KT Freetel Co., Ltd. v. Chang, Young Chul

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

KT Freetel Co., Ltd. v. Young Chul Chang

Case No. D2002-0495

1. The Parties

The Complainant is KT Freetel Co., Ltd., having an office at 890-20, Daechi-dong,

Gangnam-gu, Seoul, Republic of Korea .

The Respondent is Young Chul Chang (a/k/a "fafdasfda")[1],

with a mailing address at 27 Pungsan-dong, Hanam, Gyunggi-do 465-170, Republic

of Korea.

2. The Domain Names and Registrar

The first domain name is <ktfmember.com>.

The second domain name is <018eplaza.com>.

The Registrar is Tucows, Inc., having an office at 96 Mowat Toronto, Ontario,

Canada.

3. Procedural History

On May 28 and 31, 2002 , an original complaint about, inter alia, the two domain

names, was filed in electronic form and in hard copy, respectively, by the Complainant

with the WIPO Arbitration and Mediation Center (the "Center").

On May 30, 2002, the Center received from the registrar identified in the original

complaint, verification of required information about the domain name. The Center

obtained confirmation from the Registrar that the first and second domain names

were registered with it and that they were registered to the Respondent.

As a result of being advised by the Center of what it learned, an amended complaint

about the two domain names (hereinafter, "Complaint"), was filed by

the Complainant with the Center on June 5 and June 11, 2002, in electronic form

and in hard copy, respectively.

The Center obtained confirmation from the Registrar that the first and second

domain names were registered with it and that they were registered to the Respondent.

The Center verified that the Complaint satisfied the formal requirements of

the Uniform Domain Name Dispute Resolution Policy (the "Policy") adopted

by the Internet Corporation for Assigned Names and Numbers ("ICANN"),

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").

On June 13, the Center forwarded the Notification of Complaint and Commencement

of Administrative Proceeding by email and post to Respondent. The due date for

a response was indicated as July 3, 2002.

On July 18, 2002, the Center sent Notification of Respondent Default by email

to Respondent as no response had been received by the due date.

The undersigned Panelist, Mr. Mark Yang, submitted to the Center a Statement

of Acceptance and Declaration of Impartiality and Independence.

On August 5, 2002, the Center transmitted by email to the parties a Notification

of Appointment of Administrative Panel and Projected Decision Date, in which

Mr. Mark Yang was formally appointed as the Sole Panelist and the

projected Decision Date was indicated as August 19, 2002.

The Sole Panelist is satisfied with the Center’s assessment that it verified

the Complaint’s compliance with the relevant requirements of the Rules, Supplemental

Rules and Policy, and that this Administrative Panel (hereinafter, "Panel")

was properly constituted and appointed in accordance therewith.

The Panel has not received any requests regarding further submissions, waivers

or extensions of deadlines, and the Panel has not found it necessary to request

any further information from the parties (taking note of the Respondent’s default

in responding to the Complaint).

Having reviewed the communication records in the case file provided by the

Center, the Panel finds that the Center has discharged its responsibility under

the Rules, paragraph 2(a), "to employ reasonably available means calculated

to achieve actual notice to Respondent". Therefore, the Panel shall issue its

decision based upon the Complaint, the Policy, the Rules and the Supplemental

Rules and without the benefit of the Respondent’s response.

4. Factual Background

In the Complaint (including the Annexes), the Complainant submitted evidence

and contentions of various factual and legal conclusions based on such evidence.

Since the Respondent has not submitted any evidence and has not contested the

contentions made by the Complainant, the Panel is left to render its decision

on the basis of the uncontroverted contentions made, and the evidence supplied,

by the Complainant. The Panel’s position on some contentions is amplified below

(in Discussion and Findings).

In the absence of any evidence to the contrary submitted by the Respondent,

this Panel accepts much of (but not necessarily all) the submitted evidence

and the contended for factual and legal conclusions as proven by such evidence,

as set out in the Complaint. The Panel accepts enough to render its decision

below.

5. Parties’ Contentions

A. The Complainant alleges that the first domain name <ktfmember.com>

is identical or confusingly similar to the trademark and business names "KTF"

and "KTF MEMBERS" in which it has rights; that the Respondent has

no rights to or legitimate interest in the first domain name; and that the first

domain name is registered and being used in bad faith by the Respondent. The

Complainant requests the transfer to it of the first domain name.

