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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Zoomp Confecções Ltda. v. Jung Y. Lee

Case No. D2000-0904

 

1. The Parties

Complainant is:
Zoomp Confecções Ltda.
Avenida Tucunarй, nє 222 – Bairro Tamborй, City of Barueri
State of São Paulo, Brazil

Represented by:
Luiz Henrique O. do Amaral, Esq.
Joaquim Eugenio Goulart, Esq.
Rua Marquкs de Olinda, nє 70, Botafogo
City of Rio de Janeiro
State of Rio de Janeiro, Brazil

Respondent is:
Mr. Jung Y. Lee
Rua Carnomil, nє 157, Pari, City of São Paulo
State of São Paulo, Brazil

 

2. The Domain Name(s) and Registrar(s)

The domain name at issue is <zoomp.com>. The registrar is Network Solutions, Inc. (the "Registrar") 505 Huntmar Park Drive, Herndon, Virginia 20170-5139 USA.

 

3. Procedural History

The WIPO Arbitration and Mediation Center (the "Center") received the Complaint on July 31, 2000, by email and on August 07, 2000, in hardcopy. The Complainant paid the required fee.

On August 08, 2000, the Center sent an Acknowledgement of Receipt of the Complaint to the Complainant and a deficiency notification. On the same date the Complainant amended the Complaint, as requested by the Center , by e-mail (August 08, 2000) and on August 16, 2000, in hardcopy.

On August 14, 2000, the Center received the Network Solutions response to its request for registrar verification, where the registrar confirmed, inter alia , that it is the registrar of the domain name in dispute, that <zoomp.com> is registered in the Respondentґs name and it has on "Active" status.

On August 17, 2000, the Center verified that the Complaint satisfies the formal requirements of the ICANN Uniform Domain Name Dispute Resolution Policy (the "Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules"). On August 17, 2000, the Center also sent to the Respondent, with a copy to the Complainant, a notification of the administrative proceeding together with copies of the Complaint. This notification was sent by the methods required under paragraph 2(a) of the Rules. The formal date of the commencement of this administrative proceeding is August 17, 2000.

On September 15, 2000, the Center sent a Notification of Respondent’s Default. No Response has been received by the Respondent.

After receiving a completed and signed Statement of Acceptance and Declaration of Impartiality and Independence dated September 25, 2000 , the Center notified the parties of the appointment of a single-arbitrator panel consisting of Luiz Edgard Montaury Pimenta, Esq. (the "Presiding Panelist").

 

4. Factual Background

The Trademark

The complaint is based on the ownership of the trademark ZOOMP, created and first used in 1974, by Mr. Renato Kherlakian, who is the founder of the Complaint. Since then, Complainant has continuously used in commerce the mark ZOOMP in connection with manufacture and retail of clothing articles and accessories in general and promoted it, including the identification of its web site www.zoomp.com.br.

According to the documents filed as Annexes 06 and 07 , the Complainant is the owner of 14 trademark registrations for trademark "ZOOMP" in Brazil, as described below:

(1) Serial No.: 006.524.613
Granting Date: March 10, 1977
Local Class: 25(10,20,30)

(2) Serial No.: 811.572.285
Granting Date: November 19, 1985
Local Class: 25(10)

(3) Serial No.: 812.620.453
Granting Date: April 05, 1988
Local Class: 25(10,20,30)

(4) Serial No.: 813.288.720
Granting Date: February 05, 1991
Local Class: 03(20)

(5) Serial No.: 814.861.474
Granting Date: January 05, 1991
Local Class: 25(10,20,30)

(6) Serial No.: 814.861.482
Granting Date: April 11, 1995
Local Class: 28(10,20)

(7) Serial No.: 814.982.093
Granting Date: April 15, 1992
Local Class: 40(15,70)

(8) Serial No.: 814.982.107
Granting Date: December 10, 1991
Local Class: 16(10,20,30)

(9) Serial No.: 814.982.115
Granting Date: January 21, 1992
Local Class: 14(30)

(10) Serial No.: 814.982.123
Granting Date: August 20, 1991
Local Class: 09(05,50)

(11) Serial No.: 815.054.890
Granting Date: October 19, 1999
Local Class: 40(15,70)

(12) Serial No.: 815.054.912
Granting Date: November 12, 1991
Local Class: 16(10,20)

(13) Serial No.: 815.054.920
Granting Date: October 15, 1991
Local Class: 14(30)

(14) Serial No.: 815.054.939
Granting Date: February 21, 1996
Local Class: 09(40)

The Complainant also alleges that it has obtained several registrations in many other countries (such as Argentina, Chile, China, Colombia, Korea, Ecuador, Indonesia, Italy, Japan, Panama, Taiwan, Uruguay and Venezuela) and has also filed several applications for the trademark "ZOOMP" worldwide.

 

The Complaint

The Complainant submitted the complaint regarding the domain name <zoomp.com> based on the following:

(a) The domain name <zoomp.com> is identical, and therefore confusingly similar to the trademark ZOOMP, whereas:

(i) There is a similitude, in appearance, pronunciation and sound to the ZOOMP mark.

(b) Respondent has no legitimate interest in the contested domain name, whereas:

(i) Complainant has been using the name "ZOOMP" since 1974. Such expression is registered as a mark since 1977 and all the foregoing registrations are fully in force;

(ii) Both Complainant and Respondent live in the City of São Paulo, Brazil and a person who lives in Brazil must knowsComplainantґs trademark and its reputation, so the identity between the domain name and the name and trademark of the Complainant is not a coincidence or act of fair competition;

(iii) The Respondent owns 13 domain names registered before the Register all of them identical to famous and well-known marks of other Brazilian entities.

