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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Hang Seng Data Services Limited v. Power M Investment Limited
Case No. D2000-0653
1. The Parties
The Complainant is Hang Seng Data Services Limited a company incorporated under the laws of Hong Kong with its registered office at 83 Des Voeux Road, Central, Hong Kong (SAR), China. The Respondent is Power M Investment Limited of PO Box 98953, Tsim Sha Tsui Post Office, Hong Kong (SAR), China. The email address for the Respondent is "firstname.lastname@example.org". There is email correspondence passing between the Respondent and the Complainant prior to the commencement of the current administrative proceedings in which a Mr John Griffiths purports to act for the Respondent. Mr Griffiths email address is given as "email@example.com".
The Complainant is represented by Messrs Johnson Stokes & Master, 19th Floor, Prince’s Building, 10 Chater Road, Central, Hong Kong (SAR), China (Miss Rosita Li).
2. The Domain Name and Registrar
The disputed domain name is "hangsengindex.org". The registrar for the domain name is Network Solutions Inc.
3. Procedural History
The Complaint was received by the WIPO Arbitration and Mediation Center by hard copy on June 22, 2000 and by email version on June 27, 2000. Acknowledgement of the receipt of the complaint was served on July 27, 2000. The Panel accepts that in accordance with the Rules the Complainant has properly complied with the necessary formal requirements including payment of the requisite fee.
Notification of the complaint and commencement of the administrative proceedings was given on July 5, 2000 to the Respondent at its email addresses "firstname.lastname@example.org" and to its technical contact and zone contact "email@example.com". The complaint was also served by post and courier and by fax. The Panel has seen copies of the certificates of posting and fax sheets. Accordingly the Panel accepts that the Respondent was properly served.
No response having been received from the Respondent, notification of the Respondent’s default was served on July 25 and subsequently on August 24, 2000 notification was given of the appointment of an administrative panel consisting of a three member panel; Clive Thorne, Presiding Panelist, Marylee Jenkins, Panelist and Clark Lackert, Panelist. All three panelists have submitted a statement of acceptance and a declaration of impartiality and independence.
The original date for submission of the panel’s decision was September 6, 2000. At the request of the Presiding Panelist an extension of time was sought until September 13, 2000.
4. Factual Background
The Complainant is a subsidiary company of Hang Seng Bank Limited which is Hong Kong’s second largest home grown bank. The Hang Seng Bank is a capitalised commercial bank focusing on Hong Kong and the Chinese main land. The bank specialises in a wide range of retail banking, corporate banking and treasury services.
The Complainant has registered the mark Hang Seng Index in respect of different services in various countries including the United States and has registered or applied for other marks incorporating the words Hang Seng Index in over 20 countries and regions. A list of the Complainants world wide registrations and copies of relevant registration certificates for the mark "Hang Seng Index" in class 36 in the United States (registration number 1522044), in the Benelux countries (registration number 521643) and in Hong Kong (registration number 7542/996) are provided as Annex D to the complaint.
This matter arose as a result of a letter from the Complainant’s solicitors dated January 20, 2000 to the Respondent at the address indicated in the Network Solutions WHOIS record as PO Box 98593, Tsim Sha Tsui, Post Office, Hong Kong. That letter was returned by the Post Office. Subsequently there was email correspondence passing between a Mr John Griffiths who purports to be the Respondent’s representative, this is set out at Annex B. Mr Griffiths claimed that the Respondent and/or himself belonged to a "newly established group of internet consultants" who "assist clients to deal with sensitive issues such as domain name issues on line.....". Mr Griffiths did not provide any postal address or fax number for correspondence. In an email from Mr Griffiths dated February 1, 2000 he stated that "his client has no plan to activate the said domain in the short term and is willing to transfer the domain to the Complainant subject to a reasonable transfer fee". In a without prejudice email message of February 27 which is included with the bundle Mr Griffiths stated that his client is willing to help the Complainant to settle the outstanding case providing the Complainant agrees to pay a handling fee of US$ 10,000.
In the absence of any evidence from the Respondent the Panel is prepared to accept the Complainants evidence. Further in the absence of any objection to the inclusion of the without prejudice email of February 27, 2000 the Panel is prepared to take notice of the contents of that email message.
5. Parties Contentions and Findings
The Complainant asserts in accordance with paragraph 4(a) of the Policy:-
(i) The domain name is identical or confusingly similar to a trade mark or service mark to which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interest in respect of the domain name; and
(iii) The domain name was registered and is being used in bad faith.
There is no response and no contentions advanced on behalf of the Respondent.
(i) The domain name is identical or confusingly similar to a trade mark or service mark to which the Complainant has rights.
The Panel accepts the Complaints contention. In particular the Panel has seen evidence of the Complainant’s world wide registrations for the mark "Hang Seng Index" which is identical to the domain name in dispute. The Complainant succeeds on this point.
(ii) The Respondent has no rights or legitimate interest in respect of the domain name.
The Complainant asserts that it succeeds in relation to this element because:-
(a) The company name of the Respondent is different from the domain name it has registered and is therefore not commonly known by the domain name.
(b) The "hangsengindex.org" website the subject of the reference is inactive, there is therefore no evidence of the Respondent’s use or demonstrable preparations to use the domain name with a bona fide offering of goods or services
(c) The Respondent has failed to establish and provide evidence substantiating its right to use the mark "hangsengindex" in any way.
In the absence of any evidence from the Respondent the Panel is prepared to accept the Complainant’s submission in respect of this element and finds that the Respondent has no rights or legitimate interest in respect of the domain name. The web site is essentially a "parking website".
(i) The domain name was registered and is being used in bad faith.
The Complainant relies upon paragraph 4(b) of the policy which sets out certain circumstances which without limitation if found by the Panel to be present shall be evidence of the registration and use of the domain name in bad faith. In particular the Complainant expressly relies upon paragraph 4(b)(i) to the effect that there are:-
"Circumstances indicating that you (the Respondent) have registered or you (the Respondent) have acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the Complainant who is the owner of the trade mark or service mark or to a competitor of the Complainant, for valuable consideration in excess of your documented out of pocket costs directly relating to the domain name."
As evidential support for this contention the complainant relies upon the "handling fee of US$ 10,000 referred to by Mr Griffiths in his without prejudice email message of February 27. There can be no doubt that this is clearly in excess of the Respondent’s out of pocket costs directly relating to the domain name. The Panel therefore finds that the domain name has been registered and is being used in bad faith by the Respondent.
It follows that the Complainant has succeeded in proving all three of the elements within paragraph 4(a) of the policy and the Panel therefore finds for the Complainant.
The Panel finds for the Complainant and orders as requested by the Complainant that the domain name "hangsengindex.org" be transferred to the Complainant in accordance with paragraph 4(i) of the Policy.
Clive Duncan Thorne
Marylee Jenkins Clark Lackert