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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Network Solutions, LLC v. Philippine, Inc./ KerryWeb Enterprises, Inc.

Case No. D2007-0109

 

1. The Parties

The Complainant is Network Solutions, LLC, Herndon, Virginia, United States of America.

The Respondent is Philippine, Inc./ KerryWeb Enterprises, Inc., Gwangju, Republic of Korea.

2. The Domain Name and Registrar

The disputed domain name <monstermarketplace.net> is registered with Fabulous.com.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 26, 2007. On January 30, 2007, the Center transmitted by email to Fabulous.com a request for registrar verification in connection with the domain name at issue. On January 31, 2007, Fabulous.com 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”), 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 proceedings commenced on February 1, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was February 21, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 22, 2007.

The Center appointed Clive L. Elliott as the sole panelist in this matter on March 5, 2007. 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 trade/service mark MONSTERMARKETPLACE (the “Monstermarketplace Mark”) has been used by Complainant and its subsidiary since 2003. It is one of the many “Monster” containing marks used by Complainant.

Complainant offers a range of online products and services, including ecommerce storefront software and systems, website design, promotion and hosting, merchant accounts and domain name registration services. Further, it provides an online shopping site, using the Monstermarketplace name (found at <monstermarketplace.com>).

Upon learning of the Respondent’s registration of the disputed domain name, Complainant sent a letter to Respondent demanding that it cease and desist the use of the disputed domain name. Respondent did not respond to Complainant’s letter. Nor has it responded to the Complaint.

The exact identity and nature of the business of Respondent is unclear but it is probably best described as an Internet entrepreneur.

5. Parties’ Contentions

A. Complainant

Complainant asserts that it operates a significant business; it has millions of unique visitors each month and its Website has over 1.8 million Websites linked to it.

Complainant states that it has promoted the Monstermarketplace Mark and the Monstermarketplace.com domain name globally, and the Mark has widespread recognition in the United States and worldwide. Complainant contends that as a result it has developed valuable goodwill and reputation in the Monstermarketplace Mark and the <monstermarketplace.com> domain name.

Complainant alleges that Respondent is a domain name trafficker with an estimated 35,000 domain names - many that are typographical errors of famous marks.

Complainant contends that in its related case against Respondent, he/she used the name KerryWeb Enterprise (and the same contact information as initially used to register the disputed domain name) in conjunction with North West Enterprise, Inc. Complainant soon discovered that Respondent, under the North West Enterprise, Inc. name, was well-known as a typo-squatter. Complainant cites appropriate authority in support of this contention. Complainant submits that Respondent’s bad behaviour is not limited to instances where the North West Enterprise moniker has been used and that there are WIPO decisions against Philippine, Inc./Taeho Kim – where Respondent has been deemed to be engaged in bad faith registration and use of known trademarks.

Complainant asserts that it is difficult to determine the extent to which the Respondent has been involved in domain name disputes, as Respondent operates under many names including: KerryWeb Enterprise; Philippine, Inc.; Taeho Kim; Kim Taeho; Steve Kerry; North West Enterprise, Inc.; and South East Enterprise, Inc.

Currently, the disputed domain name resolves to a site with links for “Shopping Website”, “Online Shopping Mall”, and “Marketplace”. Complainant points out that if consumers click on those links, it will bring them to a page filled with “sponsored links” to both competitors of Complainant, as well as the Complainant itself – with these sponsored links offering online shopping, website creation software, and ecommerce site building software.

In conclusion, Complainant submits that the registration of a well-known trademark, in conjunction with link farms, amounts to bad faith.

B. Respondent

The Respondent did not reply to the Complainant’s contentions. As a result, the Panel is only able to assess the evidence and submissions filed by the Complainant. Likewise, in the absence of any contrary assertion or dispute those assertions and submissions are presumed to be, prima facie, correct.

 

6. Discussion and Findings

According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the domain name Complainant must prove that:

(i) the domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

(ii) 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.

Having considered the Complaint, the Panel finds that all requirements of paragraph 4(a) of the Policy are met.

A. Identical or Confusingly Similar

The evidence on this element is clear. Complainant operates a significant business, attracts a large number of customers and other interested parties to its website and provides a website that is highly attractive for linking purposes. There can be no doubt that Complainant has traded in a significant way for many years and that it has the necessary rights in and to the trademark/name MONSTERMARKETPLACE.

