WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Matsushita Electric Industrial Co., Ltd., v. O Eunjung
Case No. D2001-1400
1. The Parties
The Complainant is Matsushita Electric Industrial Co., Ltd., of 1006 Oaza Kadoma, Kadoma City, Osaka 571-8501, Japan, represented by Robert E. Lyon, Esq., of Lyon & Lyon LLP, of Los Angeles, California, United States of America.
The Respondent is O Eunjung of AnamAPT 101-1905, Jinwol-Dong, Nam-Gu Kwangju, non 500-120, Republic of Korea.
2. The Domain Name and Registrar
The disputed domain name is <panasonic.net>.
The Registrar is Tierranet Inc., dba Domaindiscover.com, of San Diego, California, United States of America.
3. Procedural History
This is an administrative proceeding pursuant to the Uniform Domain Name Dispute Resolution Policy ("the Policy") adopted by the Internet Corporation for Assigned Names and Numbers ("ICANN") on August 26, 1999, the Rules for Uniform Domain Name Dispute Resolution Policy, approved by ICANN on October 24, 1999, ("the Rules") and the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy ("the Supplemental Rules") of the WIPO Arbitration and Mediation Center ("the Center").
The Complaint was received by the Center in hard copy on November 27, 2001, and by email on December 4, 2001. It was acknowledged on November 29, 2001. On November 30, 2001, registration details were sought from and provided by the Registrar, which stated that it had received a copy of the Complaint from the Complainant; the disputed domain name is registered with it in the name of the Respondent; the Policy applies to the disputed domain name; the current status of the disputed domain name is "active" and that the language of the Registration Agreement is English.
On December 7, 2001, the Center satisfied itself that the Complaint complied with all formal requirements (including payment of the prescribed fee) and that day formally dispatched copies of the Complaint by post/courier (with enclosures) to the Respondent at the address as recorded with the Registrar and by email (without attachments). The Center included with that material a letter dated December 7, 2001, containing notification of the commencement of this administrative proceeding, with copies (of the Complaint without attachments) to the Complainant, the Registrar and ICANN.
The last day specified by the Center for a Response was December 27, 2001. No Response was filed and on January 3, 2002, the Center notified the parties of the Respondentís default.
On January 8, 2002, the Center formally notified the parties of the appointment of Alan L. Limbury as panelist, Mr. Limbury having submitted a Statement of Acceptance and Declaration of Impartiality and Independence. That day the Center transmitted the case file to the Panel and notified the parties of the projected decision date of January 22, 2002.
The Panel is satisfied that the Complaint was filed in accordance with the requirements of the Rules and Supplemental Rules; payment was properly made; the Panel agrees with the Centerís assessment concerning the Complaintís compliance with the formal requirements; the Center discharged its responsibility under paragraph 2(a) of the Rules to employ reasonably available means calculated to achieve actual notice to the Respondent of the Complaint; no Response was filed and the Panel was properly constituted.
The language of the proceedings was English.
4. Factual Background
The PANASONIC name and mark has been registered by Complainant throughout the world for a large variety of goods and services in many different classifications. It was first registered in Japan on June 29, 1956, in the United States on October 29, 1968, and in Korea on April 2, 1976.
According to DomainDiscover.Comís Whois database, the record of the disputed domain name, registered by the Respondent, was created on May 7, 2001.
5. Partiesí Contentions
Complainant requests the Panel to direct that <panasonic.net> be transferred to the Complainant upon the following legal grounds:
Identity or Confusing Similarity
The domain name is identical to the registered mark PANASONIC.
Respondent should be considered as having no rights or legitimate interests in respect of this domain name because PANASONIC is a famous mark in exclusive use throughout the world. It is submitted that given the notoriety of the PANASONIC name and mark, Respondent was aware of the mark at the time of registration and, thus, registered this domain name in bad faith. It is inconceivable that Respondent could have independently adopted this identical name on its own. Respondent has made no use of this domain name or mark in connection with any bona fide offering of goods or services in any commerce. Respondent is not commonly known by this domain name nor has he sold any goods or services under this name. Neither is Respondent making any legitimate non-commercial or fair use of this domain name. There is currently no Web site nor does accessing the site direct you to any other Web site.