B. The Complainant alleges that the second domain name <018eplaza.com>

is identical or confusingly similar to the trademark "018 e-plaza"

in which it has rights, that the Respondent has no rights to or legitimate interest

in the second domain name, and that the second domain name is registered and

being used in bad faith by the Respondent. The Complainant requests the transfer

to it of the second domain name.

C. The Respondent has not filed a response to the Complaint, and is in default.

6. Discussion and Findings

One requirement of fundamental due process is that a Respondent has notice

of proceedings that may substantially affect its rights. The Policy, Rules and

Supplemental Rules establish procedures intended to assure that a Respondent

is given adequate notice of proceedings commenced against it, and a reasonable

opportunity to respond (see, e.g., Rules, paragraph 2(a)).

In this case, the Panel is satisfied that the Center took all steps reasonably

necessary to notify the Respondent of the filing of the Complaint and initiation

of these proceedings, and that the failure of the Respondent to furnish a response

to the Complaint is not due to any omission by the Center. There is sufficient

evidence, in the case file provided by the Center, for the Panel to conclude

the Center discharged its obligations under Rules, paragraph 2(a) (see

Procedural History, supra).

Where there is default, then under Rule 14(a), "the Panel shall proceed

to a decision on the complaint", and under the Rule 14(b), "the Panel

shall draw such inferences [from the default] as it considers appropriate".

Furthermore, Rule 15(a) provides that a "Panel shall decide a complaint

on the basis of the statements and documents submitted and in accordance with

the Policy, these Rules and any rules and principles of law that it deems appropriate".

Since the Respondent has not submitted any material and has not contested the

contentions made by the Complainant, the Panel is left to render its decision

on the basis of the uncontroverted contentions made, and the evidence supplied,

by the Complainant.

As for Complainant’s contentions 5A and 5B above, paragraph 4(a) of the Policy

sets forth three elements to be established by a Complainant to merit a finding

that a Respondent has engaged in abusive domain name registration, and to obtain

relief. Each of the following three elements must be established by a Complainant:

(I) Respondent’s domain name is identical or confusingly similar to a trademark

or service mark in which the Complainant has rights; and

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

name; and

(III) Respondent’s domain name has been registered and is being used in bad

faith.

Ia. The Respondent’s first domain name is identical or confusingly similar

to the trademarks "KTF" and "KTF MEMBERS" in which the Complainant

has rights

Based on the uncontroverted evidence submitted by the Complainant and the facts

and conclusions contended for, the Panel finds that the Complainant:

(a) holds registration no. 0062193 for the trademark "KTF" at the

Korean Intellectual Property Office, issued on June 26, 2000 in association

with the various communications and other services identified therein (hereinafter,

"Communications Business"), and holds several pending applications

for "KTF MEMBERS", filed on April 2, 2001 in association with various

goods and services (hereinafter, also considered as part of "Communications

Business");

(b) has extensively used its trademarks "KTF" and "KTF MEMBERS"

in association with its Communications Business in Korea, and in particular,

it is using it at its "www.ktf.members.com" website; and

(c) being the largest telecommunication company in Korea, it and its Communications

Business commercialized with the trademarks "KTF" and "KTF MEMBERS",

are well known in Korea.

The Panel finds that the Complainant has significant rights in its trademarks

"KTF" and "KTF MEMBERS" in Korea.

The Panel finds that the spelling of "KTF MEMBERS" as "ktfmember"

is of insufficient legal significance to distinguish the latter from the former

in the marketplace context of the Internet. Furthermore, the Panel finds that

"kftmember" suggests an association with "KTF" Communications

Business, as being related to a customer’s membership entitlement to KTF Communications

Business.

Accordingly, the Panel finds that the first domain name is confusingly similar

to the "KTF" and "KTF MEMBERS" trademarks in which the Complainant

has rights.

