VoiceStream Wireless Corporation v. Hanjin Ko

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

VoiceStream Wireless Corporation v. Hanjin Ko

Case No: D2001-1411

1. The Parties

The Complainant is VoiceStream Wireless Corporation of 12920 SE 38th

Street, Bellevue, Washington 98006, United States of America.

The Respondent is Hanjin Ko of 96-6 Padong Suseonggu, Tageu 706-07, Republic

of Korea.

2. The Domain Name and Registrar

The domain name at issue is <voicestream.org>.

The Registrar is Register.com, Inc.

3. Procedural History

The WIPO Arbitration and Mediation Center [the Center] received the Complaint

on November 29, 2001 [electronic version] and on December 3, 2001[hard copy].

The Center verified that the Complaint satisfies the formal requirements of

the ICANN Uniform Domain Name Dispute Resolution Policy [the Policy], the Rules

for Uniform Domain Name Dispute Resolution Policy [the Rules], and the Supplemental

Rules for Uniform Domain Name Dispute Resolution Policy [the Supplemental Rules].

The Complainant made the required payment to the Center.

The formal date of the commencement of this administrative proceeding is December 17, 2001.

On December 4 and December 11, 2001, the Center transmitted via email to Register.com,

Inc requests for registrar verification in connection with this case and on

December 14, 2001, Register.com, Inc transmitted by email to the Center Register.com's

verification response confirming that the registrant is Hanjin Ko who is also

the contact for both administrative and billing purposes.

Having verified that the Complaint satisfied the formal requirements of the

Policy and the Rules, the Center transmitted on December 17, 2001 to <postmaster@voicestream.org>;

and to <eweb@netsgo.com> this Notification of Complaint and Commencement

of Administrative Proceeding. The Center advised that the Response was due by

January 6, 2002. On the same day the Center transmitted by fax and by mail copies

of the foregoing documents to Hanjin Ko, 63-51 Beomeo 4-Dong, Suseonggu, Taegu

706-819, Republic of Korea.

No Response was received from the Respondent by the due date of January 6,

2002. On January 9, 2002, Notice of Respondent Default was sent to the Complainant

and to the Respondent using the same contact details and methods as were used

for the Notification of Complaint and Commencement of Administrative Proceeding.

However, on December 3, 2001, the Respondent emailed the Center acknowledging

receipt of the Complaint and requesting that the documents be sent to him in

the Korean language and that the language of the administrative proceeding should

be Korean. Then on December 17, 2001, the Respondent emailed the Center repeating

the request that the proceeding should be in the Korean language, since he did

not have the financial means to pay for translations into English. That email

also set out in English a Response. A formal Response properly formatted was

subsequently received by the Center on January 12, 2002 [electronic version]

and on January 17, 2002 [hard copy]. That formal Response was in substance verbatim

to the earlier Response contained in the email of December 17, 2001.

The Complainant responded to the Center by email dated January 23, 2002, clarifying

an aspect arising from the Response. Further reference will be made to this

in paragraph 5.4.2 below.

The language prescribed governs communication in this administrative proceeding

[Rules, paragraph 2(c)]. The language of the proceedings is the language of

the Registration Agreement [ Rules, paragraph 11]. The language of Registration

Agreement with Register.com, Inc is English and it is, therefore, appropriate

that English should be the language of this administrative proceeding.

As to the lateness of the Response, it is the duty of the Panel to ensure that

the Parties are treated with equality and that each Party is given fair opportunity

to present its case [Rules, paragraph 10(b)] and, further, that the administrative

proceeding takes place with due expedition [Rules, paragraph 10(c)]. Since the

substance of the Response was received [January 12, 2002] only some 6

days after the due date [January 6, 2002] the Panel considers it appropriate

that the late filed formal Response be admitted.

Having received Declarations of Impartiality and Independence and Statements

of Acceptance from the three Panelists, the Center transmitted to the parties

a Notification of Appointment of Administrative Panel and Projected Decision

Date, in which Professor Sang-Hyun Song, Dr. Dan Hunter and Mr. David Perkins

were formally appointed as Panelists. The Projected Decision Date was March

27, 2002. The Panelists find that the Administrative Panel was properly constituted

and appointed in accordance with the Rules and the Supplemental Rules.

