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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Groupe Canal+ Company v. Jinsoo Yoon

Case No. D2006-1240

 

1. The Parties

The Complainant is Groupe Canal+ Company of Moulineaux, France, represented by Cabinet Marc Sabatier, France.

The Respondent is Jinsoo Yoon of Seoul, Republic of Korea.

 

2. The Domain Name and Registrar

The disputed domain name <canalplus.com> is registered with Cydentity, Inc. dba Cypack.com.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 26, 2006. On September 28, 2006, the Center transmitted by email to Cydentity, Inc. dba Cypack.com a request for registrar verification in connection with the domain name at issue. On September 29, 2006, Cydentity, Inc. dba Cypack.com 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 October 9, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was October 26, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 27, 2006.

The Center appointed Ilhyung Lee, Andrй R. Bertrand and Boh Young Hwang as panelists in this matter on December 4, 2006. 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.

The Panel determines that English will be the language of the proceeding, as explained herein.

 

4. Factual Background

The Complainant is a French company whose business includes telecommunication services, including perhaps most notably, televised programs and broadcasting of programs. The company conducts operations in several countries. It obtained registration of the CANAL+ mark in France on November 20, 1986, in the Republic of Korea on August 14, 1998, in the United States of America on September 8, 1998, and in the European Community on October 18, 2005. The Complainant registered the domain name <canalplus.fr> on June 8, 2005, with the “plus” phrasing substituting the “+” symbol, which is not permitted in the text of the domain name. The Complainant has also developed websites for the domain names <canalplus.ch> and <canalplus.pl>, among others.

In a previous WIPO UDRP case, the Complainant successfully obtained a transfer of the same domain name disputed here from an entity that is not a party to the present case. Canal Plus v. Canal Latino Plus, S.L., WIPO Case No. D2001-1227 (February 6, 2002). It appears that through some error or oversight in the registration process, the domain name was subsequently registered by another party. The Complainant alleges that an individual located in the Republic of Korea (not the Respondent) initially registered the domain name and then sold it to the Respondent. The registrar has confirmed that the domain name was registered on May 20, 2006, and that Mr. Jinsoo Yoon, the Respondent, is the registrant.

 

5. Parties’ Contentions

A. Complainant

The Complainant argues that: the Respondent’s domain name is identical or confusingly similar with the CANAL+ mark in which the Complainant has rights; the Respondent has no rights or legitimate interests in respect of the domain name; and the domain name was registered and is being used in bad faith.

B. Respondent

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

Paragraphs 5(e) and 14(a) of the Rules allow the Panel to decide the dispute based on the Complaint. The Respondent’s default requires the Panel to draw appropriate inferences from such default, as provided in Paragraph 14(b).

 

6. Discussion and Findings

Initially, the Panel must address the language of the proceeding. Paragraph 11(a) of the Rules states: “Unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.” The language of the registration agreement here is Korean; in addition, the Respondent has requested in writing that the proceeding be conducted in the Korean language. Yet the Rules clearly state that the Panel is permitted to select a language other than the language of the registration agreement. The Panel determines that English will be the language of the proceeding here, with regard to the pertinent circumstances.

The Respondent’s email correspondence with the Complainant and the Center suggests a reasonable proficiency in the English language. In one message to the Center, the Respondent specifically quoted the full text of Paragraph 11(a) of the Rules. Although all of the Respondent’s correspondence to the Center ends with the qualification, “This letter did composition to translation machine”, this phrase does not appear in the Respondent’s previous message to the Complainant, which includes the query, “What can you give to me?”. Moreover, after insisting on Korean as the language of the proceeding, the Respondent has declined to participate further. He has been notified of the default. The Complainant requests that the language of the proceeding be English.

On the merits, in order to prevail, the Complainant must satisfy the three requisite elements set forth in Paragraph 4(a) of the Policy.

A. Identical or Confusingly Similar

The record demonstrates that the Complainant has rights in the CANAL+ mark. The mark and the phonetic “canal plus” phrasing are widely known in Europe and other locations. The Complainant claims rights relating to the mark since the 1980s. It obtained formal registration of the mark in multiple jurisdictions, and used the mark in business operations long before the Respondent registered the domain name.

The Panel determines that the domain name <canalplus.com> is confusingly similar to the CANAL+ mark in which the Complainant has rights. The “plus” portion of the domain name is merely the spelling in word form of the “+” symbol, the same form that the Complainant uses for its own domain names, e.g., <canalplus.fr>.

B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy provides a non-exhaustive list of ways in which the Respondent may demonstrate rights or legitimate interests in the domain name. Specifically, the Respondent may provide evidence that: the Respondent’s use of the domain name is in connection with a bona fide offering of goods or services; or the Respondent is commonly known by the domain name; or the Respondent is making a legitimate noncommercial or fair use of the domain name. There is no evidence in the case record to indicate that any of these circumstances are present. Nor is the Panel able to explain any facts or circumstances that could demonstrate the Respondent’s rights or legitimate interests in his use of the <canalplus.com> domain name.

Based on the foregoing the Panel finds that the Respondent has no rights or legitimate interest in the domain name.

C. Registered and Used in Bad Faith

The Complainant must also show that the disputed domain name has been registered and is being used in bad faith. Paragraph 4(b)(i) of the Policy provides that the Complainant may meet this requirement by providing evidence that the Respondent registered or acquired the domain name “primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark ... for valuable consideration in excess of … documented out-of-pocket costs directly related to the domain name.” In addition, Paragraph 4(b)(iv) of the Policy states that bad faith can be demonstrated when the Respondent has “intentionally attempted to attract, for commercial gain, Internet users to [the Respondent’s] website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [the] website or location or of a product or service on [the] website or location.”

In the present case, there is evidence suggesting that the Respondent obtained the domain name for the purpose of selling it to the Complainant for a significant amount beyond out-of-pocket costs. In the Panel’s view, there is even stronger evidence that the Respondent has intentionally attempted to attract Internet users to the <canalplus.com> website by creating confusion with the Complainant’s CANAL+ mark.

In June 2006, within a month of registration of the domain name, the website for <canalplus.com> included the notation, “Internet Television,” conspicuously placed at the top, with search engine subjects in French below it. The Panel notes that in the Respondent’s email message to the Complainant dated August 27, 2006, the Respondent stated, “We’re planning to operate IT related business with this domain.” Whether “IT” refers to “Internet Television” or “information technology,” it is related to the Complainant’s business.

Moreover, as of the time of the Panel’s deliberations, Internet users typing in the domain name were taken to a website that included links entitled “Satellite T.v,” “Cable Tv,” “satellite Television,” and “Satellite Tv Systems.” It does not assist in the Respondent’s cause that the same website also included links for “Free trial porn,” “Pornovideo,” “Nude Photography,” and “Adult Sex Toys.”

In all events, the Panel determines that the use of the <canalplus.com> domain name creates a likelihood of confusion with the Complainant’s CANAL+ mark as to the source, sponsorship, affiliation, or endorsement of the website or of products and services on the website.

Based on the above, the Panel finds that the 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 <canalplus.com> be transferred to the Complainant.

Ilhyung Lee Presiding Panelist
Andrй R. Bertrand Panelist	Boh Young Hwang Panelist

Dated: December 26, 2006