Ib. The Respondent’s second domain name is identical or confusingly similar

to the trademark "018 E-Plaza", in which the Complainant has rights

Based on the uncontroverted evidence submitted by the Complainant and the facts

and conclusions contended for (see Factual Background, above), the Panel finds

that the Complainant (as successor-in-title of a corporate merger with a Korean

telecommunication company, Hansol PCS, on May 3, 2001):

(a) holds many registrations for trademarks having the digits "018"

at the Korean Intellectual Property Office, in association with the various

Communications Business (also collectively identified as "Communications

Business" herein)[2];

(b) has extensively used its trademark "018 E-Plaza" in association

with its Communications Business in Korea , and in particular, used it at its

"www.018e-plaza.com" Website, which automatically the visitor to its

aforementioned website, "ww.ktfmembers.com"; and

(c) being the largest telecommunication company in Korea, it and its Communications

Business commercialized with the trademark "018 E-Plaza" are well-known

in Korea.

The Panel finds that the Complainant has significant rights in Korea in its

trademark "018 E-Plaza".

The Panel finds that the spelling of trademark "018 E-Plaza" as "018eplaza"

is of insufficient legal significance to distinguish the latter from the former

in the marketplace context of the Internet.

Accordingly, the Panel finds that the second domain name is confusingly similar

to the "018Eplaza" trademark in which the Complainant has rights.

II. Respondent has no rights or legitimate interests in respect of the first

and second domain names

Respondent has submitted no evidence, generally, and none under paragraph 4(c)

of the Policy in particular, to support a finding of it having any rights or

legitimate interests in respect of the domain name. This is sufficient for the

Panel to accept the Complainant’s contentions.

Furthermore, based on the uncontroverted evidence submitted by the Complainant

and the factual and legal conclusions contended for (see Factual Background,

above), the Panel accepts much of (but not necessarily all) the evidence and

contentions of factual and legal and conclusions set out in the Complaint. In

particular, the Panel finds that at (a), (b) and (c) under Ia and Ib above,

were likely very well known by the Respondent when it registered the first and

second domain names (respectively on June 2, 2001, and June 8, 2001),

and that makes it very difficult, even if it had submitted evidence, for it

to show it had rights or legitimate interests therein.

Accordingly, the Panel finds that the Respondent has no rights or legitimate

interests in respect of the first and second domain names.

III. Respondent’s first and second domain names have been registered and are

being used in bad faith

Based on the uncontroverted evidence submitted by the Complainant and the factual

and legal conclusions contended for, the Panel accepts in large measure much

of (but not necessarily all) the evidence and contentions set out in the Complaint.

In particular, the first domain name was registered in bad faith because it

was done with knowledge of the Complainant’s significant rights in its "KTF"

and "KTF MEMBERS" trademarks in association with Communications Business.

Also in particular, the first domain name is being used in bad faith because,

amongst other reasons, the use is to divert Internet traffic away from the Complainant’s

website to a pornographic site. Upon entering "www.ktfmember.com"

into a browser, the visitor is immediately redirected to a pornographic website,

all with a false association to the Complainant and its trademarks KTF and KTF

MEMBERS.

In particular, the second domain name was registered in bad faith because it

was done with knowledge of the significant rights in the "018 e-plaza"

trademark of the Complainant (or its predecessor, Hansol PCS) in association

with Communications Business. Also in particular, the domain name was being

used in bad faith because, amongst other reasons, the use was to divert Internet

traffic away from the Complainant’s website to a pornographic one. Upon entering

"www.018eplaza.com" into a browser, the visitor was immediately redirected

to a pornographic site, all with a false association to the Complainant and

its trademark " 018 e-plaza". It appears that that when the Complainant

discontinued its "www.018eplaza.com" website (to save its customers

from being automatically exposed to pornographic material), the Respondent discontinued

use of its "www.018e-plaza.com" website. This shows the parasitic

nature of the Respondent’s modus operandi and its likely intentions if the Complainant

were to re-start its "www.018eplaza.com" website. Finally, even if

Respondent is not currently using the second domain name to host active web

pages, its actions still would constitute registration and use in bad faith.

Respondent must have expected that any use of the second domain name would cause

harm to Complainant because it contains marks that are so "obviously indicative"

of Complainant’s services that Respondent’s use of it would "inevitably

lead to confusion of some sort." AT&T v. Fred Rice, WIPO Case

No. D2000-1276 at para. 6 (November 25, 2000) ("Nobody

registers domain names for no purpose. . . . [T]he Respondent either registered

them in order to sell them to the Complainant hoping that the Complainant would

offer a large sum of money for them or he registered them in order to use them

to connect to an internet facility"); see also eBay Inc. v. Sunho Hong,

WIPO Case No. D2000-1633 at para. 6 ("use of complainant’s entire mark

in infringing domain names makes it difficult to infer a legitimate use").

