WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Longyear TM Inc. v. Lin Chang, Chine Geo-Exp Drilling Equipment Limited

Case No. D2014-0379

1. The Parties

Complainant is Longyear TM Inc. of South Jordan, Utah, United States of America ("US"), represented by Clark Hill PLC, US.

Respondent is Lin Chang, Chine Geo-Exp Drilling Equipment Limited of Shanghai, China.

2. The Domain Name and Registrar

The disputed domain name <longyeardiamondcoredrilling.com> is registered with Bizcn.com, Inc. (the "Registrar").

3. Procedural History

Complaint was filed in English with the WIPO Arbitration and Mediation Center (the "Center") on March 11, 2014. On March 12, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 13, 2014, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details.

On March 19, 2014, the Center sent an email communication to the parties in both Chinese and English regarding the language of the proceeding. On March 19, 2014, the Center received an email communication from Respondent in the English language, however Respondent did not comment on the language of the proceeding. On March 22, 2014, Complainant requested that English be the language of the proceeding.

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 Respondent of the Complaint in both Chinese and English, and the proceeding commenced on March 27, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was April 16, 2014. Except for the email communication from Respondent in English (the content of which is reproduced under section 5.B. below) dated March 19, 2014, the Center did not receive any formal Response by the specified Response due date. On April 17, 2014, the Center informed the parties that it would proceed with the panel appointment.

The Center appointed Yijun Tian as the sole panelist in this matter on April 25, 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.

4. Factual Background

Complainant, Longyear TM Inc, is a company incorporated in South Jordan, Utah, US. Complainant was established since 1890 and is a leading diamond core drilling company in the world (Annex 12 to the Complaint).

Complainant has exclusive rights in numerous registered LONGYEARand BOART LONGYEAR trademarks (hereafter the "LONGYEAR Marks") globally, including Chinese Trademark No. 1124632, registered on November 7, 1997 (including LONGYEAR Mark since 2010), Community Trademark No. 1211044, registered on July 31, 2000 and US Trademark No. 615697, registered on November 8, 1955 (Annex 6 to the Complaint). Complainant is also the owner of more than a dozen domain names incorporating the LONGYEAR Marks, such as <longyear.biz>, <longyear.com>, <longyear.info>, and <boartlongyear.com>.

Respondent is Lin Chang, Chine Geo-Exp Drilling Equipment Limited of Shanghai, China. The disputed domain name <longyeardiamondcoredrilling.com> was registered on April 26, 2012, long after the LONGYEAR Marks were registered.

5. Parties' Contentions

A. Complainant

(a) The disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights.

Complainant is the owner of more than 200 trademark registrations around the world that incorporate the word "Long year", including 29 registrations for the mark LONGYEAR (Annex 6 to the Complaint).

Among Complainant's LONGYEAR registrations are the following: Chinese Trademark No. 6340743, registered on December 28, 2011 (for the mark LONGYEAR) (Annex 7 to the Complaint); Chinese Trademark No. 6340744, registered on March 28, 2010 (for the mark LONGYEAR) (Annex 8 to the Complaint); Chinese Trademark No. 1124632, registered on November 7, 1997 (for the mark BOART LONGYEAR) (Annex 9 to the Complaint); Chinese registration No. 1187254, registered on June 28, 1998 (for the mark BOARTY LONGYEAR) (Annex 10 to the Complaint); and Chinese registration No. 1129798, registered on November 21, 2007 (for the mark BOART LONGYEAR) (Annex 11 to the Complaint);

Complainant is the owner of several registrations under the Madrid Protocol which have been validated in China. Complainant is the owner of several registrations under the Madrid Protocol which have been validated in China (Annex 6 to the Complaint).

Complainant has been in the diamond core drilling business since 1890 and has used the LONGYEAR Marks in connection with drilling and mining goods and services continually since at least 1908.

Complainant received its first trademark registration for the LONGYEAR Marks in the US in the 1950s, but by that time, had already been conducting drilling projects throughout the world for several decades, including a 15 month-long project in China in 1919.

Complainant is also the owner of more than a dozen domain names incorporating the LONGYEAR Marks, such as <longyear.biz>, <longyear.com>, <longyear.info>, and <boartlongyear.com>.

