NHN Corporation v. NHN Corp., National Health Network
Case No. D2003-0939
1. The Parties
The Complainant is NHN Corporation, Kangnam-Gu, Seoul, Republic of Korea ("the Complainant"), represented by Horizon Law Group, Republic of Korea.
The Respondent is NHN Corp., National Health Network, Little Ferry, New Jersey, United States of America ("the Respondent"), represented by ESQwire.com Law Firm, United States of America.
2. The Domain Name and Registrar
The disputed domain name <nhn.com> ("the Domain Name") is registered with R&K Global Business Services, Inc. d/b/a 000Domains.com ("the Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center")
on November 26, 2003. On November 26, 2003, the Center transmitted
by email to the Registrar a request for registrar verification in connection
with the Domain Name. On November 27, 2003, 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 for the administrative,
billing, and technical contact. In response to a notification by the Center
that the Complaint was administratively deficient, the Complainant filed an
amendment to the Complaint on December 1, 2003. The Center verified
that the Complaint together with the amendment to 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 December 1, 2003.
In accordance with the Rules, paragraph 5(a), the due date for Response
December 21, 2003. The Response was filed with the Center December 22, 2003.
The Center appointed Tony Willoughby, Sang Jo Jong and Sally M. Abel
as panelists in this matter on January 30, 2004. The Panel finds that
it was properly constituted. Each member of 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.
On January 30, 2004, the Complainant filed with the Center a further
submission relating to the website to which the Domain Name is connected. The
Panel took the view that post-complaint developments relating to the website
were unlikely to add materially to the evidence before the Panel and declined
to consider the submission.
On February 16, 2004, the Panel issued a Procedural Order in the
following terms:-
"This request is made pursuant to Rule 12 which reads "In addition
to the Complaint and the Response, the Panel may request, in its sole discretion,
further statements or documents from either of the parties."
The members of the Panel have now read the papers in the case and would find
it helpful to have the following further information:
From the Complainant
• English translations of the Korean language emails exhibited to the
Complaint.
From the Respondent
• Such further information and contemporaneous documentation as the Respondent
can provide in relation to (a) its plans to use the name National Health Network
prior to acquisition of the Domain Name; and (b) the date on which it acquired
the Domain Name and the price it paid for the Domain Name;
The Panel stresses that this is a request, not a direction, and in making this
request of the Respondent, the Panel is, of course, aware that it is the Complainant
which is required to prove its case on all three elements of paragraph 4(a)
of the Policy. Nonetheless paragraph 4(c) of the Policy indicates how Respondents
may demonstrate their rights to and legitimate interests in domain names. Assertions
supported by documentation are always preferable to bare assertions, even when
on oath.
• Such further information and contemporaneous documentation as the Respondent
can provide as to the extent of Mr. William Nah’s participation/proposed
participation in the business of the Respondent.
The Panel invites responses to this Procedural Order by 5.00 p.m. Geneva time
on Wednesday February 18, 2004."
The Complainant responded on February 17, 2004, providing the requested
translations which are set out in the section headed "Factual Background"
below.
On February 18, 2004, the Respondent provided a response verified
by declarations from William Nah and Hyojun Kim which will be dealt with below.
4. Factual Background
The Complainant is NHN Corporation, a corporation incorporated in Korea with
its principal office located in Seoul, Korea. It was originally established
as Navercom in June 1999 as an Internet portal service provider. Following
a series of acquisitions, the scope of its activities expanded to a substantial
degree and it was re-established as NHN Corporation in 2001. The Complainant
has filed sufficient evidence to demonstrate that by 2002 the Claimant’s name
was well known in Korea as a web portal.
The Complainant is the proprietor of a series of Korean trademark registrations,
the essential element of which is the letter combination "NHN" in
script form and in plain type. All these registrations pre-date the registration
of the Domain Name.
On or about June 3, 2003, an American company, HBX, Inc. ("HBX")
acquired the Domain Name from Buydomains.com, a domain name dealer, for a price
of US$20,000. The President of HBX is William Nah. HBX is also a dealer in domain
names, trading as DomainShop.
