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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Kimmel Center, Inc. f/k/a Regional Performing Arts Center, Inc. v. Vietnam Domain Privacy Services / Pham Dinh Nhut

Case No. D2015-0765

1. The Parties

The Complainant is Kimmel Center, Inc. f/k/a Regional Performing Arts Center, Inc. of Philadelphia, Pennsylvania, United States of America, represented by Stradley Ronon Stevens & Young, LLP, United States of America.

The Respondent is Vietnam Domain Privacy Services of Ho Chi Minh City, Viet Nam / Pham Dinh Nhut of Ho Chi Minh City, Viet Nam, self-represented.

2. The Domain Name and Registrar

The disputed domain name <kimelcenter.org> is registered with April Sea Information Technology Corporation (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 28, 2015. On April 29, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 6, 2015, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on May 8, 2015 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on May 11, 2015. Further to the Center’s language of proceedings notification in both English and Vietnamese, the Complainant requested English to be the language of proceedings on May 11, 2015. On May 12, 2015, the Respondent requested Vietnamese to be the language of proceedings.

The Center verified that the Complaint together with amended 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 in both English and Vietnamese, and the proceedings commenced on May 13, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was June 2, 2015. The Respondent did not submit any formal response.

The Center appointed Dr. Hong Xue as the sole panelist in this matter on June 10, 2015. 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

The Complainant provides the services through presentations of works of performing arts. The Complainant’s service marks KIMMEL CENTER, INC. and KIMMEL CENTER, INC. FOR THE PERFORMING ARTS have been registered in the United States of America.

The Respondent registered the disputed domain name <kimelcenter.org> on October 11, 2005.

5. Parties’ Contentions

A. Complainant

The Complainant contends that the disputed domain name <kimelcenter.org> is confusingly similar to its registered service mark KIMMEL CENTER, INC.

The Complainant contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name.

The Complainant contends that the disputed domain name was registered and is being used in bad faith.

The Complainant requests that the disputed domain name <kimelcenter.org> be transferred to it.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

A. Language of Proceeding

The language of the registration agreement for the disputed domain name <kimelcenter.org>, as confirmed by the Registrar, is Vietnamese. The Complainant has requested that the language of the proceeding be English and has presented the reasons. The Responded sent an email communication in English and requested Vietnamese to be the language of proceeding.

According to paragraph 11(a) of the Rules, unless otherwise agreed by the Parties, or specified otherwise in the registration agreement, the language of the administrative proceeding shall be the language of the registration agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.

Among other circumstances, the respondent’s ability to clearly understand the language of the complaint, and the complainant’s being disadvantaged by being forced to translate, may both support a panel’s determination that the language of the proceeding remains the language of the complaint, even if it is different from the language of the registration agreement (L’Oreal S.A. v. MUNHYUNJA, WIPO Case No. D2003-0585).

According to the Rules, paragraph 10(b), the Panel shall ensure that the parties are treated with equality and that each party is given a fair opportunity to present its case. Therefore a panel shall objectively assess the parties’ language ability in the proceeding.

In the present case, the Panel notes that the disputed domain name, <kimelcenter.org>, is composed of English words. The Complainant claims that the website at the disputed domain name was also in English. In addition, the Respondent, while indicating its desire for the proceedings to be conducted in Vietnamese, made its submission in English. The Panel, therefore, finds that the Respondent has sufficient capacity to understand and use English. On the other hand, the Complainant has submitted the Complaint in English and would bear considerable costs to translate all the submissions into and take part in the proceeding in the language of the registration agreement.

Having regard to all the circumstances, this Panel determines under the Rules, paragraph 11(a) that English shall be the language of the proceeding.

B. Identical or Confusingly Similar

Pursuant to the Policy, paragraph 4(a)(i), a complainant must prove that a disputed domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights. In line with such requirement, a complainant must prove its trademark or service mark right and the similarity between the disputed domain name and its trademark or service mark.

The Panel notes that before the registration of the disputed domain name the Complainant had used KIMMEL CENTER, INC. in connection with performing arts in the United State of America. In addition, the mark KIMMEL CENTER, INC. has been registered by the Complainant in the United States of America.

The disputed domain name is <kimelcenter.org>. Apart from the generic Top-Level Domain suffix “.org”, the disputed domain name consists of “kimelcenter”, which can easily be read as “kimel” and “center” and very similar to the Complainant’s mark KIMMEL CENTER, INC., both visually and phonetically. Although the space between “Kimmel” and “Center” is omitted and one letter “m” is removed from “Kimmel”, the Panel finds the disputed domain name <kimelcenter.org>, as a whole, is confusingly similar to the Complainant’s mark KIMMEL CENTER, INC.

The Panel therefore finds that the disputed domain name <kimelcenter.org> is confusingly similar to the Complainant’s service mark KIMMEL CENTER, INC. Accordingly, the Complainant has proven the first element required by paragraph 4(a) of the Policy.

C. Rights or Legitimate Interests

The Complainant asserts, and provides evidence to demonstrate, that the Respondent has no rights or legitimate interests in the disputed domain name and, as stated above, the Respondent did not provide any information to the Panel asserting any rights or legitimate interests it may have in the disputed domain name <kimelcenter.org>.

It is apparent from the Complaint that there is no connection between the Respondent and the Complainant or its business. Paragraph 4(c) of the Policy lists a number of circumstances which can be taken to demonstrate a respondent’s rights or legitimate interests in a domain name. However, there is no evidence before the Panel that any of the situations described in paragraph 4(c) of the Policy apply here. To the contrary, the lack of any Response leads the Panel to draw a negative inference.

Therefore, and also in light of the Panel’s findings below, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name <kimelcenter.org>. Accordingly, the Complainant has proven the second element required by paragraph 4(a) of the Policy.

D. Registered and Used in Bad Faith

The Complainant contends that the Respondent registered and is using the disputed domain name in bad faith. The Respondent did not respond to these contentions.

According to the statement provided by the Complainant, the Respondent’s website at the disputed domain name <kimelcenter.org> offers the similar services, or resolves to web pages containing pay-per-click links that redirects users to the third party websites. The Complainant, however, does not provide the pertinent evidence to support its statement.

The Panel notes that the disputed domain name does not resolve to any website, at least during the proceeding of this case.

Although at the time the Panel viewed the disputed domain name <kimelcenter.org> it is not resolvable, the Respondent, as the registrant, is capable of restoring any content displayed at the disputed domain name anytime. Considering the confusing similarity between the disputed domain name and the Complainant’s service mark, and the Complainant’s unrebutted allegations of prior bad faith use of the disputed domain name, the Panel finds that the Respondent’s current passive holding of the disputed domain name poses a substantive threat to the legitimate interest of the Complainant’s service mark right. See paragraph 3.2 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”).

The Panel therefore finds that this is adequate to conclude that the Respondent has registered and is using the disputed domain name in bad faith under the Policy, paragraph 4(b). Therefore, the Complainant has successfully proven the third element required by paragraph 4(a) of the Policy.

7. Decision

For all 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 <kimelcenter.org> be transferred to the Complainant.

Dr. Hong Xue
Sole Panelist
Date: June 24, 2015

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