WIPO Arbitration and Mediation Center
Julbo V. Hyunjong Lee
Case No. D2008-0525
1. The Parties
The Complainant is JULBO, of Longchaumois, France, represented by Cabinet Greffe, France.
The Respondent is Hyunjong Lee, of Cheongju, Chungcheongbuk-do, Republic of Korea.
2. The Domain Name and Registrar
The disputed domain name <julbo.com> is registered with Korea Information Certificate Authority Inc., doing business as DomainCA.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the ¡°Center¡±), initially by email, on April 4, 2008. On April 7, 2008, the Center transmitted by email to Korea Information Certificate Authority Inc. d/b/a DomainCA.com a request for registrar verification in connection with the domain name at issue. On April 8, 2008, Korea Information Certificate Authority Inc. d/b/a DomainCA.com transmitted by email to the Center its verification response confirming that the Respondent 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¡±), 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 May 2, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was May 22, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent¡¯s default on May 23, 2008.
The Center appointed Professor Ilhyung Lee as the sole panelist in this matter on June 5, 2008. 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.
In a previous proceeding administered by the Center, the Complainant had filed a complaint against another party – Jong-Guk Lee – and sought transfer of the same domain name that is in dispute in the present case, <julbo.com>. The registrar in that proceeding was YesNIC. By decision dated September 11, 2006, Panelist Ik-Hyun Seo ordered that the domain name be transferred to the Complainant. Julbo v. Lee, Jong-Guk, WIPO Case No. D2006-0870. It is not clear why the transfer of the domain name was not completed as directed, or how subsequently, the Respondent in the present case was able to register the domain name with the registrar here.
The Panel determines that the language of the proceeding will be English, as discussed herein.
4. Factual Background
The Complainant is a French limited liability company that manufactures and markets eyewear, especially sunglasses. It has registered the trademark JULBO for glasses, sunglasses, or sports glasses, in over fifty countries, including France (on April 24, 1989), the United States of America (on March 28, 2000), and the Republic of Korea (on March 7, 2006). The Complainant also registered various domain names that include the JULBO designation, including <julbo.fr> (on April 27, 1998) and <julboinc.com> (on July 22, 2002).
The Respondent registered the disputed domain name <julbo.com> on November 10, 2007, with Korea Information Certificate Authority Inc. d/b/a DomainCA.com.
5. Parties¡¯ Contentions
The Complainant contends that: (i) the disputed domain name is identical or confusingly similar to the mark in which the Complainant has rights; (ii) the Respondent has no rights or legitimate interests in respect of the domain name; and (iii) the domain name has been registered and is being used in bad faith.
In addition, the Complaint states that: JULBO is a well-known trademark worldwide; the Respondent ¡°has never really used this domain name¡±; the website for the domain name ¡°only displays a few words in Korean¡±; and the Respondent ¡°registered the . . . domain name in order to prevent JULBO Company from reflecting its trade mark in a corresponding domain name.¡± Complaint, at 7-8.
The Respondent did not reply to the Complainant¡¯s contentions.
Under paragraphs 5(e) and 14(a) of the Rules, the Panel may decide the dispute based on the Complaint. The Panel may also draw appropriate inferences from such default, according to paragraph 14(b) of the Rules.
6. Discussion and Findings
Initially, the Panel must determine the language of the proceeding. Paragraph 11(a) of the Rules provides that the language of the Registration Agreement shall be the language of the administrative proceeding, unless otherwise agreed by the parties. The same provision also states that the determination of the language of the proceeding is ¡°subject to the authority of the Panel . . ., having regard to the circumstances of the administrative proceeding.¡±
Here, the registrar has confirmed to the Center that the language of the Registration Agreement is Korean. The Center transmitted to the Respondent the Notice of Complaint and Commencement of Administrative Proceeding, in both Korean and English. In its cover message, the Center informed, again in both Korean and English, of the Complainant¡¯s request to proceed in English, and invited the Respondent to contact the Center within one week if it experienced ¡°language difficulties with the Complaint.¡± The Center instructed, in both languages, ¡°If we do not hear from you by this date, we will proceed on the basis that you have no objection to the Complainant¡¯s request that English be the language of the proceedings.¡±
The Respondent has failed to participate in the proceeding, and has been notified of its default. The Complainant, the only remaining party, has requested that the proceeding be in English. Taking into account all the circumstances, the Panel agrees.