On August 31, 2003, the Complainant first contacted HBX with a view
to negotiating the transfer of the Domain Name. The ensuing correspondence which
was conducted by the Complainant in Korean and by HBX in English was as follows:
"From: Jin Kyu Park To: Domain Shop Sent: Sunday, August 31, 2003, 10:38 PM Subject: Domain-related Inquiry
Hello!
I would like to inquire about your domain <nhn.com>.
To the best of my knowledge, your domain on now sale….
How much is the sales price?
Is it negotiable? I look forward to hearing from you.
Thank you.
Jin Kyu Park
Subject: Domain name <nhn.com> Date: Sun, 31 Aug 2003 23:07:45 -0400 Sent: "Domain Shop" To: Jin Kyu Park
Hello,
Thank you for your inquiry regarding the domain name "http://nhn.com."
DomainShop.com, Inc. is an industry leader in Top Level Domain collecting and
sales.
Also, for a successful business on the Internet, .com domain names are very
important, because during a typical Internet search, the average person will
habitually look for .com domains.
Please make a reasonable offer, if it is reasonable, we’ll consider and let
you know.
We look forward to hearing from you.
Best regards,
DomainShop.com, Inc.
From: Jin Kyu Park To: Domain Shop Sent: Monday, September 01, 2003 8:14 AM Subject: [Re] Domain name nhn.com
Yes I duly received your e-mail.
Then, how can I make a reasonable offer? Is there any particular offer format?
If so, I will try to make an offer according to that format.
Thank you.
Subject: Domain name nhn.com Date: Mon, 1 Sep 2003 09:16:56 -0400 Sent: "Domain Shop" To: Jin Kyu Park
Hello,
Thank you for your prompt response.
It is very easy, you can simply give us the price for the domain transaction
for <nhn.com>, or otherwise, please visit our website http://domainshop.com
and click "Make an Offer" and fill out and submit, that’s all you
have to do.
If you have any other questions, please contact us.
Best regards,
William
[The Complainant then made an offer of $50,000 for the Domain Name.]
Sent: "Domain Shop" To : <jukumi75….> Date: 2003-09-04 21:49 Subject : Domain Transaction for <nhn.com>
Hello,
Thank you for your offer regarding the domain name "http://nhn.com."
DomainShop.com, Inc. is an industry leader in Top Level Domain collecting and
sales.
We’ve been in business since 1998.
Also, for a successful business on the Internet, .com domain names are
very important, because during a typical Internet search, the average person
will habitually look for .com domains.
We are very sorry to tell you because we are not satisfied your offer $50,000
for this domain transaction.
We believe the value of this domain which is much higher than your
offer.
So, we hope that if you are seriously interested, you’ll make a reasonable offer.
If you agree with our price, you can open a buyer account and initiate the
domain transaction at "http://escrow.com."
They accept credit cards and other payment methods.
Please note that the Escrow Fees are paid by buyer.
If you have any other questions, please contact us.
Best regards,
William Nah
VP
DomainShop.com, Inc.
From: Jin Kyu Park To: Domain Shop Sent: Sunday, September 07, 2003 10:56 AM Subject: RE: Domain Transaction for <nhn.com>
Hi!
Thank you for your e-mail.
I know how high would be the degree of demand for 3-digit domain names.
I also guess that you would expect a reasonable price as a party who is doing
a domain-related business.
It seems that $50,000 would meet your need.
What would be the level of your expectation?
If you let me know your expected level, I will contemplate if I can afford to
pay it, and if it is a reasonable price.
Does it make sense to you?
I will appreciate if you give me some information on <nhn.com> as well.
Have a nice day, today…^^
Sent: "Domain Shop" To : "" <jukumi75…> Date: 2003-09-08 23:46 Subject : Domain Trasaction for <nhn.com>
Hello,
Thank you for your response.
Actually, we were offered many times for this domain from USA, UK, Japan
and Korea, the highest offer which was over $250,000, however we haven’t
sold because we weren’t satisfied.
