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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Laboratoire Nutergia v. Jeongyong Cho

Case No. D2007-1582

1. The Parties

Complainant is Laboratoire Nutergia, of Capdenac Gare, France, represented by Me Pattrick Therond-Lapeyre, France.

Respondent is Jeongyong Cho, of Gwangju, Republic of Korea.

2. The Domain Name and Registrar

The disputed domain name <nutergia.com> (“Domain Name”) is currently registered with Korea Information Certificate Authority, Inc. d/b/a DomainCa.com (the “Registrar”), which has a business address in Seoul, Korea.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 25, 2007.

On November 1, 2007, the Center notified Complainant that the Complaint was administratively deficient, because it was filed in English rather than Korean (the language of the registration agreement). The Center requested Complainant to remedy this defect or to submit a request to proceed in English language that explained why Complainant believed this was appropriate. The Center also requested Complainant to correct certain other defects.

On November 12, 2007, Complainant filed a request with the Center to hold the proceedings in English, and corrected the other defects identified by the Center.

The Center verified that the Complaint, as amended, 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 Respondent of the Complaint and the proceedings officially commenced on November 14, 2007. The Center’s formal notification was written in both English and Korean and was sent electronically to Respondent’s e-mail addresses, by international courier, and by facsimile. The Center advised that Respondent was required to submit a Response by December 4, 2007, and that if no Response was submitted, Respondent would be considered in default and an Administrative Panel would be appointed to decide the case. The Center also advised Respondent to notify the Center by November 21, 2007, if he wished to respond but was having language difficulties with the Complaint.

Respondent did not submit a Response to the Complaint by the deadline of December 4, 2007, as required by the Rules, paragraph 5(a). Accordingly, on December 7, 2007, the Center notified the parties that Respondent had defaulted in responding to the Complaint and that a single-member Administrative Panel would be constituted, as requested by Complainant.

The Center appointed Grant L. Kim as the sole panelist in this matter and notified the parties of the same on December 21, 2007. The undersigned Panelist 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

Complainant Laboratoire Nutergia is the registered owner of a French trademark for LABORATOIRE NUTERGIA. The trademark application was granted registration on June 23, 2003. Complainant is also the registered owner of the international trademark for NUTERGIA, which was registered on July 24, 1996 and renewed on July 24, 2006. Complainant’s international trademark is designated to apply in Belgium, Luxembourg, the Netherlands, Switzerland, the Czech Republic, Germany, and Italy. The NUTERGIA mark is registered in International Class 005, which includes “dietetic substances adapted for medical use”.

Respondent registered the Domain Name with the Registrar on May 9, 2006. The Registrar confirmed the identity of the registrant in an e-mail to the Center. As part of Respondent’s registration agreement with the Registrar, Respondent agreed to submit any disputes to a proceeding under the Policy.

Complainant has submitted printouts of prior versions of <nutergia.com>, annexed to the Complaint. These printouts indicate that when the original Complaint was filed, Respondent was using the Domain Name to operate a website with sponsored links to commercial websites. The subject matter of the linked commercial websites included shopping, computers, and gay and lesbian films.

When the Panel input the website address, “www.nutergia.com” in January 2008, the website displayed an English language page that states, “For Sale Domain!” and “Interested in purchasing this Domain Name?” The website invites prospective buyers to contact an email address corresponding to that of Respondent to arrange a Paypal transaction. Opening the “Properties” of this website indicates that it links to and displays content from “http://my.dreamwiz.com/gregorycho/parking/index.html”.

5. The Parties’ Contentions

A. Complainant’s Contentions

Complainant states that it is a French pharmaceutical company, with branches in Spain, Belgium, Switzerland, and the Czech Republic. Complainant’s current website, located at domain name <nutergia.fr>, states that it has specialized in making and marketing natural products to restore cell balance and regain health since 1989.

Complainant states that it was the registrant of the Domain Name as of 2003, but that the registration lapsed when its service provider failed to renew the registration of the Domain Name. In March 2004, Complainant discovered that the Domain Name had been registered by another and attempted to secure transfer of the Domain Name directly from its then-registrar, but was unable to do so.