Having verified the communication records in the case file, the Administrative

Panel finds that the Center has discharged its responsibility under paragraph

2(a) of the Rules "to employ reasonably available means calculated to achieve

actual notice to Respondents". Therefore, the Administrative Panel shall

issue its Decision based upon the Complaint, the Response, the Policy, the Rules

and the Supplemental Rules.

4. Factual Background

4.1 The Business of the Complainant

4.1.1 The Complainant is a Delaware Corporation with its principal place of

business in Bellevue, Washington, United States of America. Founded in 1996,

the Complainant is one of America's largest and best-known wireless communication

providers. It is currently America's fifth largest wireless phone company, with

approximately 15,000 employees serving 5.2 million subscribers.

4.1.2 This business was originally operated by the Complainant's former parent

company, Western Wireless Corporation. In 1999 the Complainant was spun-off

by Western Wireless Corporation as a separate entity.

4.2 The Complainant's VOICESTREAM Trademark

4.2.1 From its inception in 1996 the Complainant used, as did its former parent

company, Western Wireless Corporation, the VOICESTREAM trademark to identify

its goods and services. The VOICESTREAM mark is the subject of 5 registrations

in the United States, 17 additional pending applications in the United States,

2 registrations in Mexico and a pending application in Europe. The US registrations

comprise the following

Registration

No.

Mark

International

Class(es)

Application

and Registration Dates

2,045,084

VOICESTREAM

38

Filed October 10,

1995

Registered March 11, 1997

2,060,060

VOICESTREAM

9

Filed December 15,

1995

Registered May 6, 1997

2,504,680

VOICESTREAM

38

Filed March 14, 2001

Registered November 6, 2001

2,496,008

VOICESTREAM

WIRELESS

9

Filed July 6, 2000

Registered October 9, 2001

2,507,090

VOICESTREAM

WIRELESS

38

Filed March 14, 2001

Registered November 13, 2001

4.2.2 The Complainant has spent substantial time, effort and money advertising

and promoting the VOICESTREAM trademark in the United States and elsewhere.

In particular, the Complaint sets out the following:

- The Complainant owns over 430 Personal Communication Services licenses in

the United States covering a population of 272 million people.

- In the financial year 2000, the Complainant's revenues exceeded US$1.9 billion.

- Since 1998 the internationally known actress, Jamie Lee Curtis, has advertised

the Complainant's services in print, television and radio advertisements. In

1999 the advertising campaign received the Best Overall Excellence in Marketing

award from the Cellular Telecommunications and Internet Association [CTIA}.

- The Complainant uses and operates the Global System for Mobile [GSM] communications

technology platform which has been adopted as the standard by the United States

and 158 other countries and which accounts for some 70% of the total digital

wireless market. The Complainant is the only US wireless telecommunications

provider with a national GSM wireless technology network, which gives customers

the ability to use their VOICESTREAM number when travelling internationally

and supports roaming capabilities from other GSM customers travelling to the

United States.

- The Complainant has international roaming agreements with more than 164 of

the major operators worldwide providing service in over 71 countries including:

Australia, China, Chile, France, Germany, Greece, Hong Kong, India, Italy, the

Netherlands, Russia, Saudi Arabia, Spain, Switzerland and the United Kingdom.

4.2.3 The Complaint states that the Complainant's achievements have generated

tremendous attention in the media and as a result of its use and promotion the

VOICESTREAM name and mark have become a famous and highly distinctive trademark.

4.3 The Complainant's <voicestream.com> Domain Name

The Complainant operates a website at www.voicestream.com which generates some

351,800 hits per week. Just over 50% of those hits are by customers accessing

wireless messaging services through the Complainant's related <myvoicestream.com>

domain name. During 2001, the Complainant generated an average of 2,261 hand

set sales per month through its www.voicestream.com website.

4.4 The Respondent

Nothing is known of the Respondent, whose Response gives no information about

his activities. The use made of the domain name in issue is outlined in the

Complaint [see, paragraph 5.1.1 below]. The Response refers to a website being

constructed in the near future from which the Respondent hopes to generate income.

