WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Farmako GmbH v. beats
Case No. D2019-0926
1. The Parties
The Complainant is Farmako GmbH, Germany, internally represented.
The Respondent is beats, Republic of Korea.
2. The Domain Name and Registrar
The disputed domain name <farmako.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 April 23, 2019. On April 24, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 2, 2019, 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 May 8, 2019, 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 May 8, 2019, the Complainant requested for English to be the language of the proceeding. The Respondent did not submit any request regarding the language of the proceeding. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amended Complaint on May 22, 2019.
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, and the proceedings commenced on June 3, 2019. In accordance with the Rules, paragraph 5, the due date for Response was June 23, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 24, 2019.
The Center appointed Ik-Hyun Seo as the sole panelist in this matter on July 1, 2019. 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 German pharmaceutical company established in 2018. In 2019, the Complainant filed trademark applications for FARMAKO in several jurisdictions and obtained registration for the trademark in Germany (i.e., Registration No. 302019008735, registered on May 27, 2019).
The Respondent appears to be a Korean entity with a residence in the Republic of Korea.
The disputed domain name was registered on July 19, 2008, and resolves to a Sedo parking site.
5. Parties’ Contentions
The Complainant contends that it has rights to the mark FARMAKO which is identical to the disputed domain name.
The Complainant also contends that the Respondent has no rights or legitimate interests in the disputed domain name.
Finally, the Complainant contends that the Respondent only acquired the disputed domain name in order to sell it to the highest bidder and that such sale will disrupt the Complainant’s business and mislead consumers. The Complainant also contends that the Respondent has made no use of 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 the Notification in Korean and English 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 not to submit a Response.
Given the fact that the Complainant is based in Germany and the Respondent is based in the Republic of Korea, English would appear to be the fairest neutral language for rendering this decision. Besides, both Parties were given the opportunity to submit arguments in the language of their preference, but the Respondent neither raised an objection as to language nor submitted any arguments whatsoever in these proceedings.
Under these circumstances, the Panel finds it proper and fair to render this decision in English.
B. Identical or Confusingly Similar
As the disputed domain name is identical to the Complainant’s trademark and trade name, the Panel finds that the first element has been established.
C. Rights or Legitimate Interests
On the basis of the present record, there is no evidence that the Respondent improperly registered or obtained the disputed domain name after the Complainant had come into existence. Therefore, it is difficult for the Panel to find that the Complainant has met its burden here with respect to rights or legitimate interests in the disputed domain name.
D. Registered and Used in Bad Faith
It would appear that the Respondent has a history of cybersquatting, but the record in this case does not support a finding of bad faith. The Respondent registered the disputed domain name a full ten years before the Complainant presumably started using FARMAKO as a trade name and trademark, and there is no evidence to suggest that the Respondent knew of the Complainant at the time of registration. Further, the Respondent’s offer to sell the disputed domain name and its use of the disputed domain name for Sedo parking, without additional supporting factors, do not necessarily indicate bad faith here. Also, the Complainant argues that the Respondent reneged on a contract for sale of the disputed domain name. The record does not sufficiently show that such a contract was actually entered into by the Parties, and even it were the case, remedies for any breach would need to be resolved through the relevant courts rather than these proceedings.
Therefore, the Panel finds that this element has not been established.
For the foregoing reasons, the Complaint is denied.
Date: July 15, 2019