(iv) Respondent is engaged in registering domain names with no kind of authorization, since it has registered several famous Brazilian trademarks on which it has no rights;

(v) The Respondent has no authorization from the Complainant to use its trademark "ZOOMP";

(vi) Respondent has no registration for trademark "ZOOMP" and furthermore, has never used such expression to identify his activities;

(vii) Respondent does not use <zoomp.com> domain name in connection with an active web site;

(viii) The Respondent is not making a legitimate noncommercial or fair use of the domain name;

(ix) The word "ZOOMP" is an invented word which has no significance in Portuguese, English nor, apparently, in any other language.

(c) The <zoomp.com> domain name has been registered and is being used in bad faith, whereas:

(i) Respondent has several domain names currently registered before the Register. All these domain names are absolutely identical to very famous and well known marks of other Brazilian companies;

(ii) Respondent has registered the above mentioned domain names in a short period. Several of them have been registered in the same day.

(iii) None of these domain names is are being used in connection with an active Web site,

(iv) 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 trademark , for valuable consideration in excess of your document out-of-pocket costs directly related to the domain name;

(v) Complainant is the only entity entitled to use trademark "ZOOMP" and is also the only entity which effectively uses such trademark;

(vi) Respondent does not conduct any kind of commercial business under trademark "ZOOMP";

(vii) Complainant has sent a warning letter to the Respondent stating its exclusive rights over the expression "ZOOMP" and requesting the assignment of the disputed domain name to the Complainant;

(viii) Respondent did not Reply such letter;

(ix) Later, a representative of the Complainant has contacted Respondent by telephone reiterating Complainantґs rights over the expression "ZOOMP" requesting the assignment of the domain name in issue. The Complainant even agreed to reimburse Respondentґs expenses in connection with the domain name registration;

(x) Respondent avoided any possibility of settlement on the proposed basis by Complainant;

(xi) Registering the domain name <zoomp.com> Respondent prevented the owner of the mark "ZOOMP" from reflecting such mark in corresponding domain name;

(xii) Respondent registered a domain name which was identical to a well known Brazilian mark and is not undertaking any positive action related to the domain name.

The Response

The Respondent did not submit a Reply before the Center within the expected timeframe.

 

5. Discussion and Findings

According to paragraph 4(a) of the Uniform Domain Name Disputes and Resolution Policy, the Complainant must proof each of the following circumstances:

(i) The domain name is identical or confusingly similar to the ZOOMP trademark;

(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.

The Policy furthermore describes illustrative circumstances, without limitation, which form the basis of the above mentioned proof.

Identity or Confusing Similarity.

It is clear that the domain name <zoomp.com> is identical to the trademark registered and used by the Complainant.

Rights or Legitimate Interest.

Inasmuch the fact that the Respondent has not given indication whatsoever that they have any rights or legitimate interest in the trademark "ZOOMP", it is clear that the Respondent has no rights or legitimate interests in respect to the domain name. Both parties are established in Brazil and the Complainant is the only titleholder of several registrations for trademark "ZOOMP" in Brazil and worldwide.

The trademark "ZOOMP" is famous and it is a well-known mark in Brazil.

On the other hand, Respondent does not have any enterprise or business known by ZOOMP, neither any trademark containing this word and the domain name has never been used for an Internet service nor for an active web site.

Bad Faith.

The Panelist is of the opinion that the registration of the domain name <zoomp.com> took place in bad faith. As circumstances supporting this conclusion, it should be mentioned first of all that no legitimate interest or use in or with respect to the sign ZOOMP could be established on the side of the Respondent.

Respondent’s registration of the disputed domain name with full knowledge that the name belonged to Complainant infringed the Registrar Service Agreement in §17 (ii), that states:

"to the best of your knowledge and belief neither the registration of your domain name nor the manner in which you intend to use such domain will directly or indirectly infringe the legal rights of a third party".

Another important point is that the Respondent has registered several domain names which are identical to other well-known Brazilian marks. Respondentґs asserted ownership of 13 domain names corresponding to well known marks suggests more than a coincidence in the Respondentґs selection of those domain names. On the contrary, the Panel finds that the domain names were registered with the clear intention to prevent the owners of the domain names from reflecting the marks in the corresponding domain name. This is a circumstance which falls under Paragraph 4(b)(ii) of the Policy as being evidence of registration and use of a domain name in bad faith.

Accordingly taking into consideration all the arguments and evidences presented by the Complainant and all the circumstances of the Respondentґs behavior, the Panel finds that the domain name <zoomp.com> was registered and is being used in bad faith.

6. Decision

In light of the foregoing, the Panelist decides that the domain name registered by Mr. Jung Y. Lee (Respondent) is identical to the trademark ZOOMP of Zoomp Confecções Ltda., that Mr. Jung Y. Lee has no legitimate interests in respect of this domain name, and that the domain name at issue was registered and is being used in bad faith.

Accordingly, this Panelist requires that the registration of the domain name <zoomp.com> be transferred to Zoomp Confecções Ltda.

 


Luiz Edgard Montaury Pimenta
Sole Panelist

October 9, 2000

 

Источник информации: https://www.internet-law.ru/intlaw/udrp/2000/d2000-0904.html

 

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