Westmore · UDRP DecisionGentingkr.com
The Panel ordered transfer of <gentingkr.com>. Although the Complainant's three Korean trademark applications were still pending and did not establish registered rights, the Panel found unregistered common law rights in GENTING based on substantial evidence of extensive use over dozens of years. The addition of the geographic abbreviation “kr” did not avoid confusing similarity. The Respondent had no authorization, made no demonstrated bona fide use or preparations, and filed no response. Bad faith was established from the Respondent's selection of the coined GENTING term with “kr” shortly after the Genting Group announced expansion to the Republic of Korea, passive holding, and failure to answer cease-and-desist communications or the Complaint.
The timeline behind gentingkr.com
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The decision illustrates how a complainant may satisfy the first UDRP element through evidence of longstanding, extensive use even when its submitted trademark applications remain pending. It also shows the importance of contextual evidence in passive-holding cases: the coined mark, a geographically meaningful suffix, timing after an announced expansion into that geography, inactivity, and the registrant's failure to explain its conduct collectively supported bad faith.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Genting International Management Ltd. v. Golden Jang Case No. D2014-1406 1. The Parties The Complainant is Genting International Management Ltd. of Douglas Isle of Man, British Isles, United Kingdom of Great Britain and Northern Ireland, represented by Naqiz & Partners, Malaysia. The Respondent is Golden Jang of Angeles, Pampanga, Republic of the Philippines. 2. The Domain Name and Registrar The disputed domain name <gentingkr.com> (the “Domain Name”) is registered with Instra Corporation Pty Ltd. (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 18, 2014. On August 18, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On August 19, 2014, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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 23, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was October 13, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 14, 2014. The Center appointed Linda Chang as the sole panelist in this matter on October 27, 2014. 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. On November 10, 2014, due to exceptional circumstances, the Panel extended the due date for rendering its decision until November 17, 2014. 4. Factual Background The Complainant is an indirect subsidiary of Genting Berhad, through Genting Berhad’s subsidiary Genting Singapore PLC, all of which are part of the Genting Group of companies (“Genting Group”). The Genting Group operates its leisure, hospitality and casino business under the GENTING trademark in Malaysia and around the world, including the one and only casino resort in Malaysia for more than 30 years. The Genting Group has won various awards in Malaysia and globally. The Domain Name was registered on March 5, 2014 and has not been put into use. 5. Parties’ Contentions A. Complainant The Complainant contends that the Domain Name is identical and/or confusingly similar to its GENTING trademark. The Complainant submitted three trademark applications filed with the Korean Intellectual Property Office, and stated Genting Singapore PLC intended to expand into the Republic of Korea and would potentially be using the GENTING trademark in the hotel, resort and casino services. The Complainant further contends that the Respondent has no rights or legitimate interests in respect of the Domain Name in that the Respondent has no connection with the Complainant, in particular, the Respondent has not been licensed or authorized by the Complainant to use the Domain Name. The Domain Name is not similar to or in any way connected with the name under which the Respondent holds the domain name registrations. The Respondent is not making a legitimate, noncommercial, or fair use of the Domain Name as the Domain Name currently does not have a webpage. The Complainant finally contends that the Domain Name was registered and used in bad faith. The Respondent has registered the Domain Name for the purpose of disrupting the business of the Complainant, with the primary aim of diverting Internet traffic intended for the Complainant to the Respondent’s website. The intentional selection of the GENTING trademark, to form the Domain Name, itself evidences the Respondent’s knowledge of the GENTING trademark and business. The registration and use of the Domain Name by the Respondent suggests opportunistic bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar Though the Complainant has alleged rights in the trademark and service mark GENTING, it submitted limited evidence to prove so. The Complainant’s evidence of trademark rights includes three trademark applications filed with the Korean Intellectual Property Office, neither of which had been granted at the time of filing this Complaint. The Panel views that the Complainant’s submission of application for trademark registration does not establish its rights in the GENTING trademark. Now the issue is whether or not the Complainant has unregistered common law trademark rights or their equivalent for the purpose of the UDRP. The Panel notices that the Genting Group has been using the GENTING trademark for dozens of years and the Complainant has provided substantial evidence of its fairly extensive use of the trademark and service mark GENTING in connection with the leisure, hospitality and casino business in Malaysia and worldwide. The Panel holds that, through the dozens of years use of the mark, the Complainant has established its unregistered common law trademark rights as provided under the UDRP. