WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
inMusic Brands, Inc. v. cypack.com / Choi Yun Gul
Case No. D2017-1376
1. The Parties
The Complainant is inMusic Brands, Inc. of Cumberland, Rhode Island, United States of America (“US” or “United States”), represented by Hinckley, Allen & Snyder, LLP, United States.
The Respondent is cypack.com / Choi Yun Gul of Seoul, Republic of Korea.
2. The Domain Name and Registrar
The disputed domain name <inmusic.com> is registered with Inames Co., Ltd. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 18, 2017. On July 19, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 20, 2017, the Registrar transmitted by email to the Center its verification response indicating that the Registration Agreement is in Korean and disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint.
On July 24, 2017, the Center notified the Parties in both English and Korean that the language of the Registration Agreement for the disputed domain name is Korean. On July 25, 2017 and July 26, 2017, the Respondent requested for Korean to be the language of the proceeding. On July 26, 2017, the Complainant requested for English to be the language of the proceeding.
The Center sent an email communication to the Complainant on July 24, 2017, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amended Complaint. The Complainant filed an amended Complaint on July 28, 2017.
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 and 4, the Center formally notified the Respondent of the Complaint in English and Korean, and the proceedings commenced on August 2, 2017. In accordance with the Rules, paragraph 5, the due date for Response was August 22, 2017. The Center received email communications from the Respondent in Korean on July 28, 2017 and August 2, 2017. The Response in Korean was filed with the Center on August 22, 2017.
The Center appointed Ik-Hyun Seo as the sole panelist in this matter on September 4, 2017. 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 21, 2017, and the Parties were so notified.
4. Factual Background
The Complainant, inMusic Brands, Inc. is a music technology and consumer electronics brand based in the United States. The Complainant has used the trademark INMUSIC since 2007 and has rights in a US trademark registration for INMUSIC on June 26, 2012 (US Trademark Reg. No. 4,164,557).
The Respondent Choi Yun Gul is a Korean individual who resides in the Republic of Korea.
The disputed domain name resolves to a website with a header titled “inMusic Inner Peace Through Music & Sound” with meditation-related imagery.
5. Parties’ Contentions
The Complainant contends that the disputed domain name is identical and/or confusingly similar to the INMUSIC trademark in which the Complainant has rights.
The Complainant also contends that the Respondent has no rights or legitimate interests in the disputed domain name.
Finally, the Complainant contends that the disputed domain name was registered and used in bad faith. Specifically, the Complainant asserts that the Respondent’s primary purpose for holding the disputed domain name is to sell it for valuable consideration in excess of any reasonable out-of-pocket costs. The Complainant also asserts that the Respondent has taken steps to hide his identity in the registration details and suggests this is another indication of bad faith.
The Respondent raises no assertions that dispute the Complainant’s trademark rights or that the disputed domain name is identical or confusingly similar to the disputed domain name.
With respect to the second element, the Respondent contends that he owns a trademark registration for INMUSIC and device in the Republic of Korea and thus has rights and legitimate interests in the disputed domain name.
With respect to the final element, the Respondent denies that he registered and used the disputed domain name in bad faith. Specifically, the Respondent asserts that he is using a private registration service to protect his personal information from identity theft and to avoid unsolicited communications. The Respondent also contends that he has been using INMUSIC in various business activities since 2005.
6. Discussion and Findings
A. 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 both Parties have had an opportunity to argue their position on this point. The Center issued a notice stating that it would preliminarily accept the Complaint filed in English, and that the Response would be accepted in either Korean or English. The Respondent subsequently filed a Response in Korean.
Since both Parties were permitted to and in fact did present their cases in the language of their preference, it appears that fairness has been maintained. Besides, the emails which the Respondent sent to the Complainant in English during July 2016, prior to the Complaint, show that the Respondent is quite proficient in English. Under these circumstances, the Panel finds it proper and fair to render this Decision in English.
B. Identical or Confusingly Similar
The Complainant has demonstrated with supporting evidence that it has rights in a US trademark registration for INMUSIC which is identical to the disputed domain name.
Based on the above, the Panel finds that the first element has been established.
C. Rights or Legitimate Interests
As the third element was not established, the Panel finds it unnecessary to address the second element.
D. Registered and Used in Bad Faith
From the record, it appears that the Respondent registered the disputed domain name in 2001, which is prior to the Complainant’s first use of its trademark since 2007. Accordingly, there is no evidence in the record to show that the disputed domain name was registered in bad faith. See WIPO Overview of WIPO Panel Views on Selected Questions, Third Edition (“WIPO Overview 3.0”), section 3.8.1.
Accordingly, the third element is not established.
For the foregoing reasons, the Complaint is denied.
Date: October 19, 2017