Ngage.com

The timeline behind ngage.com

Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.

Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.

NATIONAL ARBITRATION FORUM DECISION Nokia Corporation v. Unitedeurope Consulting Claim Number: FA0702000926596 PARTIES Complainant is Nokia Corporation (“Complainant”), represented by Abigail Rubinstein, of Darby & Darby P.C., 805 Third Avenue, New York, NY 10022. Respondent is Unitedeurope Consulting (“Respondent”), 1206ho 102dong kumho oullim yongbong-dong buk-gu, po box 500-070, Gwangju 502772, KR. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <ngage.com>, registered with Korea Information Certificate Authority, Inc. d/b/a Domainca.com. PANEL The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding. James A. Carmody, Esq., as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically on February 27, 2007; the National Arbitration Forum received a hard copy of the Complaint on March 5, 2007. The Complaint was submitted in both Korean and English. On March 5, 2007, Korea Information Certificate Authority, Inc. d/b/a Domainca.com confirmed by e-mail to the National Arbitration Forum that the <ngage.com> domain name is registered with Korea Information Certificate Authority, Inc. d/b/a Domainca.com and that Respondent is the current registrant of the name. Korea Information Certificate Authority, Inc. d/b/a Domainca.com has verified that Respondent is bound by the Korea Information Certificate Authority, Inc. d/b/a Domainca.com registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy"). On March 9, 2007, a Korean language Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 29, 2007 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@ngage.com by e-mail. Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default. On April 3, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., as Panelist. Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent. Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Korean language Complaint and Commencement Notification and, absent a Response, determines that the remainder of the proceedings may be conducted in English. RELIEF SOUGHT Complainant requests that the domain name be transferred from Respondent to Complainant. PARTIES' CONTENTIONS A. Complainant makes the following assertions: 1. Respondent’s <ngage.com> domain name is confusingly similar to Complainant’s N-GAGE mark. 2. Respondent does not have any rights or legitimate interests in the <ngage.com> domain name. 3. Respondent registered and used the <ngage.com> domain name in bad faith. B. Respondent failed to submit a Response in this proceeding. FINDINGS Complainant, Nokia Corporation, manufactures a vast array of telecommunications products, including a device it markets under the N-GAGE mark. Complainant has continuously and extensively used and promoted the N-GAGE mark since November 2002. Complainant also maintains a website at the <n-gage.com> domain name, where owners of the N-GAGE device can download video games and other features. Complainant has registered the N-GAGE mark with trademark authorities around the world, including in the Republic of Korea, where Respondent resides (Reg. No. 813,474 issued April 10, 2003). Respondent’s <ngage.com> domain name at one time resolved to a commercial web directory with links to competing telecommunications companies. Respondent’s domain name no longer resolves to an active website. The WHOIS information lists the original registration date for the <ngage.com> domain name as December 11, 1999. According to Complainant, however, the domain name in dispute was not registered to Respondent until December 2006. The WHOIS information indicates that the contact information for the <ngage.com> domain name was last updated on July 29, 2006. DISCUSSION Paragraph 15(a) of the Rules instructs this Panel to "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 deems applicable." In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”). Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred: (1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and (2) Respondent has no rights or legitimate interests in respect of the domain name; and (3) the domain name has been registered and is being used in bad faith. Identical and/or Confusingly Similar Complainant has registered the N-GAGE mark in Korea, where Respondent resides. Although the WHOIS information lists the registration date for the <ngage.com> domain name as December 11, 1999, before Complainant’s trademark registration date of April 10, 2003, Complainant claims that Respondent obtained the disputed domain name registration sometime in 2006, three years after it registered the N-GAGE mark. In The Ass’n of Junior Leagues Int’l Inc. v. This Domain Name My Be For Sale, FA 857581 (Nat. Arb. Forum Dec. 28, 2006), the panel held that one only needs to trace the registration date back to the most recent transfer date instead of the original registration. Therefore, the Panel finds that the proper registration date for purposes of this proceeding is in 2006, and thus Complainant’s trademark registration predates Respondent’s registration of the <ngage.com> domain name. As a result, Complainant has sufficiently demonstrated its rights in the mark under Policy ¶ 4(a)(i). See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (finding that the complainants federal trademark registrations for the CHEAPTICKETS and CHEAPTICKETS.COM marks were adequate to establish its rights in the mark pursuant to Policy ¶ 4(a)(i)); see also ESPN, Inc. v. MySportCenter.com, FA 95326 (Nat. Arb. Forum Sept. 5, 2000) (concluding that the complainant demonstrated its rights in the SPORTSCENTER mark through its valid trademark registrations with the USPTO and similar offices around the world). Respondent’s <ngage.com> domain name is an exact replica of Complainant’s N-GAGE mark, but for the lack of a hyphen and the addition of the generic top-level domain (“gTLD”) “.com.” Neither alteration sufficiently distinguishes the disputed domain name from the registered mark. Consequently, the Panel concludes that Respondent’s <ngage.com> domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i). See Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar); see also Health Devices Corp. v. Aspen S T C, FA 158254 (Nat. Arb. Forum July 1, 2003) (“[T]he addition of punctuation marks such as hyphens is irrelevant in