The disputed domain name <longyeardiamondcoredrilling.com> is comprised solely of Complainant's trademark, which is well-known in the drilling industry and which has been in use around the world for nearly a century, and "diamond core drilling", which are descriptive words describing the type of services which Complainant provides.

This combination of registered trademark with descriptive words describing the good or services which the trademark is used has been found to be confusingly similar to the registered trademark in previous UDRP decisions (Annexes 13 and 14 to the Complaint).

The inclusion of a trademark in its entirety in a domain name has been found sufficient to render the domain name confusingly similar to Complainant's trademark (Annexes 13 and 15 to the Complaint).

Because Respondent's use of "Longyear" is identical to Complainant's trademark, and the remainder of the disputed domain name consists of descriptive language describing Complainant's goods and services, the disputed domain is confusingly similar to Complainant's registered trademark.

(b) Respondent has no rights or legitimate interests in respect of the disputed domain name.

Respondent has no rights or legitimate interests in respect of the disputed domain name, because Respondent is not commonly known by the disputed domain name, and made no effort to associate itself with the trademark until after being notified of Complainant's trademark rights.

Respondent, Lin Chang, registered the disputed domain name on April 26, 2012 under the corporate entity "Chine Geo-Exp Drilling Equipment Limited" (Annex 1 to the Complaint).

Prior to Complainant notifying Respondent of Complainant's trademark rights, in December 2013, Respondent's website referenced only the "Chine Geo-Exp Drilling Equipment Limited" name (Annex 16 to the Complaint).

Following Complainant's rejection of Respondent's demand of approximately USD 25,000 (RMB 150,000) to purchase the disputed domain name, Respondent took down the content of its website, eventually replacing it with the home page shown in Annex 3 to the Complaint.

Prior to Complainant contacting Respondent, Respondent's website did not anywhere reference the word "Longyear", either as part of a corporation name or anything else, other than as part of the disputed domain name.

Only after Respondent was notified of Complainant's trademark rights in the LONGYEAR Marks did it redesign the website to reference the company name "Sichuan Longyear exploration drilling engineering Corp" (Annex 3 to the Complaint).

Complainant has been unable to locate any reference to "Sichuan Longyear exploration drilling engineering Corp" anywhere, except the disputed domain name (Annex 17 to the Complaint).

Respondent is not making a legitimate noncommercial or fair use of the disputed domain name. Respondent's use of Complainant's LONGYEAR Marks is clearly commercial, as it advertises diamond core drilling services for sale, and indicates a past history of partnering with other companies on drilling projects (Annex 3 to the Complaint).

Respondent's use of Complainant's LONGYEAR Mark is not a fair use because it is in no way affiliated with, or sponsored or endorsed by, Complainant.

Respondent's use of Complainant's LONGYEAR Mark is intended to divert consumer to Respondent's website under the mistaken belief that Respondent is affiliated or associated with Complainant.

Respondent's previous website content specifically referenced Complainant in a press release regarding one of Complainant's projects, further encouraging consumers to believe that Respondent is in some way affiliated with Complainant (Annex 16 to the Complaint Annex 16 to the Complaint).

(c) The disputed domain name was registered and is being used in bad faith.

Respondent registered it approximately five years after registration of Complainant's LONGYEAR Marks in China, refused to sell the disputed domain name except for a price well in excess of Respondent's cost.

Complainant has been operating in China for nearly a century, and is the largest drilling company of this kind in the world. Complainant owns a number of LONGYEAR Marks. Complainant is well-known in the diamond core drilling industry worldwide, including in China.

Respondent registered the disputed domain name and uses it to offer services that compete directly with Complainant, despite having no history of being known by anything approximating Complainant's LONGYEAR Marks.

Accordingly, Respondent's registration of the disputed domain name represents nothing more than a bad faith attempt to divert customers to Respondent's website through the false implication that Respondent is associated with or sponsored by, Complainant.

Respondent has also refused to sell the disputed domain name for less than USD 25,000 (RMB 150,000 ), which far exceeds Respondent's costs in registering the disputed domain name (Annexes 4 and 4a to the Complaint).