If you are seriouly interested in buying this domain name, we hope that you’ll
make a reasonable re-offer.
We look forward to hearing from you.
Best regards,
William
Sent : "Domain Shop" To : <jukumi75…> Date: 2003-10-13 22:39 Subject : Domain Trasaction for <nhn.com>
Hello,
I haven’t heard any news from you regarding the domain transaction of "http://nhn.com."
I’d like to know you are still interested, if you are still interested, please
make a reasonable offer.
If your offer is reasonable, I and my partners, we’ll consider.
I look forward to hearing from you.
Best regards,
William Nah
From: Jin Kyu Park To: Domain Shop Sent: Tuesday, October 14, 2003 7:54 AM Subject: RE: Domain Transaction for <nhn.com>
Thank you for your e-mail.
Though I am much interested in <nhn.com>, its value seems to be much higher
than I think.
I initially contemplated about $1,000~20,000, but heightened the maximal betting
level to $50,000.
However, $250,000 is beyond the scope of my capability.
I guess you would receive many offers from many countries.
If you fail to find a new owner of <nhn.com> nevertheless, please contact
me again.
Thank you.
Sent: "Domain Shop" To: <jukumi75…> Date: 2003-10-15 01:05 Subject: Domain Trasaction for <nhn.com>
Hello,
Thank you for your kind reply.
However, I’d like to know how much you would like to pay or maximum budget for
the domain transaction of "http://nhn.com."
If it is reasonable, we’ll consider.
Although, we won’t sell $50,000 for this domain.
And we have many information regarding nhn in korea too, so we’ll wait or sell,
we are considering.
I look forward to hearing from you.
Best regards,
William
From: Jin Kyu Park To: Domain Shop Sent: Thursday, October 16, 2003 2:23 AM Subject: RE: Domain Transaction for <nhn.com>
Yes, I am well aware of the Domain Shop as well as of the domestic fame of
<nhn.com>. Regretfully, however, I am unable to pay more than $50,000
due to deficit of my budget.
Sorry, but we seem to have no affinity with each other.
If any further negotiation becomes available, please let me know.
Thank you.
Sent: "Domain Shop" To: <jukumi75…> Date : 2003-10-18 23:35 Subject: Domain Trasaction for <nhn.com>
Hello,
Thank you for your kind reply.
As you know, the past is the past, so we don’t regret.
By the way, if you’ll pay $150,000, I’ll discuss with my partners and consider.
If you are still interested, do not hesitate, please contact me.
Also, if you’ll let me know your phone No., I can contact with you over the
phone.
Best regards,
William Nah
From: Jin Kyu Park To: Domain Shop Sent: Monday, October 27, 2003 8:15 PM Subject: Domain trasaction for <nhn.com>
My name is Jin Kyu Park, a domain administrator of NHN Corp. in Korea.
I would like to mention about the domain <nhn.com> owned by your company.
Your <nhn.com> domain coincides with our trade name "NHN Corp,"
which has been in use since September 2001. Your domain name also coincides
with the trademarks and service marks registered in many countries including
Korea.
Thus, we believe that we deserve a legal right under the Uniform Domain Name
Dispute Resolution Policy (UDRP) with respect to your <nhn.com> domain
name. With that belief, we are now considering to proceed with legal actions
under the UDRP.
For mutually amicable and prompt settlement of this matter, we are willing to
purchase your <nhn.com> domain at an amount of $5,000 including an expected
VAT added to the direct cost of $1,500 to be incurred for the proceeding under
the UDRP.
Please take the above into your consideration. We hope to see a "win-win"
result.
Your earliest possible reply, preferably before the end of October, will be
much appreciated.
Thank you.
From: Domain Shop To: Jin Kyu Park; Date: 2003.10.28 10:36 Subject: Domain trasaction for nhn.com
Hello,
I am so sorry to hear that and we’ve been in the domain selling business
since 1998.
We do not know whether you have registered the trademark for nhn in
your country or not.