the determination of confusing similarity pursuant to Policy ¶ 4(a)(i).”). The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i). Rights or Legitimate Interests Under Policy ¶ 4(a)(ii), Complainant has the burden of making a prima facie case that Respondent has no rights or legitimate interests in the domain name in dispute. If Complainant makes a prima facie case, then the burden effectively shifts to Respondent to show, on the contrary, that it does have rights or legitimate interests in the <ngage.com> domain name. See Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007) (finding that once a prima facie case has been established by the complainant under Policy ¶ 4(c), the burden then shifts to the respondent to demonstrate its rights or legitimate interests in the disputed domain name); see also ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (finding that Policy ¶ 4(a)(ii) requires that the complainant must show that the respondent has no rights to or legitimate interests in the subject domain name and that once the complainant makes this showing, the burden of production shifts to the respondent to rebut the complainant’s allegations). Respondent has not responded to the Complaint. As a result, the Panel presumes that Respondent lacks rights and legitimate interests in the <ngage.com> domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence); see also CMGI, Inc. v. Reyes, D2000-0572 (WIPO Aug. 8, 2000) (finding that the respondent’s failure to produce requested documentation supports a finding for the complainant). However, the Panel will now examine the record to determine whether or not Respondent has rights or legitimate interests under the Policy ¶ 4(c) factors. Under Policy ¶ 4(c)(ii), Respondent can establish rights or legitimate interests if it is commonly known by the <ngage.com> domain name. However, the WHOIS information lists the registrant of the contested domain name as “Unitedeurope Consulting,” and there is no other evidence available to indicate that Respondent is commonly known by the disputed domain name. Hence, Respondent has not established rights or legitimate interests under this paragraph of the Policy. See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name); see also M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record). Under Policy ¶¶ 4(c)(i) and 4(c)(iii), Respondent can establish rights or legitimate interests if it is making a bona fide offering of goods or services or a legitimate noncommercial or fair use of the <ngage.com> domain name, respectively. Here, however, Respondent is not actively using the disputed domain name and has, in the past, operated a website with pay-per-click links to websites competing with Complainant. The panel in Expedia, Inc. v. Compaid, FA 520654 (Nat. Arb. Forum Aug. 30, 2005) found that the use of an identical or confusingly similar domain name to redirect Internet users to a website featuring links to travel services that competed with the complainant was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). Moreover, in American Broadcasting Companies, Inc. v. Merrill Sech, FA 893427 (Nat. Arb. Forum Feb. 28, 2007), the Panel found that the respondent’s non-use of the <abc7chicago.mobi> domain name provided evidence that the respondent lacked rights or legitimate interests in the disputed domain name. In line with these previous panel decisions under the Policy, Respondent cannot establish rights or legitimate interests pursuant to either Policy ¶ 4(c)(i) or ¶ 4(c)(iii). The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii). Registration and Use in Bad Faith Respondent’s past use of the <ngage.com> domain name to operate a website with pay-per-click links to competing telecommunications companies indicates that Respondent registered and used the <ngage.com> domain name to disrupt Complainant’s business. The panels in both Marriott International, Inc. v. MCM Tours, Inc., FA 444510 (Nat. Arb. Forum May 6, 2005) and Classic Metal Roofs, LLC v. Interlock Industries, Ltd., FA 724554 (Nat. Arb. Forum Aug. 1, 2006) found bad faith registration and use where respondents were redirecting Internet users to competing websites. Consequently, the Panel finds bad faith registration and use pursuant to Policy ¶ 4(b)(iii). Moreover, by redirecting Internet users to competing websites, Respondent likely profited from customers seeking Complainant’s telecommunications services that ended up at Respondent’s website instead. Respondent has taken advantage of the confusing similarity between the <ngage.com> domain name and Complainant’s registered N-GAGE mark in order to profit from the goodwill associated with the mark in violation of Policy ¶ 4(b)(iv). See BPI Comm’cns, Inc. v. Boogie TV LLC, FA 105755 (Nat. Arb. Forum Apr. 30, 2002) (“Complainants are in the music and entertainment business. The links associated with <billboard.tv> and <boogie.tv> appear to be in competition for the same Internet users, which Complainants are trying to attract with the <billboard.com> web site. There is clearly a likelihood of confusion between <billboard.tv> and BILLBOARD as to the source, sponsorship, affiliation, or endorsement of the web site or of a product or service on the web site.”); see also Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting from click-through fees). While Respondent is not currently using the <ngage.com> domain name, the panels in both Caravan Club v. Mrgsale, FA 95314 (Nat. Arb. Forum Aug. 30, 2000) and Am. Online, Inc. v. Kloszewski, FA 204148 (Nat. Arb. Forum Dec. 4, 2003) found bad faith registration and use where the respondents failed to make active use of domain names containing the trademarks of the respective complainants for lengthy periods of time. Consequently, the Panel finds that Respondent’s current non-use of the <ngage.com> domain name further suggests bad faith registration and use pursuant to Policy ¶ 4(a)(iii). The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(iii). DECISION Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED. Accordingly, it is Ordered that the <ngage.com> domain name be TRANSFERRED from Respondent to Complainant. James A. Carmody, Esq., Panelist Dated: April 13, 2007 Click Here to return to the main Domain Decisions Page. Click Here to return to our Home Page NATIONAL ARBITRATION FORUM

Source of record: FORUM . Reproduced for research; FORUM is the authoritative source.