Respondent refused to lower its asking price to anything approximating its costs, and instead took down the content of the website, replacing references to the company name listed in the Whois report which the supposed company name "Sichuan Longyear exploration drilling engineering Corp" (Annex 3 to the Complaint).

Respondent continues to use the disputed domain name to offer for sale precisely the same services offered by Complainant, demonstrating that it clearly intends to play off of Complainant's name, which further evidences Respondent's bad faith in registering the disputed domain name.

Respondent's cached website went as far as to include Complainant in the "Friend Links" at the bottom of the page (Annex 16 to the Complaint). This belies the fact that there is not now, and has never been, a business relationship between Respondent and Complainant.

The inclusion of a link to Complainant on the bottom of Respondent's website did nothing more than create further confusion between the companies and generate a false impression that Respondent is affiliated with or sponsored by Complainant.

B. Respondent

Respondent did not formally respond to Complainant's contentions. Respondent only made a reply through email, and made following arguments:

Respondent never infringed any company's reputation and advertised its company at any company's name.

"www.longyeardiamondcoredrilling.com" is Respondent's company homepage (Sichuan Longyear exploration drilling engineering Corp)

Respondent carried out drilling contracts in Southwest area of China, and so it does not accept any Complaint claimed by other company.

A person sent email to Respondent, asking Respondent to sell the disputed domain name to him at cost CNY 3000, but Respondent refused him.

Later, a company appointed his agency to ask Respondent to sell the disputed domain name at CNY 18,000, and Respondent refused again.

Finally, Respondent confirmed that it never plans to sell the disputed domain name to anybody.

Respondent formally declares that its company just does its own business and will not advertise at any other company's name.

Respondent has not seen any information on its website infringing other company's name or reputation.

The Complaint is invalid, and Respondent does not accept any fraud from other companies.

If necessary, Respondent can translate the email between the private person and its company's person to English for Complainant's reference.

6. Discussion and Findings

6.1 Language of the Proceeding

The language of the registration agreement for the disputed domain name is Chinese. Pursuant to the Rules, paragraph 11, in the absence of an agreement between the parties, or specified otherwise in the registration agreement, the language of the administrative proceeding shall be the language of the registration agreement. From the evidence presented on the record, no agreement appears to have been entered into between Complainant and Respondent to the effect that the language of the proceeding should be English. Complainant filed initially its Complaint in English, and has requested that English be the language of the proceeding for the following reasons:

(a) Complainant is headquartered in the US and it, and its representative, utilizes English.

(b) Complainant's website is rendered only in English. Even Complainant's country-specific domain names, such as the Czech Republic domain name <boartlongyear.cz> are rendered in English, though Czech, and not English is the official language of Czech Republic (Exhibit A to the Complaint).

(c) Respondent's website, as Complainant noted in its Complaint, is also rendered almost exclusively in English, and utilizes complex vocabulary, including technical vocabulary relevant to the diamond core mining industry.

(d) After being sent a courtesy copy of the Complaint, Respondent sent a communication to Complainant, rendered largely in English, clearly reflecting Respondent's understanding the Complaint's contents (Exhibit B to the Complaint).

(e) Respondent has a far greater understanding of English than Complainant, or its representative, has of Chinese. If the proceedings are conducted in Chinese, Complainant will have to incur the added expense of translating documents while delaying the proceedings as necessary to complete the translations.

(f) Respondent took down its English language website and replaced it with another English language website, further demonstrating Respondent's command of English.

(g) Complainant's position regarding the language of proceedings is consistent both with paragraph 11 of the Rules and with findings in previous UDRP cases (Exhibits C-E to the Complaint).

The Panel notes that Respondent did not make any submission with respect to the language of the proceeding and did not object to the use of English as the language of the proceeding.

The Panel also notes that Respondent sent an email communication in English (content reproduced under section 5.B. above). Therefore, in the Panel's assessment, Respondent has had no difficulty in understanding Complainant's contentions.

Considering these circumstances, the Panel finds the choice of English as the language of the present proceeding is fair to both parties and is not prejudicial to either one of the parties in his or her ability to articulate the arguments for this case. Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that English shall be the language of the proceeding, and the decision will be rendered in English.