A. Identical or Confusingly Similar
JULBO appears to be an arbitrary or fanciful mark for eyeglasses, sunglasses, and sports glasses. The Complainant explains that the mark is ¡°a contraction of its founder¡¯s name, ¡®Jules Baud.¡¯¡± Complaint, at 5. The Complainant has rights in the JULBO mark; the disputed domain name <julbo.com> is confusingly similar to the mark.
The Panel finds that the Complainant has satisfied the first element of paragraph 4(a) of the Policy.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy states that a respondent may demonstrate rights or legitimate interests in the domain name, by demonstrating evidence of:
(i) before any notice to [the respondent] of the dispute, [the respondent¡¯s] use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) [the respondent being] commonly known by the domain name, even if [the respondent has] acquired no trademark or service mark rights; or
(iii) [the respondent] making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
There is no evidence in the record to support any of these possibilities. The circumstances described in paragraph 4(c)(i) and (c)(iii) are plainly absent here. Paragraph 4(c)(ii) presents an opportunity for discussion of some interest, but short of establishing the Respondent¡¯s rights or legitimate interests. Internet users who type in the domain name are taken to a website with Korean text. Appearing prominently at the top of the page is the phrase – Áñ°Å¿î º¸µðºôµù – or in English transliteration, jul-guh-oon bo-dy-buil-ding, with a basic translation of ¡°happy body building.¡± Perhaps the Respondent would argue that the domain name combines the first characters of the ¡°Áñ°Å¿î¡± and ¡°º¸µðºôµù¡± phrases, or ¡°jul¡± and ¡°bo,¡± respectively. But this falls far short of evidence that the Respondent has been commonly known by the domain name.
Importantly, paragraph 4(c) provides an illustrative, and not exhaustive, list of ways in which the Respondent may demonstrate rights or legitimate interests in respect of the domain name. Nevertheless, the Panel is not able to find any circumstances that would demonstrate the Respondent¡¯s rights or legitimate interests in <julbo.com>.
The Panel finds that the second element is satisfied.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides four examples of how ¡°registration and use of a domain name in bad faith¡± can be shown. The Complainant argues that the Respondent ¡°only registered the ¡®Julbo.com¡¯ domain name in order to prevent [the Complainant] from reflecting its trade mark in a corresponding domain name.¡± Complaint, at 8. This circumstance is described in paragraph 4(b)(ii). Yet the provision adds the requirement, ¡°provided that [the Respondent has] engaged in a pattern of such conduct.¡± The Complaint does not further elaborate on the requisite ¡°pattern¡± of conduct.
Nevertheless, the Panel finds bad faith to be present under paragraph 4(b)(iv), in that ¡°by using the domain name, [the Respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the Respondent¡¯s] web site . . ., by creating a likelihood of confusion with the complainant¡¯s mark as to the source, sponsorship, affiliation, or endorsement¡± of the Respondent¡¯s website. In this regard, the fact that the Respondent¡¯s website contains mostly Korean text is of little consequence. See AT&T Corp. v. Amjad Kausar, WIPO Case No. D2003-0327 (¡°The Panel does not . . . consider it necessary to find any sustained confusion of users as to the Complainant¡¯s association with the sites linked with the domain names after the initial moment of calling up the pages to which the domain names resolve.¡±) The Respondent is not assisted by its failure to submit a Response or attempt any explanation for its registration and use of this rather particular domain name.
The Panel finds that the third element of registration and use in bad faith is present.
The Panel concludes that the Complainant has established the requisite elements of paragraph 4(a) of the Policy, as discussed above. Thus, under different factual circumstances, the Panel reaches the same result as did the previous panel in a proceeding involving the same domain name. Julbo, supra.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <julbo.com> be transferred to the Complainant.
Dated: June 19, 2008