Consumption Junction, LLC v. Momm Amed Ia

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Consumption Junction LLC v. Momm Amed Ia

Case No. D2002-0663

1. The Parties

The Complainant is Consumption Junction LLC, a Georgia Limited Liability Company,

having an office at 1099 Hemphill Ave, Ste. B, Atlanta, GA 30318, United States

of America.

The Respondent is Momm Amed Ia with an address at Kwangsan-gu, Myongdo-dong

13-1, Kwangju, 506-011, Republic of Korea.

2. The Domain Name and Registrar

The domain name is <comsumptionjunction.com>.

The Registrar is BulkRegistrar.com, Inc., with an office at 10 East Baltimore

St., Ste. 1500, Baltimore, MD 21202, United States of America.

3. Procedural History

On July 17 and 22, 2002, a Complaint was filed in electronic form and in hard

copy, respectively, by the Complainant with the WIPO Arbitration and Mediation

Center (the "Center").

On July 17, 2002, the Center received from the Registrar, verification of certain

key information, inter alia, that the domain name was registered with it, that

it was registered to the Respondent.

More generally, 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 July 23, 2002, 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 August 12, 2002.

On August 13, 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.

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 September 2, 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 its domain name is identical or confusingly

similar to the tradename or mark "Consumption Junction" in which it

has rights; that the Respondent has no rights to or legitimate interest in the

domain name; and that the domain name is registered and being used in bad faith

by the Respondent. The Complainant requests the transfer of the domain name

to it.

B. 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 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.

I. The Respondent’s domain name is identical or confusingly similar to the

trademark "Consumption Junction" 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) registered the domain name <consumptionjunction.com> on April 12,

1999;

(b) operates its website "www.consumptionjunction.com" that is among

the 100 highest trafficked entertainment websites in the world with five

million unique visitors every month; and

(c) has extensively used its trademark [1]

"Consumption Junction" and, in particular, is using it at its website

(for which it has paying advertisers) and on clothing it sells.

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

"Consumption Junction".

The Panel finds that the spelling of "consumption junction" as "comsumptionjunction"

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

in the marketplace context of the Internet.

Accordingly, the Panel finds that its domain name is confusingly similar to

the "Consumption Junction" trademark in which the Complainant has

rights.

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

name

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, the Panel accepts much

of (but not necessarily all) the evidence and contentions of factual and legal

conclusions set out in the Complaint. In particular, the Panel finds that at

least one of (a), (b) and (c) under I above, was likely well known by the Respondent

when it registered the domain name on July 30, 2000, 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 domain name.

III. Respondent’s domain name has been registered and is 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, its domain name was registered in bad faith because it was done

with knowledge of the Complainant’s significant rights in its "Consumption

Junction" trademark in association with its website. Also in particular,

its 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

website. Upon entering "www.comsumptionjunction.com" into a browser,

the visitor is immediately redirected to a pornographic website, all with a

false association to the Complainant and its trademark "consumption junction".

The Panel finds that the Respondent’s domain name has been registered and is

being used in bad faith.

7. Decision

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

domain name is confusingly similar to Complainant’s trademark "Consumption

Junction" in which it has rights; that the Respondent has no rights or

legitimate interests in respect of the domain name; and that the domain name

has been registered and is being used in bad faith by the Respondent.

The Panel orders that its domain name <comsumptionjunction.com> be transferred

to the Complainant Consumption Junction LLC.

Mark Yang

Sole Panelist

Dated: September 3, 2002

Footnote:

1. The Complaint does not contend for rights

in "Consumption Junction" as a "trademark" or "service

mark". Instead, it describes "Consumption Junction" as a "trade

name" being a designation used to distinguish it from other businesses.

The Panel assumes that the choice of terminology in the Complaint is deliberate

(in avoiding "trademark" and "service mark"). The Panel

is aware that there are technical legal differences between a "trademark"

(in association with services) and a "trade name" in some legal jurisdictions.

The Panel is aware that in some jurisdictions, a "trademark" in association

with services is termed "service mark" whereas in some jurisdictions,

the term "trademark" suffices for association with both goods and

services. The Panel is aware that the Complaint (at paragraph 11A) refers to

"mark" although it is not clear what the significance is, relative

to its uses of "trade name" and "company name", all the

while, avoiding the term "trademark" or "service mark".

All of that said, the Panel concludes from the contentions of facts in the Complaint

that the words "Consumption Junction" are being used by the Complainant

as a trademark in association with the goods of clothing it sells and in association

with the services of providing an electronic platform (i.e. its website) for

paying advertisers, all at common law in the United States of America or in

at least in some states thereof.

The Complaint (on page 5) states, "…it can be demonstrated that the Complainant

has rights or legitimate interests to the domain name since the Complainant

has commonly been known by the domain name, even though no trademark or service

rights have been acquired.". The Panel finds the last part of this statement

("…even though…") to be strange because it is counter to what the

Complainant must prove to succeed in these proceedings. The Panel interprets

this last part, in favor of the Complainant for the following reasons: (a) the

tenor of the Complaint is that the Complainant has developed substantial rights

in the words "Consumption Junction", at least at common law; (b) the

Respondent has not responded to, let alone challenged, any portion of the Complaint

and therefore (for the reasons outlined elsewhere), the Complaint’s fundamental

contention as satisfying the first element of paragraph 4(a) of the Policy,

is accepted in large measure by the Panel; and (c) what was likely meant in

the Complaint was, "…even though no registered trademark or trademark

rights have been obtained by the Complainant.".