WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Kyle Grant v. jeongyong cho

Case No. D2013-1697

1. The Parties

The Complainant is Kyle Grant of Jacksonville, Florida, United States of America.

The Respondent is jeongyong cho of Seoul, Republic of Korea.

2. The Domain Name and Registrar

The disputed domain name <consoledoctor.com> (the “Disputed Domain Name”) is registered with GoDaddy.com, LLC (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 30, 2013. On October 1, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On October 2, 2013, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Disputed Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on October 14, 2013 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. An email communication was received from the Respondent on October 14, 2013. The Complainant filed an informal amendment to the Complaint on October 16, 2013.

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” 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 7, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was November 27, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 29, 2013.

The Center appointed John Swinson as the sole panelist in this matter on December 9, 2013. 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 an individual, Kyle Grant, of the United States of America (“US”).

The Complainant owns US Registration No. 4152972 (registered on June 5, 2012) for CONSOLE DOCTOR. This mark has also been registered internationally (International Registration No. 1161612, registered on May 2, 2013) (the “Trade Mark”).

The Respondent is jeongyong cho of the Republic of Korea. The Respondent did not file a Response, and consequently little information is known about the Respondent.

The Disputed Domain Name was registered with the Registrar on May 5, 2009.

At the time of writing this decision, the Disputed Domain Name resolves to a website located at “www.consoledoctor.co.uk”, which appears to be a website offering repairing services for electronic products in the United Kingdom of Great Britain and Northern Ireland operated by a company called Console Doctor Ltd.

The Complainant operates a website located at “www.consoledoctor.net”.

5. Parties’ Contentions

A. Complainant

The Complainant makes the following (limited) submissions:

- the Complainant owns the Trade Mark;

- the Respondent is using the Complainant’s famous brand name to increase its business; and

- the Respondent intentionally attempted to attract for commercial gain, Internet users to the Respondent’s web site or other on-line location, by creating a likelihood of confusion with the Trade Mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s web site or location or of a product or service on the Respondent’s web site or location.

The Complaint as originally filed contained very little information. The Center wrote to the Complainant as follows:

“Further, you may also consider amending the facts and arguments or elaborating further the arguments in the Complaint in light of the above. Any submission by you to the Center as a result of this notice must be signed and should be copied to the Respondent as named therein and the concerned Registrar. Any such amendment to the Complaint (or Amended Complaint) shall be submitted to the Center electronically (e.g., by signed PDF using the email address: [email protected]).

Also, we note the annexes to the Complaint are missing from the online submission of the Complaint.

Please submit the annexes to the Complaint (if any) to the Center electronically (e.g., by signed PDF using the email address: [email protected]) by October 19, 2013.”

The Complainant sent a number of emails to the Center after the filing of the Complaint, including an email that stated: “We do not need to add any annexes as we feel the respondent even though he typed an email, did not in good faith respond to our complaint.”

B. Respondent

The Respondent sent an email to the Center that was critical of the Complainant, but did not file a reply to the Complainant’s contentions.

6. Discussion and Findings

To succeed, the Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied, namely:

(i) the Disputed Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and

(ii) the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and

(iii) the Disputed Domain Name has been registered and is being used in bad faith.

The onus of proving these elements remains on the Complainant even though the Respondent has not filed a Response.

A. Procedural Matters

While the Respondent’s failure to file a response does not automatically result in a decision in favour of the Complainant, the Panel may draw appropriate inferences from the Respondent’s default (see e.g.Nike, Inc. v. No Owner / Ashkan Mohammadi, WIPO Case No. D2013-1297).

B. Identical or Confusingly Similar

Paragraph 4(a)(i) of the Policy provides that the Complainant must establish that the Disputed Domain Name is identical or confusingly similar to the Trade Mark.

The Disputed Domain Name is identical or confusingly similar to the Trade Mark. Accordingly, the Panel finds that the Complainant succeeds on the first element of the Policy.

C. Rights or Legitimate Interests

In the light of the Panel’s finding regarding “Registered and Used in Bad Faith” (subsection D. below), it is not necessary for the Panel to address this element.

D. Registered and Used in Bad Faith

Paragraph 4(a)(iii) of the Policy provides that the Complainant must establish that the Respondent registered and subsequently used the Disputed Domain Name in bad faith.

The only submission the Complainant made in relation to bad faith was to extract paragraph 4(b)(iv) of the Policy. This does not meet the requirements of the Policy, as explained in Scandinavian Leadership AB, Mindo AB v. Internet Masters, WIPO Case No. D2012-1273:

“Unsupported conjecture or speculation, like unsupported allegations of desired legal conclusions, is of no force or effect under the Policy; evidence to meet paragraph 4(a)’s express requirements is necessary. See Western Research 3000, Inc. v. NEP Products, Inc., WIPO Case No. D2004-0755, a default case in which the panel nevertheless denied the complaint, stating: ‘The Policy requires the Complainant to prove each of the three elements’ (emphasis in original; citation omitted).”

Further, the Trade Mark was registered in June 2012 after the Disputed Domain Name and the Complainant has provided no evidence of common law trade mark rights prior to the filing of his Trade Mark. According, the Panel finds, based on the evidence before the Panel, that Complainant either had no common law rights at the time the Disputed Domain Name was registered in 2009, or the that Respondent was legitimately unaware of any common law rights that may have existed. In either circumstance, one may conclude that the Respondent could not have registered the Disputed Domain Name in bad faith.

In light of the above, the Complainant has failed to establish bad faith registration.

7. Decision

For the foregoing reasons, the Complaint is denied.

John Swinson
Sole Panelist
Date: December 16, 2013