WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Camlog Biotechnologies AG v. Linecom
Case No. D2011-2317
1. The Parties
The Complainant is Camlog Biotechnologies AG of Basel, Switzerland, represented by Hepp Wenger Ryffel AG, Switzerland.
The Respondent is Linecom of Kyungjoo-shi, Gyongsangbuk-Do, Republic of Korea.
2. The Domain Name and Registrar
The disputed domain name <conelog.com> is registered with Gabia, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) against on December 30, 2011. On January 3, 2012, the Center transmitted by email to Gabia, Inc. a request for registrar verification in connection with the disputed domain name. On January 4, 2012, Gabia, Inc. transmitted by email to the Center its verification response confirming that the Respondent, Linecom, is listed as the registrant and providing the contact details.
The Center verified that the 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”).
On January 10, 2012, the Center notified the parties in both English and Korean that the language of the Registration Agreement in this case was Korean. On January 11, 2012, the Complainant submitted a request that English be the language of the proceeding, to which the Respondent has not replied.
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint in both English and Korean, and, and the proceedings commenced on January 16, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was February 5, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 6, 2012.
The Center appointed Thomas P. Pinansky as the sole panelist in this matter on February 10, 2012. 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, based in Basel, Switzerland, is Camlog Biotechnologies AG. The Complainant is the owner of the International Trademark Registration No. 907541 for CONELOG. The CONELOG Mark was registered with WIPO on November 17, 2006, and claims priority of the basic Swiss Trademark No. 549806 with a filing date of June 20, 2006, which is protected in many countries (including the Republic of Korea). The disputed domain name was created on August 14, 2011.
5. Parties’ Contentions
The disputed domain name is identical or confusingly similar to a mark in which the Complainant has rights.
The Respondent has no rights or legitimate interests in the disputed domain name. The Complainant has never authorized the Respondent to use its mark, either through a license agreement or otherwise and the Complainant has no relationship with the Respondent.
The disputed domain name was registered and is being used in bad faith.
The Respondent’s offer to sell the disputed domain name on a website to a third party is further evidence constituting bad faith registration and use.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Language of the Proceeding
According to paragraph 11 of the Rules, the language of the administrative proceeding shall be the language of the registration agreement unless the Panel decides otherwise. The spirit of paragraph 11 is to ensure fairness in the selection of language by giving full consideration to the parties’ level of comfort with each language, the expenses to be incurred and the possibility of delay in the proceeding in the event translations are required and other relevant factors.
While the Respondent has not submitted any request in relation to the language of the proceeding, it appears from the record that the Respondent has ability to understand English. The previous correspondence between the parties demonstrate the Respondent has little difficulty in communicating in English. Moreover, the Respondent’s website at the disputed domain name contains the content written in English: “This website is under construction now. However, you can buy this domain showing this webpage if your price is ok. Please send your offer to […]@hotmail.com [or] […]@dreamwiz.com.”
It is also noteworthy that the Center in initially deciding to proceed with acceptance of the Complaint in English nevertheless communicated with the parties in both English and Korean, indicated that it would accept a Response in either English or Korean and indicated it would appoint a Panel familiar with both English and Korean.
On the other hand, the Complainant has submitted a request that English be the language of the proceeding, on the ground that it does not dispose of any knowledge in Korean. Accordingly, if the Complainant were to submit all documents in Korean, the administrative proceeding would be unduly delayed and the Complainant would have to incur substantial expenses for translation.
Therefore, in consideration of the above circumstances and in the interest of fairness to both parties, the Panel hereby decides, under paragraph 11 of the Rules, that English shall be the language of proceeding in this case. See Deutsche Messe AG v. Kim Hyungho, WIPO Case No. D2003-0679.
B. Substantive Elements of the Policy
Paragraph 4(a) of the Policy requires the Complainant to prove each and all of the following three elements in order to prevail in these proceedings:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
The fact that the Respondent has not provided a Response to the Complaint does not relieve the Complainant of the burden of proving its case. In the absence of a Response, paragraph 5(e) of the Rules expressly requires the Panel to “decide the dispute based upon the complaint.” Under paragraph 14(a) of the Rules in the event of such a “default”, the Panel is still required “to proceed to a decision on the complaint,” and under paragraph 14(b) the Panel shall “draw such inferences therefrom as it considers appropriate.”
