Home | Databases | WorldLII | Search | Feedback Generic Top Level Domain Name (gTLD) Decisions

Realum KG v. Young Nah, enom partner [2005] GENDND 1975 (2 November 2005)

World Intellectual Property Organization

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Realum KG v. Young Nah, enom partner

Case No. D2005-0959

1. The Parties

The Complainant is Realum KG, Dresden, Germany, represented by an internal representative, Germany.

The Respondent is Young Nah, Organization Name: enom partner, Pohang, Republic of Korea.

2. The Domain Name and Registrar

The disputed domain name <realum.com> is registered with eNom.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 7, 2005. On September 9, 2005, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On September 13, 2005, eNom 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. 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 September 15, 2005. In accordance with the Rules, paragraph 5(a), the due date for Response was October 5, 2005. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 6, 2005.

The Center appointed Isabelle Leroux as the sole panelist in this matter on October 19, 2005. 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 the owner of the Community trademark REALUM filed on September 16, 2002, and registered on March 29, 2005, for services within international classes 35, 36 and 37, in connection with e.g. business administration, real estate management and building construction supervision.

The disputed domain name was registered on January 23, 2003.

5. Parties’ Contentions

A. Complainant

The Complainant is the owner of the trademark REALUM which is identical to the disputed domain name.

The Respondent has not made a legitimate non-commercial or fair use of the disputed domain name which has only be used as an item for sale since its registration.

The domain name was registered primarily for the purpose of selling since selling domains is the business pursued by the Respondent. The domain name is redirected to “www.domainbar.com” stating at the top of the page ‘this domain name is for sale”.

The Respondent did not answer the letter sent to him by the Complainant on August 23, 2005.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

Paragraph 15 (a) of the Rules instructs the Panel as to the principles the Panel is to use in determining the dispute:

“A Panel shall 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 seems applicable”.

Paragraph 4(a) of the Policy states that, for a complaint to be granted, the Complainant must prove each of the following:

(i) that the domain name registered by the Respondent is identical or confusingly similar to the trademarks or service marks in which the Complainant has rights; and

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

(iii) that the domain name has been registered and is used in bad faith.

A. Identical or Confusingly Similar

The disputed domain name <realum.com> is identical to the Complainant’s Community trademark REALUM filed at OHIM and in Germany.

The addition of the gTLD “.com” would not affect the attractive power of the word “realum”.

Thus, the first element of the Policy has been made out.

B. Rights or Legitimate Interests

The Policy, Paragraph 4(c), lists certain circumstances, which may demonstrate a respondent’s rights and legitimate interests to a domain name. Where a complainant makes out a prima facie showing on a respondent’s lack of rights and legitimate interests to a domain name, the burden of proof shifts to the respondent.

In this case, the Complainant has made a prima facie showing of the Respondent’s lack of rights. The Respondent has not filed any Response to the Complaint and has thus not alleged any facts or elements to justify rights or legitimate interests in the said domain name.

The Complainant does not appear to have licensed or otherwise authorized the Respondent to use its trademark or any domain name incorporating the trademark. The Panel notes that prior to any notice of this dispute, the Respondent had not used the domain name in connection with any bona fide offering of goods or services within the meaning of Paragraph 4(c)(i) of the Policy.

By not submitting a Response, the Respondent has failed to demonstrate that he has rights or legitimate interests in the domain name.

Thus, the Panel concludes that the Respondent has no rights or legitimate interests, within the meaning of paragraph 4(a)(ii) and (c)(i-iii) of the Policy in respect of the disputed domain name.

C. Registered and Used in Bad Faith

The Policy, Paragraph 4(b), indicates that certain circumstances may, “in particular but without limitation”, be evidence of bad faith.

After receiving the Complaint, the Respondent sent an e-mail to the Complainant showing that the domain name is offered to sale: “It is very interesting. The price of this domain name is less the US$ 300. I can sell it for that price. But you spent too much money and much time for WIPO. Very stupid.” The Panel considers that this e-mail constitutes an offer to sell the domain name for valuable consideration in excess of the documented out-of-pocket costs directly related to the domain name. This element is corroborated by the fact that the disputed domain name was offered to sell to the public by the way of the website “www.domainbar.com”.

Finally, the Panel notes that the Respondent seems to have been involved as respondent to prior proceedings under the UDRP (see Accor v. Young Gyoon Nah, WIPO Case No. D2004-0681; V&S Vin & Spirit v. Young Nah, WIPO Case No. D2004-0961; Hilton Group PLC v. Young Nah, WIPO Case No. D2005-0184). This element has not been challenged by the Respondent.

Thus, the Panel concludes that the disputed domain name was registered and is being used in bad faith.

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 <realum.com> be transferred to the Complainant.

Isabelle Leroux
Sole Panelist

Dated: November 2, 2005