Complainant alleges, upon information and belief, that Respondent has registered this domain name with only an intent to sell it to Complainant or to some third party or for the purposes of preventing Complainant from using this domain name as its own. Persons attempting to access Complainant through this Web site or domain name are likely to believe it to be a site affiliated with Complainant due in significant part to the widespread fame of the PANASONIC name. Under all the aforesaid circumstances, Complainant alleges that Respondent has both registered and is now currently using this domain name in bad faith.
Complainant has been unable to determine if Respondent has engaged in any commercial activity under this Web site, nor whether Respondent has registered other domain names.
B. The Respondent
No Response was filed.
6. Discussion and Findings
Failure to File a Response
Numerous cases under the Policy have adopted and applied the principle that a respondentís failure to dispute the allegations of the complainant permits the inferences that the complainantís allegations are true and that the respondent knows its website is misleading. See, for example, Hewlett-Packard Company v. Full System (Case FA 0094637); David G. Cook v. This Domain is For Sale (Case FA0094957) and Gorstew Jamaica and Unique Vacations, Inc. v. Travel Concierge (Case FA0094925).
A somewhat broader statement of principle is contained in Reuters Limited v. Global Net 2000, Inc. (WIPO Case D2000-0441):
"The Panel draws two inferences where the Respondent has failed to submit a response: (a) "the Respondent does not deny the facts which the Complainant asserts" and (b) "the Respondent does not deny the conclusions which the Complainant asserts can be drawn from those facts"."
Under paragraph 15(a) of the Rules, the Panel must decide this Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
To qualify for cancellation or transfer, a Complainant must prove each element of paragraph 4(a) of the Policy, namely:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
Identity or Confusing Similarity
Essential or virtual identity is sufficient for the purposes of the Policy: see The Stanley Works and Stanley Logistics, Inc v. Camp Creek. Co., Inc. (WIPO Case No. D2000-0113), Toyota Jidosha Kabushiki Kaisha d/b/a Toyota Motor Corporation v. S&S Enterprises Ltd. (WIPO Case No. D2000-0802); Nokia Corporation v. Nokiagirls.com a.k.a IBCC (WIPO Case No. D2000-0102) and Blue Sky Software Corp. v. Digital Sierra Inc. (WIPO Case No. D2000-0165).
The Panel finds the disputed domain name is identical to Complainantís trademark PANASONIC.
Complainant has established this element.
Complainant has not authorized Respondent to use its famous trademark nor to register the disputed domain name. Complainant asserts Respondent could not have independently adopted this identical name; that Respondent has made no use of this domain name or mark in connection with any bona fide offering of goods or services in any commerce; that Respondent is not commonly known by this domain name nor has he sold any goods or services under this name; neither is Respondent making any legitimate non-commercial or fair use of this domain name.
These circumstances are sufficient to constitute a prima facie showing by Complainant of absence of rights or legitimate interests in the disputed domain name on the part of Respondent. The evidentiary burden, therefore, shifts to Respondent to show by concrete evidence that it does have rights or legitimate interests in that name: Do The Hustle, LLC v. Tropic Web (WIPO Case No. D2000-0624) and the cases there cited.
In the absence of a Response, the Panel finds Complainant has established this element. Respondent has no rights or legitimate interests in the disputed domain name.
Bad Faith Registration and Use
Complainant has submitted that given the notoriety of the PANASONIC name and mark, Respondent was aware of the mark at the time of registration and, thus, registered this domain name in bad faith. Further, that Respondent has registered this domain name with only an intent to sell it to the Complainant or to some third party or for the purposes of preventing the Complainant from using this domain name as its own. The disputed domain name has not been put to any use.
In the absence of a Response, the Panel infers that Respondent was aware of the Complainantís famous mark when he registered the disputed domain name and that sale to the Complainant at a profit was his primary purpose in doing so. Under paragraph 4(b)(i) of the Policy, this is evidence of both bad faith registration and bad faith use.
The Panel finds that Respondent has acted in bad faith both in registration and use of the disputed domain name.
Complainant has established this element.
Pursuant to paragraphs 4(i) of the Policy and 15 of the Rules, the Panel directs that the domain name <panasonic.net> be transferred to Complainant.
Alan L. Limbury
Dated: January 20, 2002