However, you have to know we haven’t made any conjunction or confusion for your
business with this domain.
Also, you have to know that if you registered with nhn for the trademark in
your country and if you’ll win WIPO of ICANN for the dispute case, We can
go and appeal at my local court, which is in New York, USA.
Well, I personally am not happy to hear that too and we’ll never reply.
Although, if you are seriously interested in buying this domain, please contact
us.
Best regards,
William Nah Marketing Manager
DomainShop.com, (HBX Inc.).
From: Jin Kyu Park To: Domain Shop Sent: Wednesday, October 29, 2003 9:04 PM Subject: [Re] Domain trasaction for <nhn.com>
Hello! I am an administrator of "NHN" domain.
We duly received your e-mail, and we have discussed the matter with our related
staff.
We wish to make a final offer to your company.
Our offer is $10,000, and this is our final offer as mentioned above.
This is for mutually amicable settlement. No higher price has been excluded
from our consideration.
If you do not agree to our proposal, we will proceed with legal remedies in
accordance with UDRP.
We hope to see a "win-win" result.
Thank you.
From: Domain Shop To: Jin Kyu Park; Date: 2003.11.02 02:36 Subject: Domain trasaction for <nhn.com>
Hello,
I know who you are, and you offered $50,000 with possible negotiations for
this domain transaction several weeks ago.
We purchased this domain at a much higher price than your offer from "http://buydomains.com"
so we can’t sell.
I’m personally so sorry to tell you that we sold this domain recently and
we’re transfering the ownership now.
As you know, the domain selling business is on a first come first serve
basis, therefore we have just a couple days.
If you are still seriously interested in buying this domain, please make a reasonable
offer.
If your offer is reasonable, we’ll consider it.
If you have any other questions, do not hesitate, please contact us.
Best regards,
William"
On November 7, 2003, the Respondent was incorporated in New Jersey.
The President of the Respondent is Hyojun Kim. The certificate of incorporation
does not specify the purpose for which the Respondent was incorporated.
On November 11, 2003, HBX transferred the Domain Name to the Respondent.
On November 19, 2003, following the transfer of the Domain Name to
the Respondent, the Complainant (in the name of an employee) had a further exchange
of emails with a view to acquiring the Domain Name. That exchange reads as follows:
"Dear NHN Corp,
I become to know you are the owner of <nhn.com> domain name. I am trying
to set an organization titled "Network of Human Network." Can you
sell your domain name if I pay some money?
Regards,
Network of Human Network"
Hello Human Network,
We have a project for the health field, that’s why we paid big money and we
purchased this domain couple weeks ago.
However, if you’ll pay more than we paid, we’ll consider it.
Best regards,
National Health Network."
5. Parties’ Contentions
A. Complainant
The Complainant contends that the Domain Name is identical or confusingly similar
to its registered trademarks featuring the letters NHN.
The Complainant further contends that HBX has no rights or legitimate interests
in respect of the Domain Name. The substance of the Complaint is that while
the Complainant was prepared to pay a substantial sum of money for the Domain
Name, as soon as HBX’s demands became extortionate, the Complainant threatened
proceedings under the Policy and HBX realizing that it was vulnerable to a Complaint
under the Policy, perpetrated an act of "cyber flying." In other words,
it transferred the Domain Name to an alter ego, set up for the purpose
and designed to defeat any subsequent complaint under the Policy. The Complainant
asserts that an act of cyber flight of this kind cannot form the basis of any
genuine bona fide use claim of the kind described in paragraph 4(c) of
the Policy.
While the Respondent’s corporate name is the same as the Domain Name, there
is no indication that the Respondent had any bona fide intentions in relation
to the Domain Name. The setting up of the Respondent under a name identical
to the Domain Name was a deliberate ploy to seek to justify registration of
the Domain Name in the hands of the Respondent and thereby to defeat the threatened
challenge under the Policy.