5. The Parties' Contentions

The Complainant's Case

5.1 Identical or Confusingly Similar

The Complainant's case is that the domain name in issue is in substance identical

to its VOICESTREAM trademark. It is also confusingly similar to the VOICESTREAM

trademark.

5.1.1 The Respondent registered the domain name in issue on September 29, 2000.

It does not appear to have linked to a website until about October 2001, when

the Complainant learned that it resolved to a website called www.investorsuniverse.com.

A print out from that website shows that it offers, inter alia, what it calls

its Ambassador Program. Affiliates are invited to link www.investorsuniverse.com

to their own websites and when visitors through the Affiliate's website sign

up with InvestorsUniverse the Affiliate receives a US$1.00 fee. Each Affiliate

has its own ID so that such visitors can be identified as being introduced through

the Affiliate in question. In this way, the Complainant says the Respondent

benefits by trading-off the goodwill of the VOICESTREAM mark.

5.1.2 Further, the domain name in issue will create the impression that the

products and services accessible through www.investorsuniverse.com are affiliated

with the Complainant. So, consumers seeking the Complainant's Voicestream website,

who mistakenly use .org instead of .com, will be misdirected to

the Respondent's website and on to the www.investorsuniverse.com site. The net

result will be customer confusion and dilution of the Complainant's valuable

and distinctive VOICESTREAM trademark.

5.1.3 In addressing confusing similarity relevant considerations are

the similarity of

- the marks;

- the products and services;

- the users; and

- the channels of distribution.

The Complainant basis this proposition on See Yahoo! Inc v. Eitan Zviely,

et al. [WIPO Case No. D2000-0273].

That case involved 37 domain names which incorporated the YAHOO! trademark or

a close variant of it. The Panel found that the Respondent was deliberately

attempting to direct misled Yahoo! users to his website:

"Confusing similarity is what Zviely has been counting on"

Here, consumers seeking the Complainant's www.voicestream.com website but who

mistype or misspell the TLD and use .org instead of .com will

be misdirected to the Respondent's website with the consequences set out in

the preceding paragraph.

5.1.4 The Complainant cites cases where confusing similarity was found where

the Respondent, without justification, added .org to the Complainant's

trademark.

MSNBC Cable, LLC v. Tysys.com [WIPO

Case No. D2000-1204]. The Complainant was MSNBC, a widely known worldwide

news organisation providing up-to-the-minute news by broadcast, cable and the

Internet. The <msnbc.org> domain name in issue resolved to the Respondent's

web hosting and development company website, www.tysys.com. That website featured

commercial advertisements relating to Tysys' access to hot domains for

sale or lease. The Panel found that the domain name and the MSNBC mark were,

for all practical purposes, identical. It also found that Internet users intending

to access the Complainant's website but who reach another website through the

domain name in issue, would think mistakenly that an affiliation of some sort

existed between the Complainant and the Respondent. The Panel, finding confusing

similarity, concluded

"Were this Panel to permit a party, unrelated to a trademark owner (or its

licensee), to incorporate its trademark as a formative element for a URL but

with a different gTLD from that which the trademark owner utilises in a domain

name for its own site, the Panel would be implicitly permitting increased source

confusion and trademark dilution to occur."

United States Trust Company of New York v. Big Picture Media [WIPO

Case No. D2000-1652]. Here, the domain name in issue was <ustrust.org>.

The Complainant had registered US trademarks for banking and related services

for UNITED STATES TRUST COMPANY: UNITED STATES TRUST: and U.S. TRUST. It had

used the UNITED STATES TRUST COMPANY mark since 1853. The Panel found confusing

similarity, stating:

"The Panel has compared the disputed domain name with the Complainant's U.S.

TRUST marks and finds that the second level domain thereof is substantially

identical to the Complainant's marks. The Panel finds that there is such similarity

in sound, appearance, and connotation between the U.S. TRUST marks and the said

disputed domain name as to render said disputed domain name confusingly similar

to Complainant's U.S. TRUST marks."