Complainant requests a decision requiring the Registrar to transfer the Domain Name <nutergia.com> to Complainant pursuant to Paragraph 4(i) of the Policy. Complainant asserts that Respondent’s use of the Domain Name satisfies the standard established in Paragraph 4(a) of the Policy because the Domain Name is confusingly similar to Complainant’s NUTERGIA trademark; (2) Respondent has no rights or legitimate interests in the Domain Name; and (3) the Domain Name has been registered and is being used in bad faith.

Complainant contends that its rights in the NUTERGIA mark are demonstrated by its ownership of a French trademark registration for “LABORATOIRE NUTERGIA” (No. 033233201, filed June 23, 2003) and an international trademark registration for “NUTERGIA” (No. 658974, filed June 24, 1996). Complainant asserts that Respondent’s Domain Name is identical to Complainant’s international trademark and confusingly similar to Complainant’s French trademark.

Complainant asserts that Respondent has no rights or legitimate interests in the Domain Name. Complainant notes that Respondent has never offered products for sale using the name or trademark NUTERGIA.

Complainant further contends that Respondent has registered and used the Domain Name in bad faith. Complainant states that Respondent has never responded to the formal request for transfer of the Domain Name made by Complainant. Rather, Respondent reacted by trying to sell the contested domain name through an auction on SEDO, a German website.

B. Respondent’s Contentions

Respondent did not reply to Complainant’s contentions.

6. Discussion and Findings

The Panel finds that it was properly constituted pursuant to the Rules and that it has jurisdiction to decide this dispute. The Panel notes that the record, including a confirmation communication from the Registrar, shows that Respondent agreed to the Policy as part of its Domain Name registration, and was notified of both the Complaint at the addresses included in Respondent’s registration. The Panel further notes that notwithstanding Respondent’s failure to respond to the Complaint, the Panel has reviewed the record to determine whether or not Complainant is entitled to the relief requested under the Policy, the Rules, and the Supplemental Rules.

A. Language of the Proceeding

According to Paragraph 11 of the Rules, the language of the administrative proceeding shall be the language of the Registration Agreement unless the Panel decides otherwise. Since the Registrar has confirmed that the registration agreement is in Korean, that is the language of this proceeding unless the Panel decides otherwise. Upon receiving notice of the same from the Center, Complainant submitted a request for English to be the language of the proceeding, citing a number of specific reasons.

When the Center notified Respondent of these proceedings, it provided Respondent with the Notification of Complaint and Commencement of Administrative Proceedings in both English and Korean. The Center stated that Complainant had requested the proceedings be conducted in English, and that if Respondent was intending to file a Response but was experiencing language difficulties with the Complaint, Respondent should indicate this to the Center by no later than November 21, 2007. The Center further stated that if Respondent failed to respond by that date, the Center would proceed on the basis that Respondent had no objection to Complainant’s request that English be the language of this proceeding. The Center also stated that pursuant to paragraph 11(a) of the Policy, the Panel would make the final decision regarding the language of the proceedings.

Respondent has neither responded to nor acknowledged these proceedings in any way. Accordingly, the Panel finds that Respondent has waived any objection to this proceeding being conducted in English, by failing to respond to the Center’s notice, in both English and Korean, that Respondent would be deemed to have no objection to proceeding in English if he did not respond. The Panel concludes that it is reasonable to conduct this proceeding and to render the decision in English. See, e.g. Taylor Made Golf Company, Inc. d/b/a TaylorMade adidas Golf v. Kang Doeck-Ho, WIPO Case No. D2005-1262.

B. Scope of the Policy

Pursuant to Paragraph 4(a) of the Policy, a domain name may be cancelled or transferred to Complainant where the three elements below are satisfied. The burden of proof is on Complainant.

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

(ii) Respondent has no rights or legitimate interests with respect to the Domain Name; and

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

Transfer or cancellation of the domain name is the sole remedy provided to Complainant under the Policy, as described in Paragraph 4(i).

C. Identical or Confusingly Similar

To satisfy this element, the Panel must find that (1) Complainant has demonstrated its rights in the NUTERGIA mark; and (2) the disputed Domain Name is identical or confusingly similar to Complainant’s mark.

With respect to the first element, a domestic trademark registration is sufficient to show Complainant’s rights to the mark. See, e.g., Uniroyal Engineered Products, Inc. v. Nauga Network Services, WIPO Case No. D2000-0503 (registered U.S. trademark is adequate to demonstrate Complainant’s rights); Thaigem Global Marketing Limited v. Sanchai Aree, WIPO Case No. D2002-0358, para. 6.3 (“The propriety of a domain name registration may be questioned by comparing it to a trademark registered in any country.”) Based on Complainant’s evidence of ownership of an international trademark to NUTERGIA and the French trademark to “LABORATOIRE NUTERGIA”, the Panel finds the first element established.