The Complainant contends that the Domain Name was acquired by the Respondent
and is being used by the Respondent in bad faith. The Complainant relies upon
the sequence of events leading up to the transfer of the Domain Name from HBX
to the Respondent and relies also upon the manner in which the Domain Name has
been used since the transfer. At the time of the Complaint, it resolved to a
homepage located at "www.hbxmall.com," a site owned and operated by
HBX, and, at the same time, continued to be offered for sale as a premium name
at "www.domainshop.com," another HBX website. This continued for a
further month after the transfer of the Domain Name to the Respondent. The Complainant
notes that following the transfer the Respondent was still willing to accept
offers for the Domain Name.
Finally, the Complainant contends that the Respondent registered the Domain
Name in bad faith and is using it in bad faith. The Complainant refers to the
matters set out above and contends that the Respondent acquired the Domain Name
either for the purposes of selling the Domain Name to the Complainant for an
extortionate sum of money or the Respondent acquired it to disrupt the business
of the Complainant or the Respondent acquired the Domain Name with a view to
attracting Internet users to its website for commercial gain by creating a likelihood
of confusion with the Complainant’s marks in the manner described in paragraph 4(b)(iv)
of the Policy.
B. Respondent
The Respondent does not dispute that the Domain Name is identical or confusingly
similar to the Complainant’s trademark.
The Respondent contends that it has rights and a legitimate interest in respect
of the Domain Name. It claims to have acquired the Domain Name for the purpose
of using it for the benefit of its planned business under the name of NHN Inc.,
which is its corporate name and an acronym for National Health Network, a health
related online business planned by the Respondent.
The Respondent denies that it acquired the Domain Name in bad faith and is
using it in bad faith. The Respondent points to the examples of bad faith registration
and use set out in paragraph 4(b) of the Policy and observes that there is no
evidence before the Panel to support any of the Complainant’s allegations of
bad faith in this regard.
The Respondent observes that HBX purchased the Domain Name lawfully for a substantial
sum of money ($20,000), a not unreasonable sum for a three letter domain name.
The Complainant clearly appreciated that the three letter domain name was worthy
of a substantial sum of money because the Complainant volunteered a substantial
sum in its opening offer. The Respondent contends that if the Complainant really
thought that HBX’s acquisition of the Domain Name was a bad faith acquisition,
it would never have made an offer to purchase at a price of $50,000.
The Respondent appended to the Response sworn statements from Mr. Nah
and Mr. Kim in which they admit that they have had a longstanding business
acquaintanceship and that Mr. Nah has a shareholding in the Respondent.
However, Mr. Kim denies that the acquisition of the Domain Name or the
naming of the Respondent had anything whatever to do with the Complainant or
the Complainant’s trademark. Both Mr. Kim and Mr. Nah deny that they
were aware of the Complainant’s trademark at the time of acquisition of the
Domain Name by HBX and transfer of the Domain Name by HBX to the Respondent.
Accordingly, the Respondent contends that since it had no knowledge of the
Complainant’s trademark at the relevant time, its acquisition of the Domain
Name could not have been a bad faith acquisition. The Respondent points out
that the Complainant has no registered rights in the United States and that
therefore there was no reason why the Respondent should have been aware of the
Complainant’s trademark rights when acquiring the Domain Name.
In response to the Procedural Order, the Respondent produces further declarations
from Mr. Nah and Mr. Kim verifying that Messrs Nah and Kim have
since 2001 had plans to develop an online health related business and to that
end had acquired a large number of health related domain names. Mr. Nah
says that he purchased the Domain Name "because it had the letters HN,
which could stand for Health Network and thought that National Health Network
was a great name for Mr. Kim and the business plan." He transferred
the Domain Name to the Respondent in exchange for a 20% equity interest in the
Respondent.
Mr. Nah says that he would have been prepared to sell the Domain Name
to the Complainant if the Complainant had been willing to pay a substantial
amount to cover HBX’s investment in the Domain Name and to provide funding for
the business as well as money to purchase a replacement domain name. The Complainant
did not appear to be ready to do so, so he transferred the Domain Name to the
Respondent for the purpose for which it had originally been acquired.