6.2. Discussion and Findings

Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that the disputed domain name should be cancelled or transferred:

(i) The disputed domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights;

(ii) Respondent has no rights or legitimate interests in respect of the disputed domain name; and

(iii) The disputed domain name has been registered and is being used in bad faith.

On the basis of the evidence introduced by Complainant and in particular with regard to the content of the relevant provisions of the Policy (paragraphs 4(a), (b), (c)), the Panel concludes as follows:

A. Identical or Confusingly Similar

The Panel finds that Complainant has rights in the LONGYEAR Marks acquired through registration internationally. Complainant has a widespread reputation as a leading company in drilling industry in the world, including China.

The disputed domain name <longyeardiamondcoredrilling.com> comprises the LONGYEAR Marks in their entirety. The disputed domain name only differs from Complainant's trademark by the suffixes of the terms "diamond", "core" and "drilling" to the LONGYEAR Marks. This does not eliminate the confusing similarity between Complainant's registered trademark and the disputed domain name.

Previous UDRP panels have consistently held that a domain name is identical or confusingly similar to a trademark for purposes of the Policy "when the domain name includes the trademark, or a confusingly similar approximation, regardless of the other terms in the domain name" (Wal-Mart Stores, Inc. v. Richard MacLeod d/b/a For Sale, WIPO Case No. D2000-0662).

Generally a respondent "may not avoid likely confusion by appropriating another's entire mark and adding descriptive or non-distinctive matter to it". (The Argento Wine Company Limited v. Argento Beijing Trading Company, WIPO Case No. D2009-0610; General Electric Company v. CPIC NET and Hussain Syed, WIPO Case No. D2001-0087; PCCW-HKT DataCom Services Limited v. Yingke, ADNDRC Case No. HK0500065).

Mere additions of the descriptive terms "diamond", "core" and "drilling" as suffixes to Complainant's mark fails to distinguish. By contrast, it may increase the likelihood of confusion since the diamond core drilling is the major business of Complainant worldwide, including in China. Internet consumers may believe that the Respondent's website, which is resolved by the disputed domain name, is an online website authorized or operated by Complainant.

Thus, the Panel finds that the additional suffixes are not sufficient to negate the confusing similarity between the disputed domain name and the LONGYEAR Marks.

The Panel therefore holds that the Complaint fulfils the first condition of paragraph 4(a) of the Policy.

B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy provides a list of circumstances any of which is sufficient to demonstrate that Respondent has rights or legitimate interests in the disputed domain name:

(i) before any notice to Respondent of the dispute, Respondent's use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or

(ii) Respondent (as an individual, business, or other organization) has been commonly known by the disputed domain name, even if Respondent has acquired no trademark or service mark rights; or

(iii) Respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

The overall burden of proof on this element rests with Complainant. However, 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 Respondent to rebut Complainant's contentions. If Respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy. (Danzas Holding AG, DHL Operations B.V. v. Ma Shikai, WIPO Case No. D2008-0441; WIPO Overview 2.0, paragraph 2.1 and cases cited therein).

Complainant has rights in the LONGYEAR Marks globally, including Chinese Trademark No. 1124632, registered on November 7, 1997 (including LONGYEAR Mark since 2010), CTM Trademark No. 1211044, registered on July 31, 2000 and US Trademark No. 615697, registered on November 8, 1955 – which long precede Respondent's registration of the disputed domain name (April 26, 2012).

Respondent is not an authorized dealer of LONGYEAR branded products or services. Complainant has therefore established a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name and thereby shifted the burden to Respondent to produce evidence to rebut this presumption (The Argento Wine Company Limited v. Argento Beijing Trading Company, WIPO Case No. D2009-0610; Do The Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624; Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455).