It is well-established that the specific top-level identifier of a domain name, such as “.com”, “.org” or “.net.” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar. See, e.g. Zedge Ltd. v. Moniker Privacy Services/Aaron Wilson, WIPO Case No. D2006-1585. Here, the <nutergia.com> Domain Name is identical to Complainant’s international NUTERGIA trademark, with the insignificant addition of the top level identifier, “.com”. The Domain Name is also confusingly similar to Complainant’s French trademark, “Laboratoire NUTERGIA”.

Accordingly, the Panel finds the Domain Name identical and confusingly similar to Complainant’s marks.

D. Rights or Legitimate Interests

It is the consensus view of UDRP panelists that, to establish the second element, Complainant must make a prima facie showing that Respondent has no rights to or legitimate interests in the Domain Name. Once Complainant has made a prima facie case, the burden shifts to Respondent to present evidence of its rights or legitimate interests. See, e.g., Gerd Petrik v. Johnny Carpela, WIPO Case No. D2004-1043, para. 6.9; Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110, para. 6(B).

Complainant has stated that Respondent, a private resident of the Republic of Korea, has no prior rights to justify the registration and use of the Domain Name. Moreover, Complainant contends that Respondent has not attempted to market goods or services under the “Nutergia” name; instead, when Respondent previously placed content on the “www.nutergia.com” site, it placed sponsored links to unrelated movies and other services.

The Panel finds that Complainant has presented a prima facie case that Respondent lacks rights or legitimate interests in the Domain Name. The Panel also finds that Respondent has failed to present any evidence to rebut this prima facie case.

Accordingly, the Panel finds the second element established.

E. Registered and Used in Bad Faith

To establish the third element, Complainant must demonstrate pursuant to Paragraph 4(a)(iii) of the Policy that Respondent has registered and used the Domain Name in bad faith. Paragraph 4(b) of the Policy sets forth a non-exclusive list of circumstances that may show bad faith, including registrations made (i) primarily for the purpose of selling, renting, or transferring the domain name to a complainant (who owns the relevant trademark or service mark) or a complainant’s competitor; (ii) to prevent the trademark or service mark owner from reflecting the mark in a corresponding domain name, where Respondent has engaged in a pattern of such conduct; (iii) primarily for disrupting a competitor’s business; or (iv) to attract Internet users intentionally and for commercial gain, 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 an offered product or service.

Registration of an arbitrary trademark with an exclusive connection to a commercial product and limited potential utility as a common conveyor of information supports an inference of bad faith. See, e.g. Pharmacia & Upjohn Company. v. Xanax Advocates, WIPO Case No. D2000-0817. The record contains no evidence that “Nutergia” has any pre-existing meaning in English, French, or Korean, and the Panel is not aware of any such pre-existing meaning. On the contrary, this appears to be an arbitrary term created by Complainant to describe its company, which is vaguely related to an English word “nutrition”. Additionally, the mark appears to be associated with Complainant’s company and products. Respondent’s registration of the Domain Name that appears to be an arbitrary term associated exclusively with the Complainant supports the inference that Respondent had no legitimate purpose for this registration, and instead registered the Domain Name for the purpose of selling it to Complainant. This inference is supported by the fact that Respondent’s website currently indicates that the Domain Name is for sale.

Respondent’s previous use of the website to offer sponsored links to sites selling computers, gay and lesbian films, and offering other forms of shopping further supports an inference of bad faith. Specifically, it is evidence of intent to profit from the goodwill of another’s trademark, by attempting to generate click-through revenues from consumers looking for Complainant’s website who have been diverted to Respondent’s website. See, e.g. Zedge Ltd. v. Moniker Privacy Services/Aaron Wilson, WIPO Case No. D2006-1585.

The Panel finds that the third element is established.

7. Decision

For all the foregoing reasons, in accordance with paragraph 4(i) of the Policy and paragraph 15 of the Rules, the Panel orders that the Domain Name <nutergia.com> be transferred to Complainant.

Grant L. Kim
Sole Panelist

Dated: January 14, 2008