DECISION

Manpower, Inc. v. BigMart.com

Claim Number: FA0304000155892

PARTIES

Complainant is Manpower, Inc., Milwaukee, WI, USA (“Complainant”) represented by Paul D. McGrady of Ladas & Parry. Respondent is BigMart.com, Kangnam-Ku Seoul, KOREA (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <manpower.net> registered with Hangang Systems, Inc. d/b/a Doregi.com.

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 Panelist in this proceeding.

Sandra Franklin as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on April 25, 2003; the Forum received a hard copy of the Complaint on April 25, 2003.

On April 28, 2003, Hangang Systems, Inc. d/b/a Doregi.com confirmed by e-mail to the Forum that the domain name <manpower.net> is registered with Hangang Systems, Inc. d/b/a Doregi.com and that Respondent is the current registrant of the name. Hangang Systems, Inc. d/b/a Doregi.com has verified that Respondent is bound by the Hangang Systems, Inc. d/b/a Doregi.com 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").

On May 7, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 27, 2003 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@manpower.net by e-mail.

On June 5, 2003, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra Franklin as Panelist.

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 June 6, 2003. In response to this notification and 10 days after the deadline for a Response, Respondent transmitted an e-mail to the Forum that seemed to indicate Respondent was interested in responding.

The Administrative Panel (the "Panel") finds Respondent’s untimely submission inadequate to constitute a Response. Respondent’s tardy and vague email does not militate the fact that Respondent was given a “fair opportunity to present its case” in accordance with Paragraph 10(a) of the Rules.

Having reviewed the communications records, 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 Respondent.

RELIEF SOUGHT

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

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

1. Respondent’s <manpower.net> domain name is identical to Complainant’s MANPOWER mark.

2. Respondent does not have any rights or legitimate interests in the <manpower.net> domain name.

3. Respondent registered and used the <manpower.net> domain name in bad faith.

B.  Respondent failed to submit a Response in this proceeding.

FINDINGS

Complainant owns numerous trademark applications and registrations for the MANPOWER mark internationally in relation to temporary employment services. Complainant has made extensive use of the MANPOWER mark by using it in connection with the sale of its services on a global scale. Complainant’s core business is providing temporary employment services for administrative, industrial, call center and professional positions.

An independent search by the Panel reveals that Complainant holds a trademark registration with the United States Patent and Trademark Office (USPTO) for the MANPOWER mark (Reg. No. 672,305 registered on January 6, 1959) related to business service, namely, furnishing of its employees on a contract basis to persons or places of business requiring part-time or temporary help.

Respondent registered the <manpower.net> domain name on September 28, 1999. Initially Respondent used the disputed domain name as a portal website. After receiving notice from Complainant of Respondent’s alleged violation of Complainant’s rights in the MANPOWER mark, Respondent posted a political message at the website, the text “NO WAR.”

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 Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules.

Paragraph 4(a) of the Policy requires that 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 Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

(2) 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 has established that it has rights in the MANPOWER mark through registration internationally and with the USPTO.

Respondent’s <manpower.net> domain name is clearly identical to Complainant’s MANPOWER mark because the disputed domain name appropriates Complainant’s entire mark and merely adds the generic top-level domain (gTLD) “.net” to the end of the mark. The addition of a gTLD such as “.net” to a domain name is irrelevant to the determination of whether a domain name is confusingly similar or identical to a mark with regard to Policy ¶ 4(a)(i) because the use of a gTLD is a requirement on the Internet. See Kabushiki Kaisha Toshiba v. Shan Computers, D2000-0325 (WIPO June 27, 2000) (finding that the domain name <toshiba.net> is identical to the Complainant’s trademark TOSHIBA); see also Nike, Inc. v. Coleman, D2000-1120 (WIPO Nov. 6, 2000) (finding that the domain name <nike.net> is identical to the Complainant’s famous NIKE mark).

The Panel finds that Complainant has established Policy ¶ 4(a)(i).

Rights or Legitimate Interests

Respondent has failed to favor the Panel with a Response in this proceeding. Thus, the Panel may accept all reasonable allegations and inferences in the Complaint as true. See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate for the Panel to draw adverse inferences from Respondent’s failure to reply to the Complaint); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that Complainant’s allegations are true unless clearly contradicted by the evidence).

Moreover, due to Respondent’s failure to answer the allegations in the Complaint, the Panel presumes that Respondent lacks any rights to or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). See Geocities v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding that Respondent has no rights or legitimate interests in the domain name because the Respondent never submitted a response or provided the Panel with evidence to suggest otherwise); see also Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names).

Respondent offered to sell the <manpower.net> domain name registration to Complainant for $49,500. In absence of any evidence to the contrary submitted by Respondent, the Panel may presume that this amount exceeds Respondent’s documented out-of-pocket costs directly related to the disputed domain name. Therefore, Respondent’s use of the domain name does not represent a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Wal-Mart Stores, Inc. v. Stork, D2000-0628 (WIPO Aug. 11, 2000) (finding Respondent’s conduct purporting to sell the domain name suggests it has no legitimate use); see also Cruzeiro Licenciamentos Ltda v. Sallen, D2000-0715 (WIPO Sept. 6, 2000) (finding that rights or legitimate interests do not exist when one holds a domain name primarily for the purpose of marketing it to the owner of a corresponding trademark).

Respondent has proffered no proof and there is no evidence in the record to suggest that Respondent is commonly known by either MANPOWER or <manpower.net>. Thus, Respondent has failed to establish any rights to or legitimate interests in the disputed domain name with regard to Policy ¶ 4(c)(ii). See RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (Interpreting Policy ¶ 4(c)(ii) "to require a showing that one has been commonly known by the domain name prior to registration of the domain name to prevail"); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where Respondent was not commonly known by the mark and never applied for a license or permission from Complainant to use the trademarked name).

Accordingly, the Panel finds that Complainant has established Policy ¶ 4(a)(ii).

Registration and Use in Bad Faith

Respondent’s offer to sell the <manpower.net> domain name to Complainant for $49,500 indicates that Respondent registered the disputed domain name primarily for the purpose of selling the domain name registration to Complainant for valuable consideration in excess of Respondent’s out-of-pocket costs directly related to the domain name, which evidences bad faith registration and use pursuant to Policy ¶ 4(b)(i). See World Wrestling Fed’n Entmt., Inc. v. Bosman, D99-0001 (WIPO Jan. 14, 2000) (finding that Respondent used the domain name in bad faith because he offered to sell the domain name for valuable consideration in excess of any out-of-pocket costs); see also Dynojet Research, Inc. v. Norman, AF-0316 (eResolution Sept. 26, 2000) (finding that the Respondent demonstrated bad faith when he requested monetary compensation beyond out-of-pocket costs in exchange for the registered domain name).

The Panel finds that Policy ¶ 4(a)(iii) has been established.

DECISION

Having established all three elements required under ICANN Policy, the Panel concludes that relief shall be GRANTED.

Accordingly, it is Ordered that the <manpower.net> domain name be TRANSFERRED from Respondent to Complainant.

Sandra Franklin, Panelist

Dated:  June 12, 2003

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