WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Koninklijke KPN N.V. v. Liu Yu Jie
Case No. D2016-0139
1. The Parties
The Complainant is Koninklijke KPN N.V. of Hague, the Netherlands, represented internally.
The Respondent is Liu Yu Jie of Zhoukou, Henan, China, self-represented.
2. The Domain Name and Registrar
The disputed domain name <kpn.one> is registered with Web Commerce Communications Limited dba WebNic.cc (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on January 22, 2016. On January 22, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 22, 2016, 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.
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 and 4, the Center formally notified the Respondent of the Complaint, and the proceeding commenced on February 3, 2016. In accordance with the Rules, paragraph 5, the due date for Response was February 23, 2016. The Response was filed with the Center on February 19, 2016.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on March 4, 2016. 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 is a company incorporated in the Netherlands and a provider of telecommunications services in the Netherlands since 1913. The Complainant is the leading telecommunications service provider in the Netherlands. The Complainant owns several registrations in Europe for its word and figurative trade mark KPN (the "Trade Mark"), the earliest dating from 1993. The Trade Mark is a well-known trade mark in the Netherlands.
The Respondent is an individual resident in China.
C. The Disputed Domain Name
The disputed domain name was registered on November 15, 2015.
D. Use of the Disputed Domain Name
The disputed domain name has been used in respect of a film directory website for certain Chinese language films (the "Website").
5. Parties' Contentions
The Complainant contends that the disputed domain name is identical or confusingly similar to the Trade Mark, the Respondent has no rights or legitimate interests in respect of the disputed domain name, and the disputed domain name has been registered and is being used in bad faith.
The Respondent contends that the disputed domain name is not identical or confusingly similar to the Trade Mark, the Respondent has rights or legitimate interests in respect of the disputed domain name, and the disputed domain name has not been registered and used in bad faith.
6. Discussion and Findings
The Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail.
A. Identical or Confusingly Similar
The Panel finds that the Complainant has rights in the Trade Mark acquired through use and registration.
The disputed domain name, discounting the suffix ".one", is identical to the Trade Mark.
The Respondent asserts the Trade Mark is not well-known in China and has not been registered in China. This is not the relevant test under the UDRP, which simply requires the Complainant to establish rights in the relevant trade mark irrespective of the jurisdiction in which the mark is registered and/or used.
The Panel therefore finds that the disputed domain name is identical to the Trade Mark.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a disputed domain name:
(i) before any notice to the respondent of the dispute, the respondent's use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent (as an individual, business, or other organization) has been commonly known by the disputed domain name even if the respondent has acquired no trade mark or service mark rights; or
(iii) the respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.
The Complainant has not authorised, licensed, or permitted the Respondent to register or use the disputed domain name or to use the Trade Mark. The Panel finds on the record that there is therefore a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, and the burden is thus on the Respondent to produce evidence to rebut this presumption.
The Respondent has failed to show that it has acquired any trade mark rights in respect of the disputed domain name or that the disputed domain name has been used in connection with a bona fide offering of goods or services. The Respondent has offered to sell the disputed domain name to the Complainant for USD 1,600. This, of itself, strongly suggests a lack of rights or legitimate interests and does not sit well with the Respondent's assertions that the Respondent has been making a legitimate and noncommercial use of the disputed domain name in respect of the Website.
The Respondent claims that the Website is noncommercial, and has been set-up as a film directory website for Chinese language speakers. The Respondent asserts that the disputed domain name comprises the acronym for the Chinese characters "看片呢" (kan, pian, ne), a colloquial expression which means "watch movies". The Respondent has not however adduced any evidence to support the Respondent's assertion that the Website is noncommercial and it would appear from the nature and content of the Website that the Respondent may well be obtaining some commercial benefit from setting up and using the Website (although, in fairness, the Panel notes there is no direct evidence on the record in this regard). The Website does however bear all the hallmarks of a website from which the website owner is likely deriving some form of revenue, whether through "pay-per-click" revenue, or other third party advertising revenue, or otherwise.
Even if the Respondent has not obtained any commercial benefit from its registration of the disputed domain name and use of the Website, the Panel does not find the Respondent's explanation regarding the genesis of the disputed domain name convincing. If it was intended to register and make legitimate noncommercial use of the disputed domain name as a representation of "看片呢" (kan, pian, ne), then the appropriate domain name would contain the full pinyin Latin text of "看片呢" (<kanpianne.one>), not its abbreviated acronym.
The Complainant asserts that the Respondent could have known easily (and probably did know) by doing simple Internet searches that the Trade Mark is a well-known mark owned by the Complainant. The Panel considers that all of the above factors, including in particular the fact the disputed domain name is identical to the Trade Mark and the notoriety of the Trade Mark, support the conclusion that the Respondent likely knew of the Complainant and of its rights in the Trade Mark at the time of registration of the disputed domain name.
For the above reasons, the Panel determines the Respondent has not been making a legitimate noncommercial or fair use of the disputed domain name.
There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name.
Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
In light of the offer for sale of the disputed domain name to the Complainant for USD 1,600, an amount likely far in excess of the Respondent's out-of-pocket expenses related to the disputed domain name, the Panel finds the requisite element of bad faith has been satisfied under paragraph 4(b)(i) of the Policy.
For the foregoing reason, the Panel has no hesitation in concluding that the disputed domain name has been registered and is being used in bad faith.
D. Reverse Domain Name Hijacking
The Respondent asserts that the Complainant has acted maliciously in commencing this proceeding. The exact wording of the Respondent's submission in this regard is as follows:
"The complainant claims can only be purchased 150usd domain name, not be complaints to the wipo forced transfer, and has stressed this point (not in respect of the arbitration i do you mean you are English standards and legal knowledge is not our professional. There is hope that the mentality of suspects) which is supported by the intimidation of the person being complained against the suspect. As a result of heavy work and polished look at messages. The Chinese people have not read the message of the habits, thus causing the complainant complaints to the wipo. There is a suspected malicious arbitration!"
The Panel rejects the Respondent's assertions in this regard. There is no evidence to support a finding of reverse domain name hijacking or other malicious conduct on the part of the Complainant.
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 <kpn.one> be transferred to the Complainant.
Sebastian M.W. Hughes
Dated: March 18, 2016