Based on the following reasons, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name:

(a) There has been no evidence adduced to show that Respondent is using the disputed domain name in connection with a bona fide offering of goods or services. Respondent has not provided sufficient evidence of a legitimate use of the disputed domain name or reasons to justify the choice of the word "Longyear" in its business operation. There has been no evidence to show that Complainant has licensed or otherwise permitted Respondent to use the LONGYEAR Marks or to apply for or use any domain name incorporating the LONGYEAR Marks and Respondent has, through the use of a confusingly similar domain name, created a likelihood of confusion with the LONGYEAR Marks. Moreover, according to the information in the Complaint, although Respondent registered the disputed domain name on April 26, 2012 under the corporate entity "Chine Geo-Exp Drilling Equipment Limited" (Annex 1 to the Complaint), prior to Complainant contacting Respondent, Respondent's website did not anywhere reference the word "Longyear", either as part of a corporation name or anything else, other than as part of the disputed domain name. Noting also that apparently no clarification as to Respondent's relationship to Complainant is made on the Respondent's website (e.g. Respondent's cached website went as far as to include Complainant in the "Friend Links" at the bottom of the page (Annex 16 to the Complaint), potential partners and Internet users are led to believe that the Respondent's website "longyeardiamondcoredrilling.com" is either Complainant's site or a site of an official authorized partner of Complainant, which it is not;

(b) There has been no evidence adduced to show that Respondent has been commonly known by the disputed domain name. As mentioned above, prior to Complainant contacting Respondent, Respondent's website did not anywhere reference the word "Longyear". Only after Respondent was notified of Complainant's trademark rights in the LONGYEAR Marks did it redesign the website to reference the company name "Sichuan Longyear exploration drilling engineering Corp" (Annex 3 to the Complaint). Moreover, there has been no evidence adduced to show that Respondent has any registered trademark rights with respect to the disputed domain name. Respondent registered the disputed domain name <longyeardiamondcoredrilling.com> on April 26, 2012. The disputed domain name is confusingly similar to Complainant's LONGYEAR Marks; and.

(c) There has been no evidence adduced to show that Respondent is making a legitimate noncommercial or fair use of the disputed domain name. By contrast, according to the information provided by Complainant, Respondent's use of Complainant's LONGYEAR Marks is clearly commercial, as it advertises diamond core drilling services for sale, and indicates a past history of partnering with other companies on drilling projects (Annex 3 to the Complaint). Moreover, Respondent's previous website content specifically referenced Complainant in a press release regarding one of Complainant's projects, further encouraging consumers to believe that Respondent is in some way affiliated with Complainant (Annex 16 to the Complaint).

The Panel finds that Respondent has failed to produce any evidence to establish its rights or legitimate interests in the disputed domain name. The Panel therefore holds that the Complaint fulfils the second condition of paragraph 4(a) of the Policy.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy sets out four circumstances which, without limitation, shall be evidence of the registration and use of the disputed domain name in bad faith, namely:

(i) circumstances indicating that Respondent has registered or acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registrations to Complainant who is the owner of the trademark or service mark or to a competitor of Complainant, for valuable consideration in excess of Respondent's documented out-of-pocket costs directly related to the disputed domain name; or

(ii) Respondent has registered the disputed domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or

(iii) Respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the disputed domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent's website or other on-line location, by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of Respondent's website or location or of a product or service on Respondent's website or location.

The Panel concludes that the circumstances referred to in paragraph 4(b) (iv) of the Policy are applicable to the present case and upon the evidence of these circumstances and other relevant circumstances, it is adequate to conclude that Respondent has registered and is using the disputed domain name in bad faith.

a) Registered in Bad Faith

The Panel finds that Complainant has a widespread reputation in the LONGYEAR Marks with regard to its products and services. Complainant has registered its LONGYEAR Marks internationally, including Chinese Trademark No. 1124632, registered on November 7, 1997 (including LONGYEAR Mark since 2010) (Annex 6 to the Complaint). Moreover, according to the information provided by Complainant, Respondent uses the disputed domain name for advertising diamond core drilling services for sale, and indicating a past history of partnering with other companies on drilling projects (Annex 3 to the Complaint). Respondent's previous website, resolved by <longyeardiamondcoredrilling.com>, specifically referenced Complainant in a press release regarding one of Complainant's projects (Annex 16 to the Complaint). Respondent's cached website included Complainant in the "Friend Links" at the bottom of the page (Annex 16 to the Complaint). Respondent would not have included Complainant in the "Friend Links" or referenced Complainant in a press release regarding one of Complainant's projects if it was unaware of Complainant's reputation. In other words, in the Panel's assessment, it is not conceivable that Respondent would not have had actual notice of Complainant's trademark right at the time of the registration of the disputed domain name. The Panel therefore finds that the LONGYEAR Marks are not ones those traders could legitimately adopt other than for the purpose of creating an impression of an association with Complainant. (The Argento Wine Company Limited v. Argento Beijing Trading Company, WIPO Case No. D2009-0610).

