WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
3 Brasseurs International v. Yang Kyung Won
Case No. D2015-0312
1. The Parties
The Complainant is 3 Brasseurs International of Villeneuve D'Ascq, France, represented by Genesis Avocats, France.
The Respondent is Yang Kyung Won of Seoul, Republic of Korea.
2. The Domain Name and Registrar
The disputed domain name <3brasseurs.com> is registered with Megazone Corp., dba HOSTING.KR (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on February 25, 2015. On February 25, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 27, 2015, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
On March 2, 2015, the Center notified the Parties in both English and Korean that the language of the Registration Agreement for the disputed domain name was Korean. On March 3, 2015, the Complainant requested for English to be the language of the proceeding. On the same day, the Respondent requested for Korean to be the language of the proceeding.
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").
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceeding commenced on March 6, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was March 26, 2015. The Respondent did not submit any response. Accordingly, the Center notified the parties about the commencement of panel appointment process on March 27, 2015.
The Center appointed Ik-Hyun Seo as the sole panelist in this matter on April 13, 2015. 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.
Based on the deadline set forth in paragraph 15 of the Rules, a decision was to be issued by the Panel no later than April 27, 2015. However, due to exceptional circumstances experienced by the Panel, the Panel extended the deadline to May 11, 2015.
4. Factual Background
The Complainant is a French chain of microbreweries and restaurants which has over 40 locations worldwide. The Complainant has trademark registrations for 3 BRASSEURS in plain text, as well as stylized and with additional elements, a number of which predate the Respondent's registration in the disputed domain name. The Complainant also owns registrations to domain names based on its 3 BRASSEURS trademark which predate the Respondent's registration in the disputed domain name, including <3brasseurs.fr>, <3brasseurs.org> and <3brasseurs.eu>.
The Respondent appears to be a Korean individual with an address in the Republic of Korea.
5. Parties' Contentions
The Complainant contends that the disputed domain name is identical to marks in which the Complainant has rights. More specifically, the Complainant asserts that it has registrations to 3 BRASSEURS and 3 BRASSEURS-based marks in a number of jurisdictions including France, Italy, and Poland, and that the disputed domain name is identical thereto.
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. The Complainant notes that prior to the Complainant's contacts with the Respondent, the disputed domain name was linked to a parking service and displayed an advertisement offering the disputed domain name for sale, which shows the Respondent's intent to benefit commercially from the disputed domain name.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
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 accept the Complaint filed in English, and that the Response would be accepted in either Korean or English. The Respondent subsequently chose to not file a Response.
Given the fact that the Complainant is based in France and the Respondent is based in the Republic of Korea, English would appear to be the fairest neutral language for rendering this decision. Further, by contacting the email address provided at the website linked to the disputed domain name, the Complainant had a series of email communications with the Respondent, or rather, an individual who identified himself as Mr. Yaming. The domain of this email address is registered to the Respondent, so it seems to the Panel that the name used in the above email communication which was different from the named Respondent in the proceeding is another name of the Respondent, or someone acting on behalf of the Respondent. The Respondent/Mr. Yaming communicated with the Complainant in English and demonstrated no apparent difficulties in the language. Besides, both the Respondent and the Complainant 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.
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 holds a number of trademark registrations for 3 BRASSEURS in various forms, including with stylization and additional elements, and most importantly, in plain simple text which is identical to the disputed domain name. The lack of space in the disputed domain name is inconsequential since embedded spaces are not permissible in domain names.
For the reasons mentioned above, the Panel finds that the first element has been established.
C. 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 its rights or legitimate interests in the disputed domain name. However, the Respondent in this case has chosen to file no Response to these assertions by the Complainant, and 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.
D. Registered and Used in Bad Faith
The Panel finds that there are more than sufficient reasons to find bad faith in this case.
For one, there does not seem to be any logical reason for the Respondent to have obtained registration for the disputed domain name which translates to "3 brewers" in English. Further, the disputed domain name was at one point linked to a parking service, and now displays information on automobiles, with content scraped from another source. These uses are not bona fide uses by the Respondent. Rather, such uses are often telling indications of a registrant waiting for an opportunity to sell the domain name for a profit.
More specifically, the Respondent/Mr. Yaming linked the disputed domain name with a parking service and displayed an advertisement offering it for sale. Moreover, the Respondent/Mr. Yaming replied to the Complainant's cease and desist letter with the colorful and revealing message, "My shoes are not for sale, but if someone on the street offers me enough money for them, I'll walk home barefoot. If your offer price is too low, we cannot guarantee a reply." This is obviously a solicitation for a significant amount of money – certainly more than the Complainant's offer of USD 500 which the Respondent/Mr. Yaming later rejected.
Further, the Respondent and Mr. Yaming have each been named as the respondent in a number of UDRP proceedings in the past – well over a dozen in total – including but not limited to LEGO Juris A/S v. Yang Kyung Won, WIPO Case No. D2011-1124 (<legoonline.com>), Target Brands, Inc. v. Yang Kyung Won, WIPO Case No. D2014-1117 (<targetmobile.com>), Deloitte Touche Tohmatsu v. Richard Yaming/Trademark Worx, LL, WIPO Case No. D2014-1360 (<deloittetax.com>) and Giorgio Armani S.p.A and Giorgioa Armani S.p.a. Milan, Swiss Branch Mendrisio v. Richard Yaming, WIPO Case D2011-2233 (<armanihotel.com>). In all prior cases, the panels found both the Respondent and Mr. Yaming to have registered and used the domain names in bad faith, and ordered that they be transferred to the complainants.
For the reasons given above, the Panel finds that the third and final element has been sufficiently 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 <3brasseurs.com> be transferred to the Complainant.
Date: May 11, 2015