EAuto, LLC v. Triple S Auto Parts, etc [WIPO

Case No. D2000-0047]. There, the domain name in issue was <eautolamps.com>.

The Complainant owned a US registered trademark for EAUTO and was in the business

of offering a full range of automotive information to companies and individuals

through its website at www.eauto.com. The Respondent had been in the automotive

lamp business for over 10 years and in 1999 registered the domain name in issue

in order to sell a full range of automobile lamps through its website under

the <eautolamps.com> domain name.

As to confusing similarity, the Panel found EAUTO was a distinctive mark, "…

albeit one at the weaker end of the spectrum." The Panel went on to state:

"When a domain name incorporates, in its entirety, a distinctive mark, that

creates sufficient similarity between the mark and the domain name to render

it confusingly similar."

5.1.5 Based on these authorities and the facts in this case, the Complainant

contends that the domain name in issue is both identical and confusingly similar

to its VOICESTREAM mark.

5.2 Rights or Legitimate Interests

The Complainant's case is as follows.

5.2.1 The VOICESTREAM mark was first used in commerce in February 1996, and

both that use and certain of the registered VOICESTREAM trademarks predate registration

on September 29, 2000, of the domain name in issue. No use was made of that

domain name prior to about October 2001, when was linked to the www.investorsuniverse.com

website as explained in paragraph 5.1.1 above. It follows that both before the

date when the domain name was registered [September 2000] and also before the

date that it was first used in relation to the www.investorsuniverse.com website

[c. October 2001], the Respondent had constructive knowledge of the Complainant's

VOICESTREAM mark and business. The extent of the Complainant's business under

and by reference to the VOICESTREAM name and mark in the year 2000 was significant

[see, paragraphs 4.2.2 and 4.3 above] and this further provided actual or at

least further constructive notice to the Respondent by September 2000 when registering

the domain name in issue.

The Complainant cites The Step2 Company v. Softastic.com Corp [WIPO

Case No. D2000-0393] as authority for the proposition that registration

of a US trademark constitutes constructive notice to a Respondent of the registrant's

claim to own such trademark. In that case, the domain name in issue was <step2.com>.

The Complainant held registered trademarks for STEP2 in Canada, Taiwan, Thailand

and the United States, the earliest dating from 1992, for a variety of goods.

The domain name in issue was parked on a domain name auction site. No Response

was filed. In relation to the issue of registration in bad faith, the Panel

referred to 15 USC section 1972 which provides:

"Registration of a mark on the principal register provided by this chapter

or under the Act of March 3, 1881, or the Act of February 20, 1905, shall be

constructive notice of the registrant's claim of ownership thereof."

The Complainant then cites Sunglass Hut Corporation v. AAANet, Inc.

[NAF Case No. FA0003000094370] for the proposition that evidence of widespread

use of a Complainant's trademark carries with it an inference that the Respondent

had actual or at least constructive notice of prior use of the mark and the

Complainant's rights in the mark before the domain name in issue was registered.

In that case, the domain name in issue was <sunglasshot.com> registered

in 1998. The Complainant's SUNGLASS HUT mark was first used in commerce as early

as 1971, it was registered as a US trademark in 1988 and the SUNGLASS HUT name

was known internationally, the Complainant trading under that name in 50 countries

worldwide. The Complainant had its own www.sunglasshut.com website from which

it had sold sunglasses, watches and accessories since 1995. The domain name

in issue resolved to the Respondent's AAAnet.Inc homepage, from which the Respondent

also sold sunglasses, watches and accessories.

The Panel, finding for the Complainant, stated:

"The evidence of widespread use of SUNGLASS HUT worldwide allows the inference

that respondent had actual or at least constructive notice as a competitor of

the prior use of the mark and name."

5.2.2 The Complaint avers that there has been no bona fide offering of goods

or services by the Respondent under the domain name in issue, merely the linking

since about October 2001, to an online financial information site. Further,

the Complainant's case is that [for the reasons set out in paragraph 5.2.1 above],

the Respondent had actual or constructive notice of the Complainant's rights

to and business under the VOICESTREAM mark both at the time of registering the

domain name in issue [September 2000] and subsequently using it [October 2001].