The Panel finds that the Respondent’s first and second domain names have been

registered and are being used in bad faith.

7. Decision

The Panel finds, within the meaning of paragraph 4(a) of the Policy, that the

domain name <ktfmember.com> is confusingly similar to Complainant’s trademarks

"KTF" and "KTF MEMBERS" in which it has rights; that the

Respondent has no rights or legitimate interests in respect of the first domain

name; and that the first domain name has been registered and is being used in

bad faith by the Respondent.

The Panel finds, within the meaning of paragraph 4(a) of the Policy, that the

second domain name <018eplaza.com> is confusingly similar to Complainant’s

trademark "018 e-plaza" in which it has rights; that the Respondent

has no rights or legitimate interests in respect of the second domain name;

and that the second domain name has been registered and is being used in bad

faith by the Respondent.

The Panel orders that the first domain name <ktfmember.com> and the second

domain name <018eplaza.com> be transferred to the Complainant KT Freetel

Co., Ltd.

Mark Yang

Sole Panelist

Dated: August 19, 2002

1. The Complaint indicates that the domain

name <018eplaza.com> is registered to a Korean individual by the name of "fafdasfda"

and that the domain name is registered to a Korean individual

called "Young Chul Chang" and implicitly asks the Panel to decide that both

are one and the same individual. The Complaint offers no argument to support

that the two individuals are the same, except to identify the sole Respondent,

at the beginning of the Complaint, as Young Chul Chang as "a/k/a fafdasfda".

Although a more explicit statement with supporting argument, indicating that

the two Korean individuals are one and the same or that the two complaints about

the two domain names are justifiably combined in one Complaint because of the

underlying, common facts, could have been helpfully made in the Complaint, the

Panel is willing to accept that that the two individuals are the same, in view

of: (a) the uncontroverted status of the Complainant's case (see below under

"6. Discussion and Findings"), (b) the (to the Panel) apparently fictitious

and almost evasive nature of the name "fafdasfda", (c) the fact that the Respondent

Young Chul Chang and owner of the first domain name, and his address, are identical

to the technical, administrative and billing contact and address, for the second

domain name, and (d) the apparent connection between the subject domain names,

trademarks and their respective businesses, including the corporate history

of the Complainant that was the result of a merger with the company that registered

<018e-plaza.com>, explained below, and set out in the uncontroverted case of

the Complaint.

2. The significance of the digits "018" is

explained in the Complaint as follows. In Korea, the first three digits of the

mobile phone numbers represent particular mobile phone services, and there are

five different mobile phone services, respectively having following first three

digits: 011, 016, 017, 018, and 019. Of these five mobile phone services, Complainant

exclusively offers two mobile telephone services having the digits 016 and 018.

The 018 mobile communication service was acquired through a merger with Hansol

PCS. Before the merger, Hansol PCS provided customer services with the trademark

"018 E-Plaza" and acquired the domain name <018e-plaza.com> to establish a website

for customers using 018 mobile telecommunication. After the merger, the surviving

company, the Complainant, continued to provide 018 mobile telecommunication

service to the former customers of Hansol PCS. However, Complainant arranged

so this service would be included in the above-mentioned KTF Members service.

In this regard, KTF arranged the website, "www.018e-plaza.com," to automatically

forward all visitors of its website to "www.ktfmembers.com" to make sure that

former customers of Hansol PCS who were accustomed to the name of "018 E-plaza"

and to logging in through the domain name of <018e-plaza.com>, could easily

be connected to the new KTF Members service as "www.ktf.com". Also, Annex 15

was stated in the Complaint to be a copy of the registration to Hansol PSC of

the domain name <018e-plaza.com> but the Panel found in Annex 15 the registration

of <018e-plaza.co.kr>. Because of the uncontroverted statements in the Complaint

about the "www.018e-plaza.com" website of the Complainant, the Panel will assume

the veracity of those statements and disregard what appears to be a clerical

error in the assembly of the Complaint.