be the mother language of either party. Given the fact that the Complainant is based in Denmark and the Respondent is based in Korea, English would appear to be the fairest neutral language for rendering this decision. Besides, both parties were given the opportunity to submit arguments in the language of their preference, and the language in which to render the decision is reserved for the Panel in accordance with paragraph 11 of the Rules. Furthermore, the Panel notes that all of the Center’s communications have been transmitted to the parties in both English and Korean. Also given that the sales ad that the Respondent placed on the website was partly in English, and the Respondent has chosen to not participate in this proceeding, the Panel sees no justification for rendering the decision in Korean in view of the overall circumstances.
Therefore, the Panel finds it proper and fair to render this decision in English.
A. Identical or Confusingly Similar
The Complainant has demonstrated with supporting evidence that it holds trademark registrations for VELUX in a number of countries, Korea among them. The disputed domain name <veluxmarket.com> entirely incorporates the Respondent’s trademark, and simply adds the additional portion “market”, which is a generic and/or descriptive term. Accordingly, <veluxmarket.com> can be viewed as confusingly similar to the Complainant’s trademark.
For the reasons mentioned above, the Panel finds that the first element has been established.
B. Rights or Legitimate Interests
On the basis of the present record, the Panel finds that the Complainant has made the required allegations to support a prima facie showing that the Respondent has no rights or legitimate interests in the disputed domain name. Once such a prima facie basis has been established, the Respondent carries the burden of demonstrating his rights or legitimate interests in the disputed domain name. However, the Respondent in this case has chosen to file no Response. Accordingly, there is no evidence or allegation in the records that would warrant a finding in favor of the Respondent on this point.
For the reasons provided above, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name, and that the second element has been established.
C. Registered and Used in Bad Faith
The Panel finds that there are more than sufficient reasons to find bad faith in this case. First, the disputed domain name was at one point linked with a domain name parking service which had sponsored links to the websites of the Complainant’s competitors. The fact that the domain name parking service had links to the Complainant’s competitors shows that the Respondent was aware of the Complainant, its products and its trademark. This further shows that the Respondent used the disputed domain name to attract Internet users for financial gain.
Second, the Respondent disconnected the disputed domain name from the parking service shortly after the Complainant contacted the Respondent for transfer of the disputed domain name. Instead, the Respondent placed a “for sale” ad on the site with the sentence, “You can buy this domain showing this webpage if your price is ok” (emphasis added). This statement, especially the italicized portion, strongly suggests that the Registrant intended to sell the disputed domain name for a sum well in excess of the related out-of-pocket costs, which is clear evidence of bad faith registration and use.
For the reasons given above, it is clear that this third and final element has been established.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name, <veluxmarket.com> be transferred to the Complainant.
Dated: October 13, 2011