So, the Complainant says, neither the registration nor the subsequent use can

be bona fide for the purpose of paragraph 4(c)(i) of the Policy.

5.2.3 The Respondent has not been commonly known by the domain name <voicestream.org>.

5.2.4 The use latterly made by the Respondent of the domain name in issue [see,

paragraph 5.1.1 above] is for commercial gain under the Affiliate Program of

InvestorsUniverse.com. As demonstrated above, that use is not fair use without

intent to misleadingly divert the Complainant's customers or to tarnish the

VOICESTREAM trademark.

5.2.5 It follows, the Complainant says, that the Respondent cannot satisfy

any of the circumstances set out in paragraph 4(c) of the Policy which demonstrate

rights or interests to the domain name in issue. Any suggestion of rights or

legitimate interests becomes still less plausible when viewed against the Respondent's

bad faith conduct addressed in the following paragraphs.

5.3 Registered and Used in Bad Faith

The Complainant's case is as follows:

5.3.1 Because the Respondent had actual or constructive knowledge before registering

the domain name in issue in September 2000 of the Complainant's prior widespread

use of and reputation in the VOICESTREAM trademark, including registration of

that mark in the United States, registration of the domain name cannot have

been in good faith.

5.3.2 There is evidence of a pattern of conduct by the Respondent registering

another third party trademark in bad faith. Here, the Complainant cites Repsol

YPF, S.A. v. COMn.com [WIPO Case No. D2001-0741].

The Respondent in this case, Hanjin Ko, operates under the COMn.com name: this

is apparent from the Registrar Verification [paragraph 3 above]. Indeed, the

Response in the Repsol case stated that Mr. Hanjin Ko was the owner of

COMn.com.

Repsol was the Spanish national oil company dating from 1986. YPF was a leading

Argentinean oil company. Merger of the 2 entities began in January 1999, and

the merged company now ranks eighth in the world in terms of its oil reserves

and hydrocarbon production. The REPSOL trademark was first registered in Spain

in 1956. The mark YPF was registered in Argentina in 1984. Since the merger

the merged company had applied for registration of the mark REPSOL YPF in many

countries worldwide, including in October 1999, in Korea which matured into

a registration in November 2000. The domain name in issue was registered in

February 2001.

The Respondent asserted that rep was an abbreviation for representative

and that solypf was Korean for pine needle. He claimed to have

made demonstrable preparations to use the domain name <repsolypf.com>

for a website describing the benefits of the use of pine needle extract in drinking

water.

In finding for the Complainant, the Panel stated:

"The Respondent's claim seems just too far-fetched, particularly in the context

of the merger of two very large players in the global energy world and the domain

name just happening to be the same as that of the merged entity. The merger

was well publicised in the international financial press. Respondent has not

satisfied the onus to prove that he comes within one of the limbs of the paragraph

4c of the Policy. There is no documentary evidence offered to back up the litany

of similar assertions made by the Respondent and his associates.

The Panel considers also that there is an available inference that the Respondent

knew of the Complainant's rights at the time of registration of the domain.

The name of the merged entity of two large international oil companies cannot

have escaped the attention of the financial press and markets worldwide, even

although the two companies operated in Spain and Latin America. The combination

of their two unusual names is just too coincidental. The Respondent's explanation

strains credulity. Moreover, at the time of the domain name registration Complainant

had a registered mark in Korea and some commercial presence in that country.

These facts, plus the lack of any real development of the website allow for

an inference of bad faith use."

5.3.3 The gTLD .org suggests a non-profit organisation. Here, however,

the domain name in issue is being used for commercial gain through the Affiliate

Program. On similar facts the Complainant points to cases where it was found

that the Respondent was seeking to gain advertising or other revenue from mis-typed

domain names and this was bad faith conduct justifying transfer of the domain

name in issue to the Complainant. The Complainant cites two cases as illustrative.

Williams-Sonoma Inc v. Polanski [WIPO Case

No. D2001-0236]. There, the domain name in issue was <william-sonoma.com>.

