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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Archipel, Inc v. individual kim@yunsik.com / Kim Yunsik

Case No. D2008-0553

1. The Parties

The Complainant is Archipel, Inc. of Florida, United States of America (“USA”).

The Respondent is individual kim@yunsik.com / Kim Yunsik of Republic of Korea.

2. The Domain Name and Registrar

The disputed domain name <archipel.com> (the “Domain Name”) is registered with OnlineNic, Inc. d/b/a China-Channel.com (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) by email on April 9, 2008 and in hard copy on April 14, 2008. The Center transmitted its request for registrar verification to the Registrar by email on April 10, 2008. The Registrar replied on April 17, 2008, confirming that the Domain Name was registered with it, that the Respondent was the current registrant, that the Uniform Domain Name Dispute Resolution Policy (the “Policy”) applied to the registration, that its expiry date was March 22, 2009, that the Domain Name would remain locked during this proceeding, and that the Respondent had submitted in the registration agreement to the jurisdiction at the location of the Registrar’s principal office for court adjudication of disputes concerning or arising from its use. The Registrar also provided the contact details on its database in respect of the Domain Name and stated that it had not received a copy of the Complaint.

The Center verified that the Complaint satisfied the formal requirements of 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 paragraphs 2(a) and 4(a) of the Rules, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 18, 2008. The notification appears to have been delivered successfully by email and courier to the addresses provided in the Respondent’s contact details on the Registrar’s database. In accordance with paragraph 5(a) of the Rules, the due date for Response was May 8, 2008. The Respondent did not submit any response by that date, although it did send an email to the Complainant on May 2, 2008. Accordingly, the Center notified the Respondent’s default on May 9, 2008.

The Center appointed Jonathan Turner as the sole panelist in this matter on May 14, 2008. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with paragraph 7 of the Rules. Having reviewed the file, the Panel is satisfied that the Complaint complied with applicable formal requirements, was duly notified to the Respondent and has been submitted to a properly constituted Panel in accordance with the Policy, the Rules and the Supplemental Rules.

4. Factual Background

The Complainant has been operating a business supplying products used in the hospitality industry under the name “Archipel” since 1993. It has a website at “www.archipelonline.com”. A number of registrations of the mark ARCHIPEL in the USA have been made by Hospitality and Tourism Resources Pty Ltd, an Australian corporation in common ownership with the Complainant, and assigned to the Complainant on April 1, 2008.

The Domain Name was registered by the Respondent on March 22, 2003. Following the notification of the Complaint, the Respondent wrote to the Complainant by email on May 2, 2008, stating that “archipel” means a group of islands or archipelago in Korean, that he was preparing a complaint to the Center and to a Chinese court if necessary, that a trial would take three years and cost the Complainant about US $10,000 to $20,000, but that he was offering it to the Complainant for US $5,500.

5. Parties’ Contentions

A. Complainant

The Complainant states that it has been forced to use an alternative URL for its website because the Respondent is cybersquatting on the Domain Name. It points out that it has been working hard and steadily for 15 years to build the name and reputation of its ARCHIPEL brand and requires the Domain Name as part of its company profile and brand integration. It notes that the Respondent has not uploaded or implemented a website since registering the Domain Name in March 2003.

B. Respondent

As noted above, the Respondent did not reply to the Complainant’s contentions, although he claimed in his email to the Complainant following notification of the Complaint that “archipel” was Korean for archipelago.

6. Discussion and Findings

In accordance with paragraph 4(a) of the Policy, in order to succeed in this proceeding, the Complainant must prove (i) that the Domain Name is identical or confusingly similar to a mark in which it has rights; (ii) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) that the Domain Name has been registered and is being used in bad faith. Each of these requirements will be considered in turn below.

In accordance with paragraph 14(b) of the Rules the Panel shall draw such inferences from the Respondent’s default as it considers appropriate. This includes the acceptance of plausible evidence of the Complainant which has not been disputed.