Moreover, as to the circumstances under paragraph 4(b)(i) of the Policy, Complainant claimed that Respondent was in actuality offering and selling the disputed domain name at a price that is likely to substantially exceed its out-of-pocket costs of registration (at the price RMB 150,000 or almost USD 25,000 for sale of the disputed domain name) (Annexes 4 and 4a to the Complaint). Complainant further claimed that Respondent refused to lower its asking price to anything approximating it costs, and instead took down the content of the website, replacing references to the company name listed in the WhoIs report which the supposed company name "Sichuan Longyear exploration drilling engineering Corp" (Annex 3 to the Complaint). Respondent claimed Respondent refused the offers made by Complainant twice, and confirmed to Complainant and that "it never plans to sell the disputed domain name to anybody". Since the content of Respondent's previous and existing website is mainly about providing drilling services, and Respondent has explicitly expressed that it refused to sell the disputed domain name to anybody, the Panel finds that there has been no evidence adduced to show that 'Respondent has registered or acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registrations to Complainant who is the owner of the trademark or service mark or to a competitor of Complainant, for valuable consideration in excess of Respondent's documented out-of-pocket costs directly related to the disputed domain name'. In other words, only the circumstances referred to paragraph 4(b)(iv) of Policy, rather than those in paragraph 4(b)(i) of Policy, are not applicable to the present case.

In addition, Respondent has chosen not to formally respond to Complainant's allegations. According to the panel's decision in The Argento Wine Company Limited v. Argento Beijing Trading Company, WIPO Case No.D2009-0610, "the failure of the Respondent to respond to the Complaint further supports an inference of bad faith". (See also Bayerische Motoren Werke AG v. (This Domain is For Sale) Joshuathan Investments, Inc., WIPO Case No. D2002-0787). Thus, the Panel concludes that the disputed domain name was registered in bad faith with the intent to create an impression of an association with Complainant's LONGYEAR branded products and services.

b) Use in Bad Faith

Complainant has adduced evidence to prove that by using a confusingly similar disputed domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent's website or other on-line location, by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of Respondent's website or location or of a product or service on Respondent's website or location. Complainant claimed that Respondent's use of Complainant's LONGYEAR Marks is clearly "commercial", as it advertises diamond core drilling services for sale, and indicates a past history of partnering with other companies on drilling projects (Annex 3 to the Complaint).

To establish an "intention for commercial gain" for the purpose of this Policy, evidence is required to indicate that it is "more likely than not" that intention existed (The Argento Wine Company Limited v. Argento Beijing Trading Company, supra;).

Given the widespread reputation of the LONGYEAR Marks, the Panel finds that the public is likely to be confused into thinking that the disputed domain name has a connection with Complainant, contrary to the fact. There is a strong likelihood of confusion as to the source, sponsorship, affiliation or endorsement of the website to which the disputed domain name is resolved. In other words, Respondent has, through the use of a confusingly similar domain name, created a likelihood of confusion with the LONGYEAR Marks. Potential partners and Internet users are led to believe that the website resolved by the disputed domain name is either Complainant's website or the website of official authorized partners of Complainant, which it is not. Moreover, Respondent did not formally respond to the Complaint. The Panel therefore concludes that the disputed domain name was used by Respondent in bad faith.

In summary, Respondent, by choosing to register and use a domain name which is confusingly similar to Complainant's trademark, intended to ride on the goodwill of Complainant's trademark in an attempt to exploit, for commercial gain, Internet users destined for Complainant. In the absence of evidence to the contrary from Respondent, the choice of the disputed domain name and the conduct of Respondent as far as the infringing website to which the disputed domain name resolves is indicative of registration and use of the disputed domain name in bad faith.

The Panel therefore holds that the Complaint fulfils the third condition of paragraph 4(a) of the Policy.

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 disputed domain name <longyeardiamondcoredrilling.com> be transferred to Complainant.

Yijun Tian
Sole Panelist
Dated: May 13, 2014