The Complainant retailed cookware and associated products through 200 of its

US WILLIAMS-SONOMA retail outlets and through its mail order catalogue mailed

to some 2.5 million US homes each month. It had US registered trademarks for

WILLIAMS-SONOMA in Classes 16: 24: 25: 30: 31 and 35. It also had the mark registered

in Australia: Hong Kong: Japan: Korea: Singapore: the European Community: and

New Zealand. No Response was filed.

As to use in bad faith, pointing to the various trademark registrations, the

inherent distinctiveness of that mark and its long and extensive use, the Panel

held - quoting from the case Telstra Corporation Limited v. Nuclear Marshmallows

[WIPO Case No. D2000-0003] - it was

"… not possible to conceive of a plausible circumstance in which the Respondent

could legitimately use the domain name."

As to registration in bad faith, the Panel stated:

"It is similarly inconceivable that Respondent chose this domain name, which

is virtually identical to Complainant's inherently distinctive and highly publicised

WILLIAMS-SONOMA mark, without prior knowledge of such mark. This evidences that

Respondent registered WILLIAM-SONOMA.COM in bad faith."

Inter-IKEA v. Polanski [WIPO Case

No. D2000-1614]. This was an earlier case involving the same Respondent.

Here, he had registered <ikeausa.com>. The Complainant has started trading

under the IKEA name and mark in 1950. It had over 1200 trademark registrations

for the IKEA mark in more than 70 countries. The Respondent's domain name originally

resolved to a casino online virtual gambling site. The Panel had no hesitation

in finding that the Respondent could not have been unaware of the Complainant's

activities under the IKEA name and mark. As to use, the Panel held

"It is difficult to imagine any plausible future active use of the domain name

by the Respondent that would not be illegitimate, such as being infringement

of Complainant's well-known mark or an infringement of unfair competition and

consumer protection legislation."

5.3.4 The Complainant asserts that the circumstances of paragraph 4(b)(iv)

are satisfied in this case, namely that by using the domain name in issue the

Respondent has intentionally attempted to attract, for commercial gain through

the Affiliate program, Internet users to the www.investorsuniverse.com website,

by creating a likelihood of confusion with the VOICESTREAM mark as to the source,

sponsorship, affiliation or endorsement of that website.

The Respondent's Case

5.4 Identical or Confusingly Similar

5.4.1 Here, the Respondent's case appears to be a challenge to the rights claimed

by the Complainant in the VOICESTREAM trademark. It is, the Respondent says,

no more than the compound of two words in everyday worldwide use, namely voice

and stream. The Respondent points to other domain names incorporating

the VOICESTREAM mark, namely voicestream with the suffixes .biz;

.co.uk; .tv; .de; .cc; .at; .be; .dk;

.it; and .nl and proposes that if the Complainant can use its

VOICESTREAM trademark to complain about the domain name in issue, the Complainant

should also be attempting to stop use of those other voicestream prefixed

domain names.

5.4.2 Further, the Respondent says that his enquiries show that the VOICESTREAM

mark is also registered by Western Wireless Corporation. But, as clarified by

the Complainant in its communication dated January 23, 2002, the Complainant

was spun-off from Western Wireless Corporation in 1999 [see, paragraph 4.1.2

above]. Indeed, US registered trademark numbers 2.045,084 and 2,060,060 were

registered in the name of Western Wireless Corporation.

5.4.3 The Respondent equates the compound of voice and stream

with other generic words, such as flower and dream which the Respondent

says have also been registered as trademarks by third parties. Such registrations

should not, however, in his view preclude use by anybody of those generic names

as domain names.

5.5 Rights or Legitimate Interests

The Respondent states that prior to being put on notice of this dispute he

had no knowledge of the complainant company. Consequently, he has used the domain

name in issue in connection with a bona fide offering of goods or services through

the InvestorsUniverse.com Affiliates program.

5.6 Registered and Used in Bad Faith

Because he had no prior knowledge of the complainant company before notice

of this dispute, the Respondent says he registered the domain name in good faith

in September 2000. His intention was to

"… construct my small website in near future. I expect I can get a small money

from this my future site."