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 1.7 ; S.N.C. Jesta Fontainebleau v. Po Ser , WIPO Case No. D2009-1394 ; La Mafafa, Inc. dba Cultura Profética v. Domains Real Estate , WIPO Case No. D2009-0534 . The Domain Name consists of “genting”, “kr” and “.com”. The Panel finds that the addition of “.com” being the generic Top-Level Domain does not function as a distinguishing factor. “kr” is commonly recognized as the country code of Republic of Korea. The Panel holds that the association of “kr” does not eliminate the confusing similarity between the Domain Name and the Complainant’s trademark. Therefore, the Panel holds that the Domain Name incorporates the Complainant’s mark GENTING and is confusingly similar to the Complainant’s trademark. Accordingly, the Panel finds the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy and the Domain Name is confusingly similar to the Complainant’s trademark GENTING. B. Rights or Legitimate Interests The Complainant possesses trademark rights to the GENTING trademark and claims it has never authorized the Respondent to use its trademark. There is no indication that the Respondent demonstrated, before notice to it of the dispute, use of or demonstrable preparations to use the Domain Name in connection with a bona fide offering of goods or services. The Panel is satisfied that the Respondent does not have rights or legitimate interests in respect of the Domain Name under paragraph 4(c) of the Policy. It is well-established by previous UDRP decisions that once a complainant establishes a prima facie case that a respondent lacks rights or legitimate interests in a domain name, the burden of production shifts to the respondent. See International Hospitality Management – IHM S.p.A. v. Enrico Callegari Ecostudio , WIPO Case No. D2002-0683 . The Respondent however has not provided evidence of circumstances of the type specified in paragraph 4(c) of the Policy, or of any other circumstances giving rise to a right to or legitimate interest in the Domain Name. Since the Respondent appears to be unable to adduce evidence of any rights or legitimate interests to the Domain Name, the Panel concludes that the Respondent has no rights or legitimate interests in respect of the Domain Name. C. Registered and Used in Bad Faith The Panel agrees that the Genting Group has generated and acquired substantial reputation and goodwill in the GENTING trademark through its continuous and consistent promotional and advertising efforts and activities. By the time when the Respondent registered the Domain Name, the GENTING mark had been extensively used for years. The Panel finds it inconceivable that the Respondent had no actual notice of the GENTING trademark at the time of registering the Domain Name, especially given that the Respondent included a coined word “genting” in the Domain Name with the adjunction of letters “kr” which is most commonly understood to mean Republic of Korea, shortly after the Genting Group announced its expansion to the Republic of Korea. The Panel concludes the Domain Name was registered in bad faith and the Respondent was attempting to create an impression of association with the Complainant and its GENTING trademark at the time of registration, which suggests opportunistic bad faith. The Domain Name has not been put into use so far and the Respondent did not present any proof to evidence its preparations to use it for bona fide purpose prior to the notice of this dispute. The Panel holds that the Respondent’s passive holding of the Domain Name and its behavior satisfies the requirements of the Policy as clarified in the landmark case Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003 and constitutes bad faith. The Complainant had sent the Respondent a cease-and-desist letter followed with reminders. It is pertinent for the Respondent to provide an explanation of its choice of the Domain Name but the Respondent did not do so. The Respondent also failed to respond to the Complaint to rebut the contentions of the Complainant. The Panel views this reinforces the bad faith of the Respondent. Based on the above facts and reasons, the Panel finally concludes that the Respondent registered and is using the Domain Name in bad faith. 7. Decision For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name <gentingkr.com> be transferred to the Complainant. Linda Chang Sole Panelist Date: November 17, 2014
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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