Consequently, the Panel must proceed with an assessment of the Complaint on its merits.
C. Identical or Confusingly Similar
The Complainant has registered the CONELOG Mark in various countries in connection with numerous goods of International Class 10. The disputed domain name wholly incorporates the Complainant’s distinctive trademark CONELOG and as such creates sufficient similarity to be identical (or at least confusingly similar) (see paragraph 4(a) of the Policy).
Therefore, the Panel finds that the disputed domain name is identical (or at least confusingly similar) to the Complainant’s trademark pursuant to the Policy, paragraph 4(a)(i).
D. Rights or Legitimate Interests
According to paragraph 4(a)(ii) of the Policy, the Complainant must prove that the Respondent has no rights or legitimate interests in the disputed domain name. In connection with the burden of proof, several WIPO UDRP decisions have held that once a complainant establishes a prima facie evidence showing that none of the three circumstances establishing legitimate interests or rights applies, the burden of production on this factor shifts to the respondent to rebut the showing. (see, among others, Universal City Studios, Inc. v. David Burns and Adam-12 Dot Com, WIPO Case No. D2001-0784; see also International Hospitality Management - IHM S.p.A. v. Enrico Callegari Ecostudio, WIPO Case No. D2002-0683).
The Complainant has asserted that the Respondent has no relationship with or authorization from the Complainant to use its marks; the Panel notes that there is nothing in the record to suggest that the Respondent has ever been commonly known by the disputed domain name. The Panel’s view is that these facts must be taken as proven provided that they have not been denied by the Respondent.
The Respondent has not submitted a Response. Therefore, the Respondent has failed to invoke any circumstance that could have demonstrated any rights or legitimate interests in the disputed domain name.
Accordingly the Panel holds that the Respondent has no rights or legitimate interests in the disputed domain name pursuant to paragraph 4(a)(ii) of the Policy.
E. Registered and Used in Bad Faith
Both under past UDRP decisions (see, for instance, Nike, Inc. v. B. B. de Boer, WIPO Case No. D2000-1397; see also Carolina Herrera, Ltd. v. Alberto Rincon Garcia, WIPO Case No. D2002-0806) and under the Policy (see paragraph 2), a well-established principle is that when a party registers a domain name, it represents and warrants to the registrar that, to its knowledge, the registration of the domain name will not infringe the rights of any third party. In the case at issue, the Panel reasonably finds that since the Complainant’s marks are widely known in its field, it is unlikely that the Respondent, at the time of registration of the disputed domain name, was not aware of the Complainant’s trademark.
Under the appropriate circumstances, bad faith can also be inferred based on the fame of the Complainant’s trademark, such that the Respondent was aware or should have been aware of the Complainant’s mark and claims of rights thereto. The Panel notes that any trademark check of the records of the patent and trademark offices of various jurisdictions would have made the Complainant’s registrations known to the Respondent.
In addition, the Respondent attempted to sell the disputed domain name for USD 12,000 (Annex 7 of the Complaint). It is well established that registering a domain name for the primary purpose of offering to sell, rent, or otherwise transfer the domain name for consideration in excess of a respondent’s out-of-pocket expenses is evidence that the domain name was registered and is being used in bad faith (see adidas-Salomon AG v. Vincent Stipo, WIPO Case No. D2001-0372).
The Panel finds that the Complainant has adequately supported the inference that the Respondent’s actions constitute evidence of bad faith in terms of 4(b)(i) of the Policy.
Moreover, the Panel notes that the Respondent appears to have registered under its name around 5,500 other domain names, and that its email address […]@dreamwiz.com (which is also shown on the webpage under <conelog.com>, Annex 4 of the Complaint) is associated with over 6,900 domain names (see Annex 8 of the Complaint). The Panel further notes that the Respondent has a history of cybersquatting (see, among others, Iconcard S.p.A. v. Linecom, WIPO Case No. D2005-1115).
The conduct described above falls squarely within paragraph 4(b)(ii) of the Policy and accordingly the Panel concludes that the Respondent registered and uses the disputed domain name in bad faith.
In light of the above, the Panel concludes that the Complainant has proven bad faith in registration and use on the part of the Respondent, pursuant to paragraph 4(a)(iii) of the Policy.
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 <conelog.com> be transferred to the Complainant.
Thomas P. Pinansky
Dated: February 24, 2012