The Complainant is Acindar Industria Argentina De Aceros S.A., Argentina, represented by Nameshield, France.
The Respondent is Hong young jin, Republic of Korea.
The disputed domain name <acindar.com> is registered with Marcaria.com International, Inc. (the “Registrar”).
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on September 25, 2020. On September 25, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 1, 2020, 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 for the disputed domain name, and informing the Center that English is the language of the registration agreement for the disputed domain name.
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 and 4, the Center formally notified the Respondent of the Complaint, and the proceeding commenced on October 6, 2020. In accordance with the Rules, paragraph 5, the due date for Response was October 26, 2020. The Respondent submitted a language of procedure request on October 6, 2020. The Respondent did not submit any formal response. The Center notified the Parties of commencement of Panel Appointment on October 27, 2020.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on November 3, 2020. 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.
The Complainant is an Argentinian steel, agronomy, industry and construction company founded in 1942, operating under the trade mark ACINDAR (the “Trade Mark”). The Complainant is the owner of numerous registrations for the Trade Mark in several jurisdictions, including trade mark registration No. 2479321 in the United States of America, registered on August 21, 2001.
The Respondent is an individual located in the Republic of Korea.
The disputed domain name was registered on September 11, 2020.
The disputed domain name previously resolved to a website in English providing sponsored links to construction related websites (the “Website”). Following the Complainant’s cease and desist letter, sent to the Respondent on September 15, 2020, the Website was taken down, and the disputed domain name is currently inactive.
The Complainant contends that the disputed domain name is identical or confusingly similar to the Trade Mark, the Respondent has no rights or legitimate interests in respect of the disputed domain name, and that the disputed domain name was registered and is being used in bad faith.
The Respondent sent an email communication to the Center regarding the language of the communications noting that English is not his first language, stating that he had read the information sent using an online translation tool, but he did not reply to the Complainant’s contentions.
The language of the Registration Agreement for the disputed domain name is English. As the Center informed the Parties, pursuant to the Rules, paragraph 11, in the absence of an agreement between the Parties, or unless specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement.
In view of all the above, the Panel will proceed in English.
In a proceeding under the Policy, the Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail.
The Panel finds that the Complainant has rights in the Trade Mark acquired through use and registration. Disregarding the generic Top-Level Domain (“gTLD”) “.com”, the disputed domain name is identical to the Trade Mark. The Panel therefore finds that the disputed domain name is identical to the Trade Mark.
Paragraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a disputed domain name:
(i) Before any notice to the respondent of the dispute, the 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) The respondent (as an individual, business, or other organization) has been commonly known by the disputed domain name even if the respondent has acquired no trade mark or service mark rights; or
(iii) The respondent is making a legitimate non commercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.
The Complainant has not authorised, licensed, or permitted the Respondent to register or use the disputed domain name or to use the Trade Mark. The Panel finds on the record that there is a prima facie case established by the Complainant that the Respondent has no rights or legitimate interests in the disputed domain name, and the burden is thus on the Respondent to produce evidence to rebut this presumption.
The Respondent has failed to show that he has acquired any trade mark rights in respect of the disputed domain name or that the disputed domain name has been used in connection with a bona fide offering of goods or services. To the contrary, the disputed domain name previously resolved to the Website, containing pay-per-click links relating to the construction related goods and services provided by the Complainant under the Trade Mark; and it has subsequently not been used.
There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name.
There has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name.
In addition, the Panel notes that the disputed domain name is identical to the Trade Mark, which carries a high risk of implied affiliation.
In all the circumstances, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name.
In light of the Complainant’s rights in the Trade Mark (acquired through use and registration many years prior to the registration of the disputed domain name), the repute of the Trade Mark in the construction industry, the fact the disputed domain name is identical to the Trade Mark, the manner of use of the disputed domain name previously highlighted in section 6.B, the Respondent’s passive holding of the disputed domain name following receipt of the Complainant’s letter of demand and the Respondent’s failure to submit any response to the Complainant’s contentions, the Panel finds that the requisite element of bad faith has been made out.
The Panel therefore finds that the disputed domain name has been registered and is being used in bad faith.
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 <acindar.com> be transferred to the Complainant.
Sebastian M.W. Hughes
Sole Panelist
Dated: November 13, 2020