A. Identical or Confusingly Similar

The Panel is satisfied that the Complainant has registered and unregistered rights in the mark ARCHIPEL.

The Panel further considers that the Domain Name is identical to this mark for the purposes of the Policy. The second level domain of the Domain Name is identical to the mark and it is well established that the generic top level domain should not be taken into consideration when evaluating the identity or confusing similarity of a complainant’s mark and a disputed domain name: see e.g. Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr., WIPO Case No. D2000-1525; Rollerblade, Inc. v. Chris McCrady, WIPO Case No. D2000-0429; Phenomedia AG v. Meta Verzeichnis Com, WIPO Case No. D2001-0374.

The first requirement of the Policy is satisfied.

B. Rights or Legitimate Interests

The Panel accepts the undisputed evidence of the Complainant that the Respondent has not used the Domain Name or any corresponding name for any bona fide offering of goods or services, or made any legitimate non-commercial or fair use of it. It is also evident that the Respondent is not commonly known by the Domain Name.

There does not appear to be any other basis on which the Respondent could claim to have any right or legitimate interest in the Domain Name or a corresponding name. The mere possibility that it might be used descriptively, as suggested by the Respondent’s assertion that “archipel” means archipelago in Korean, does not constitute a right or legitimate interest in it within the meaning of paragraph 4(a)(ii) of the Policy.

The Panel concludes that the second requirement of the Policy is satisfied.

C. Registered and Used in Bad Faith

The two parts of third requirement of the Policy are cumulative conditions: the Complainant must show that the Domain Name both was registered and is being used in bad faith. This point is clear from the wording of the Policy and has been confirmed in e.g. Telstra Corporation Limited. v. Nuclear Marshmallows, WIPO Case No. D2000-0003, Teradyne, Inc. Teradyne, Inc. v. 4Tel Technology, WIPO Case No. D2000-0026, and Substance Abuse Management, Inc. v. Screen Actors Modesl [sic] International, Inc. (SAMI), WIPO Case No. D2001-0782.

The Respondent’s email of May 2, 2008, threatens to initiate extended and costly proceedings against the Complainant unless the Complainant agrees to purchase the Domain Name for the sum of US $5,500. The Panel considers that this threat could be regarded as constituting a use of the Domain Name in bad faith or evidence of such use.

However, the Panel is not satisfied on the evidence that the Domain Name was registered in bad faith.

It is not reasonable to assume that the Domain Name was registered by the Respondent in March 2003 with the intent manifested by his email of May 2, 2008.

There is no evidence of the extent of the Complainant’s reputation when the Domain Name was registered in 2003. It may be inferred that the Complainant did not have its own website at that date because it states that it would have used the Domain Name if it had not been registered by the Respondent. In these circumstances it cannot be inferred that the Respondent must have known of the Complainant’s mark when it registered the Domain Name. Nor is there any evidence that the Respondent registered the Domain Name with the intention of using it with a reckless disregard for the risk of confusion, as in cases such as Grisoft, s.r.o. v. Original Web Ventures Inc., WIPO Case No. D2006-1381.

Indeed, the Complaint relies solely on the Respondent’s failure to make active use of the Domain Name as evidence of registration in bad faith. It has been held in Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003, and other cases that failure to make a genuine, active use of a domain name may, in combination with other matters, provide evidence of registration in bad faith. In that case, the complainant’s mark was very well known at all times and it was not possible to conceive of a plausible situation in which the respondent could have been unaware of the mark when he registered the disputed domain name or any plausible circumstances in which he could legitimately use it. Such other factors are absent in the present case. In the Panel’s view, the mere lack of active use by the Respondent is not sufficient by itself in this case to establish that it was registered in bad faith.

The Panel concludes that the third requirement of the Policy has not been proved. The Complaint must therefore be rejected.

7. Decision

For all the foregoing reasons, the Complaint is denied.

Jonathan Turner
Sole Panelist

Date: May 28, 2008