DECISION

Intelligent Controls, Inc. v Yun Sung Lee

Claim Number: FA0101000096485

PARTIES

The Complainant is Michael L. Johnson Intelligent Controls, Inc., Saco, ME, USA (“Complainant”).  The Respondent is Yung S. Lee, sungbook-gu Seoul, Korea (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is "incon.com" registered with IBI CO., LTD.

PANEL

The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge, has no known conflict in serving as a panelist in this proceeding.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on January 23, 2001; the Forum received a hard copy of the Complaint on January 25, 2001.  The Complaint was submitted in English with a Korean translation. 

On January 30, 2001, IBI CO., LTD confirmed by e-mail to the Forum that the domain name "incon.com" is registered with IBI CO., LTD and that the Respondent is the current registrant of the name.  IBI CO., LTD has verified that Respondent is bound by the IBI CO., LTD registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).  IBI further confirmed that the registration agreement is in Korean.

On February 6, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of February 26, 2001  by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to postmaster@incon.com by e-mail.

Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

On _________________, pursuant to Complainant’s request to have the dispute decided by a One Member panel, the Forum appointed _____________________  as Panelist.

Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) “to employ reasonably available means calculated to achieve actual notice to Respondent.”  Therefore, the Panel may issue its Decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum’s Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from the Respondent.

RELIEF SOUGHT

The Complainant requests that the domain name be transferred from the Respondent to the Complainant.

PARTIES’ CONTENTIONS

A. Complainant

Complainant alleges the following:

1) Respondent’s domain name, incon.com, is obviously identical to Complainant’s registered mark, INCON.

2) Respondent has no rights or legitimate interests in the domain name at issue.

3) Repondent registered and used the domain name at issue in bad faith.

B. Respondent

Respondent has not submitted a response in this matter.

FINDINGS

Complainant, Intelligent Controls, Inc., owns the registered mark INCON, which it has used since 1978 in connection with various computer products and services.  Complainant has spent substantial sums of money developing and marketing the goods and services associated with its registered mark.

Respondent, Yung Sung Lee, has not used the domain name at issue since its registration.  On December 20, 2000, Complainant contacted Respondent to inquire about the possibility of transferring the domain name at issue, to which Respondent offered to sell the domain name to Complainant for $9,000. 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to “decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”

In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules.

Paragraph 4(a) of the Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:

(1) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(2) the Respondent has no rights or legitimate interests in respect of the domain name; and

(3) the domain name has been registered and is being used in bad faith.

Identical and/or Confusingly Similar

Complainant’s rights are evidenced by its registered mark, INCON.

The Panel finds Respondent’s domain name, incon.com, is identical to Complainant’s well-established mark. See Interstellar Starship Services Ltd. v. EPIX, Inc., 983 F.Supp. 1331, 1335 (D.Or. 1997) (epix.com "is the same mark" as EPIX); see also BMW AG v. Loophole, D2000-1156 (WIPO Oct 26, 2000) (finding that there “is no doubt that the domain name [bmw.org] is identical to the Complainant’s well-known and registered trademarks [BMW]”).

Rights or Legitimate Interests

The Panel finds the Respondent has no rights or legitimate interests in the domain name at issue because its is not commonly known by the domain name, nor is Respondent using the domain name in connection with a bona fide offering of goods, services or for a legitimate noncommercial or fair use.  See Hartford Fire Ins. Co. v. Webdeal.com, Inc., FA 95162 (Nat. Arb. Forum Aug. 29, 2000) (finding that Respondent has no rights or legitimate interests in domain names because it is not commonly known by Complainant’s marks and Respondent has not used the domain names in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use).

Further, Respondent asserted no rights or legitimate interests in the domain name at issue, which entitles the Panel to conclude that Respondent has no such rights or legitimate interests in the domain name. See Canadian Imperial Bank of Commerce v. D3M Virtual Reality Inc. and D3M Domain Sales, AF-0336 (eResolution Sept. 23, 2000) (finding no rights or legitimate interest where no such right or interest is immediately apparent to the Panel and Respondent has not come forward to suggest any such right or interest that it may possess); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that under certain circumstances the mere assertion by the Complainant that the Respondent has no right or legitimate interest is sufficient to shift the burden of proof to the Respondent to demonstrate that such a right or legitimate interest does exist).

Registration and Use in Bad Faith

The Panel finds Complainant has shown Respondent offered to sell the domain name at issue for $9,000, which constitutes bad faith. See Moynahan v. Fantastic Sites, Inc., D2000-1083 (WIPO Oct. 22, 2000) (finding bad faith where the Respondent offered to sell the Domain Name to the Complainant for $10,000 when Respondent was contacted by Complainant); see also America Online, Inc. v. Avrasya Yayincilik Danismanlik Ltd., FA 93679 (Nat. Arb. Forum Mar. 16, 2000) (finding bad faith where Respondent offered domain names for sale).

Moreover, Respondent has passively held the domain name at issue, which also demonstrates bad faith. See Alitalia –Linee Aeree Italiane S.p.A v. Colour Digital, D2000-1260 (WIPO Nov. 23, 2000) (finding bad faith where the Respondent made no use of the domain name in question and there are no other indications that the Respondent could have registered and used the domain name in question for any non-infringing purpose); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that merely holding an infringing domain name without active use can constitute use in bad faith).

DECISION

Having established all three elements required under ICANN Policy, the Panel concludes that the requested relief shall be and is hereby granted.

Accordingly, it is Ordered that the domain name, incon.com, be transferred from Respondent to Complainant.

Dated: May 31, 2001

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