Interpreting this as best it can, the Panel assumes the Respondent is saying

that because he registered the domain name in issue in good faith and began

using it in good faith in late 2000 in the Affiliate Program of InvestorsUniverse.com

before notice of this dispute, the Complaint fails to satisfy the two requirements

of paragraph 4(a)(iii) of the Policy.

6. Discussion and Findings

6.1 The Policy paragraph 4(a) provides that the Complainant must prove each

of the following:

(i) that the Respondent's domain name is identical or confusingly similar to

a trademark or service mark in which the Complainant has rights; and

(ii) the Respondent has no rights or legitimate interests in respect of the

domain name; and

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

6.2 Paragraph 4(c) of the Policy identifies circumstances which, in particular,

but without limitation, if found by the Panel to be proved based on its evaluation

of all the evidence presented, shall demonstrate the Respondent's rights or

legitimate interests for the purpose of paragraph 4(a)(ii) of the Policy.

6.3 Paragraph 4(b) of the Policy sets out circumstances which, if found by

the Panel to be present, shall be evidence of the registration and use of a

domain name in bad faith.

6.4 Identical or Confusingly Similar

The domain name in issue, save for the .org TLD, is identical to the

Complainant's VOICESTREAM registered trademark. The Complainant, therefore,

satisfies the first limb of paragraph 4(a) of the Policy.

Were it necessary to address confusing similarity - which it is not - the Panel

is persuaded by the case made out by the Complainant.

As to the voicestream domain names with the suffixes .biz; .co.uk;

.tv; .de; .cc; .at; .be; .dk; .it;

and .ml referred to in the Response the Panel has established through

its own searches that <voicestream.biz> and .cc are registered

in the name of the Complainant. Of the others, at least 5 are registered by

persons or companies who do not appear to have any affiliation with the Complainant.

The Policy, however, requires only that the Complainant must establish rights

in the VOICESTREAM trademark and this it has been done to the Panel's satisfaction.

6.5 Rights or Legitimate Interests

6.5.1 The Panel is not convinced by the Respondent's assertion that prior to

notice of this dispute he had no knowledge of the Complainant’s Company. The

Respondent professes to be a "poor and starveling main" so that he cannot

afford to defend himself properly in this administrative proceeding, with the

inference that it is entirely plausible that he would have no prior knowledge

of the Complainant or its VOICESTREAM business. The Complainant has, however,

referred to the Repsol case, where the Respondent was represented by

US attorneys. While the Respondent may have limited financial resources - and

the Panel can only speculate - it is clear that he is not a stranger to proceedings

under the Policy.

6.5.2 Nothing in the Response establishes any of the circumstances in paragraph

4(c) of the Policy as demonstrating rights to or legitimate interests in the

domain name in issue. Specifically, the Panel is satisfied that the Respondent

had constructive notice of the Complainant and its VOICESTREAM business even

if, which the Panel doubts, the Respondent was unaware of the existence of its

registered US trademarks for VOICESTREAM. Thus, in the Panel's view, any use

by the Respondent of the domain name in issue could not have been bona fide

or fair. The Complaint, therefore, satisfies the second limb of paragraph 4(a)

of the Policy.

6.6 Registered and Used in Bad Faith

6.6.1 It follows from the Panel's finding in relation to rights or legitimate

interests, that the Panel also finds that the domain name was registered in

September 2000, in bad faith. This is compounded by the Respondent's conduct

in the Repsol case.

6.6.2 As to use, where - as in this case - the Respondent has no rights or

legitimate interests in the domain name in issue, use in the circumstances set

out in paragraph 5.3.4 above evidences bad faith of the type prescribed in paragraph

4(b)(iv) of the Policy.

6.6.3 The Complaint, therefore, also meets the twin requirements of paragraph

4(a)(iii) of the Policy.

7. Decision

For all the foregoing reasons, the Panel decides that the Complainant has proved

each of the three elements of paragraph 4(a) of the Policy. Accordingly, the

Panel requires that registration of the domain name <voicestream.org>

be transferred to the Complainant.

David Perkins

Presiding Panelist

Dan Hunter

Panelist

Sang-Hyun Song

Panelist

Dated: March 25, 2002

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