The disputed domain name is identical to Complainant’s trademark/name apart from the addition of the top-level suffix “net”.

Accordingly, the Panel has no difficulty in finding that the first element of the Policy has been met.

B. Rights or Legitimate Interests

As has been noted previously, once a complainant makes a prima facie case the burden shifts to the respondent to establish rights or legitimate interests in the disputed domain name; see Do The Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624 (finding that once the complainant asserts that the respondent does not have rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide credible evidence that substantiates its claim of rights and legitimate interests in the domain name). The Panel concludes that, on the basis of the Complaint, that a prima facie case is established under this ground.

The Respondent has not availed itself of the opportunity to explain its activities and justify its registration and use of the disputed domain name. Rather, it relies on silence and apparent obscurity. Complainant in turn asserts that Respondent operates under many names including: KerryWeb Enterprise; Philippine, Inc.; Taeho Kim; Kim Taeho; Steve Kerry; North West Enterprise, Inc.; and South East Enterprise, Inc and points to a number of domain name decisions supporting this finding, including Save the Children, WIPO Case No. D2006-0388; Alberto Culver Company, WIPO Case No. D2006-0495; Network Solutions, LLC v South East Enterprise, Inc., WIPO Case No. D2005-1243 (citing cased including “WWWENTERPRISE,INC.” and “South East Enterprise”, and holding as an undisputed contention that Respondent through an alter ego “has made it a practice of cybersquatting domain names that are virtually identical to other parties’ marks”).

In terms of whether the Respondent might have a legitimate purpose for its activities, Complainant points out that the disputed domain name resolves to a site with links for “Shopping Website”, “Online Shopping Mall”, and “Marketplace” and that these links bring consumers to a page filled with “sponsored links”, a so-called “link farm”. Complainant contends that the purpose of this is to make commercial gain and to misleadingly divert consumers or to tarnish the Complainant’s Mark. See ACCOR v Steve Kerry/North West Enterprise, Inc., WIPO Case No. D2006-0649 (holding that the link farm was not a legitimate non-commercial or fair use of domain names and that the Respondent must have known of the Complainant’s rights in the name and, therefore, “could not have claimed any such rights or interests”).

On the basis of the evidence and this un-contradicted assertion, it is reasonable to infer that no right or legitimate interest exists on the part of the Respondent and that the Respondent’s motives are not legitimate.

Thus the Panel is satisfied that the second element of the Policy has been met.

C. Registered and Used in Bad Faith

Complainant submits that Respondent’s bad faith conduct extends beyond the use of the North West Enterprise identity and includes the identities Philippine, Inc./Taeho Kim. In support, Complainant refers the Panel to decisions where the Respondent has been deemed to be engaged in bad faith registration and use of known trademarks. See Solvay Pharmaceuticals Inc. v Taeho Kim and Philippine, Inc., WIPO Case No. D2002-0162 (in finding against Respondent for bad faith registration and use of domain name, the court noted that Respondent had striking similarity to another bad faith registrant of domain names, “Kim Taeho”).

Finally, Complainant submits that the registration of a well-known trademark, in conjunction with link farms, has been determined to be bad faith. See Deutsche Telekom AG, WIPO Case No. D2005-1136 (finding the Respondent’s link farm to be in bad faith and stating that “it is now a well known practice to display on a web page or search engine various links to other commercial websites, every link activated by an Internet user enables the host of the search engine to collect financial remuneration proportional to the number of connections … [p]revious panels have established that this practice constitutes bad faith use.).

Given what appears to be the substantial reputation and goodwill in the Complainant’s trademark/name and specifically due to its use of its trademark/name in a wide range of online products and services, the Panel finds that the disputed domain name was in all likelihood chosen for the reasons contended by Complainant.

The Panel is therefore satisfied that the third element of the Policy has been met.

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <monstermarketplace.net> be transferred to the Complainant.


Clive L. Elliott
Sole Panelist

Date: March 20, 2007

 

Источник информации: https://www.internet-law.ru/intlaw/udrp/2007/d2007-0109.html

 

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