Mr. Kim’s further declaration confirms much of what is said in Mr. Nah’s
declaration. The final paragraph of his declaration reads "I am a programmer
and came up with the idea for the business. I have a 75% interest in NHN Corporation.
Mr. Nah is responsible for supply of the products sold. Mr. Jongho
Choi, a web designer, joined the partnership in June 2003 and has been
designing the web since that date."
6. Discussion and Findings
According to paragraph 4(a) of the Policy, the Complainant must prove that
(i) The Domain Name is identical or confusingly similar to a trademark or service
mark in 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 has been registered in bad faith and is being used in
bad faith.
A. Identical or Confusingly Similar
It is not in dispute that the Domain Name is identical or confusingly similar
to a trademark in which the Complainant has rights and the Panel so finds.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy indicates what respondents can do to demonstrate
that they have rights or legitimate interests in respect of the domain name
within the meaning of paragraph 4(a)(ii) of the Policy.
Paragraph 4(c) of the Policy reads as follows:
"c. How to Demonstrate Your Rights to and Legitimate Interests in the
Domain Name in Responding to a Complaint. When you receive a complaint, you
should refer to Paragraph 5 of the Rules of Procedure in determining how your
response should be prepared. Any of the following circumstances, in particular
but without limitation, if found by the Panel to be proved based on its evaluation
of all evidence presented, shall demonstrate your rights or legitimate interests
to the domain name for purposes of Paragraph 4(a)(ii):
(i) before any notice to you of the dispute, your use of, or demonstrable preparations
to use, the domain name or a name corresponding to the domain name in connection
with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly
known by the domain name, even if you have acquired no trademark or service
mark rights; or
(iii) you are making a legitimate non-commercial or fair use of the domain
name, without intent for commercial gain to misleadingly divert consumers or
to tarnish the trademark or service mark at issue."
On the Respondent’s story it may well have rights or legitimate interests in
respect of the Domain Name. The Respondent’s story is as follows: In June 2003,
prior to its formation, its prime mover, Mr. Kim, and his partners, Mr. Nah
and the web designer, Jongho Choi, formed plans to develop an online health
related business under the name NHN, NHN being an acronym for National Health
Network which was to be the trading name of the business. At all material times
they were unaware of the existence of the Complainant and its trademark. On
November 7, 2003, in good faith, the Respondent was incorporated in
New Jersey and on November 11, 2003, in good faith, the Respondent
acquired the Domain Name, again unaware of the existence of the Complainant’s
trademark. That is the Respondent’s story. On that story, and whether or not
the Respondent’s plans were sufficiently developed to give the Respondent rights
or legitimate interests in respect of the Domain Name, clearly it was a good
faith enterprise and the Complaint would have to fail.
Another way of looking at it, the Complainant’s way of looking at it, is that
there was no good faith in the Respondent’s enterprise. Mr. Nah, the President
of HBX, and Mr. Kim, the President of the Respondent, have known each other
for a long time and work closely together. They are both of Korean origin, both
understand the Korean language and certainly Mr.. Nah and/or his business
is the proprietor of Korean-specific domain names such as <slimkorea.com>
and <germaniumkorea.com>. At one time the Domain Name was linked to Yahoo
Korea. At the time HBX acquired the Domain Name (June 2003) the Complainant
was a very well known organisation in Korea and known by its corporate name
and trademark NHN. Having regard to the fame in Korea of the Complainant at
that time, the strong Korean connections of Mr. Nah and Mr. Kim and
their particular interest in Internet related business, it is inconceivable
that at all material times the Respondent was not well aware of the Complainant
and its trademark. Indeed, in his email message of October 15, 2003,
Mr. Nah expressly admits to knowledge of the Complainant in Korea ("and
we have many information regarding NHN in Korea too, so we’ll wait or sell,
we are considering.")
From the Complainant’s perspective, the combination of:
(i) the email exchanges;
(ii) the circumstances of the setting up of the Respondent;
(iii) the transfer of the Domain Name to the Respondent, particularly almost
immediately after Complainant threatened to pursue a claim under the Policy;
(iv) the Respondent’s continued willingness to sell the Domain Name after acquisition;
and
(v) the linking of the Domain Name to a Korean site or sites.
is wholly inconsistent with any genuine plans to trade under the names NHN
and National Health Network and supports the proposition that the Respondent’s
aim in conjunction with Mr. Nah was to extract a substantial sum of money
from the Complainant.
Faced with these two totally contrasting positions, the Panel was in two minds.
It could have simply relied on the sworn statements of Mr. Nah and Mr. Kim
in which they denied all knowledge of the Complainant and its trademark at all
material times. After all, it is a serious matter to reject a sworn statement.
However, the circumstances were, to say the least, suspicious. The statement
from Mr. Kim, President of the Respondent, stating "we … had no knowledge
of complainant or its trademark when we registered it" seemed inherently
unlikely. Mr. Kim’s company acquired the Domain Name on November 11, 2003,
from Mr. Nah’s company, Mr. Nah being a close business associate of
Mr. Kim and a substantial shareholder in the Respondent and Mr. Nah
being well aware of the Complainant and further being well aware that the Complainant
was prepared to pay a substantial sum of money for the Domain Name.
In the circumstances, the Panel was not prepared to accept the sworn statements
of Mr. Nah and Mr. Kim at face value and issued the Procedural Order
which is set out under the heading of "Procedural Background" above.
In that Procedural Order the Panel drew to the Respondent’s attention the particular
value of contemporaneous documentation to support its assertions and anticipated
that in responding the Respondent would produce some such documentation in support
of its story or at the very least explain why it was not possible to produce
any such documentation. However, despite the Panel’s specific request for such
documentation, no such documentation was produced; nor was there any explanation
for the Respondent’s failure to produce it. The further declarations indicated
that Mr. Nah’s company had a large number of health related domain names,
but that of itself was indicative of nothing. HBX is the owner of a very large
number of other domain names which are not health related domain names. That
is as one would expect given that HBX is a dealer in domain names.
Mr. Kim’s declaration drew the Panel’s attention to the fact that a web
designer had been working on the Respondent’s proposed website since June 2003,
when the Domain Name was first acquired by HBX. In those circumstances, one
would have thought that it would not be too difficult to produce something to
demonstrate bona fide preparations to use the names National Health Network
or its acronym, NHN. However, the Respondent has provided nothing of that kind.
While it is not for the Respondent to prove its innocence, it is incumbent
upon the Respondent to come forward with some hard evidence in rebuttal, when
the Complainant has established a prima facie case. Here, the Panel is of the
view that the Complainant has made out a prima facie case. The Respondent has
a case to answer, but the Respondent has provided no satisfactory answer; the
Respondent’s position is not credible.
On that basis, therefore, the Panel has no alternative but to conclude that
the Complainant’s contentions are correct and that the Respondent and its predecessor
HBX were targeting the Complainant all along and with no genuine intention of
trading under the names NHN and National Health Network.
The Panel finds therefore that the Respondent has no rights or legitimate interests
in respect of the Domain Name.
C. Registered and Used in Bad Faith
By the same reasoning the Panel finds that the Respondent acquired the Domain
Name in bad faith and is using it in bad faith.
The Panel believes it probable that the Respondent’s purpose was to extract
a much larger sum of money from the Complainant. The Panel is less impressed
with the Complainant’s contentions that the Respondent’s objective was to disrupt
the business of the Complainant or to deceive Internet users.
Accordingly, the Panel finds that the Respondent acquired the Domain Name in
bad faith and is using it in bad faith within the meaning of paragraphs 4(a)(iii)
and 4(b)(i) of the Policy.
7. Decision
In light of the foregoing findings, the Panel directs that the Domain Name
<nhn.com> be transferred to the Complainant.
Tony Willoughby
Presiding Panelist
Sang Jo Jong
Panelist
Sally M. Abel
Panelist
Dated: February 27, 2004
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