NHN Corporation v. NHN Corp.

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL

DECISION

NHN Corporation v. NHN Corp., National Health Network

Case No. D2003-0939

1. The Parties

The Complainant is NHN Corporation, Kangnam-Gu, Seoul, Republic of Korea ("the Complainant"), represented by Horizon Law Group, Republic of Korea.

The Respondent is NHN Corp., National Health Network, Little Ferry, New Jersey, United States of America ("the Respondent"), represented by ESQwire.com Law Firm, United States of America.

2. The Domain Name and Registrar

The disputed domain name <nhn.com> ("the Domain Name") is registered with R&K Global Business Services, Inc. d/b/a 000Domains.com ("the Registrar").

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center")

on November 26, 2003. On November 26, 2003, the Center transmitted

by email to the Registrar a request for registrar verification in connection

with the Domain Name. On November 27, 2003, 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 administrative,

billing, and technical contact. In response to a notification by the Center

that the Complaint was administratively deficient, the Complainant filed an

amendment to the Complaint on December 1, 2003. The Center verified

that the Complaint together with the amendment to the Complaint satisfied the

formal requirements of the Uniform Domain Name Dispute Resolution Policy (the

"Policy"), 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, and the proceedings commenced December 1, 2003.

In accordance with the Rules, paragraph 5(a), the due date for Response

December 21, 2003. The Response was filed with the Center December 22, 2003.

The Center appointed Tony Willoughby, Sang Jo Jong and Sally M. Abel

as panelists in this matter on January 30, 2004. The Panel finds that

it was properly constituted. Each member of 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.

On January 30, 2004, the Complainant filed with the Center a further

submission relating to the website to which the Domain Name is connected. The

Panel took the view that post-complaint developments relating to the website

were unlikely to add materially to the evidence before the Panel and declined

to consider the submission.

On February 16, 2004, the Panel issued a Procedural Order in the

following terms:-

"This request is made pursuant to Rule 12 which reads "In addition

to the Complaint and the Response, the Panel may request, in its sole discretion,

further statements or documents from either of the parties."

The members of the Panel have now read the papers in the case and would find

it helpful to have the following further information:

From the Complainant

• English translations of the Korean language emails exhibited to the

Complaint.

From the Respondent

• Such further information and contemporaneous documentation as the Respondent

can provide in relation to (a) its plans to use the name National Health Network

prior to acquisition of the Domain Name; and (b) the date on which it acquired

the Domain Name and the price it paid for the Domain Name;

The Panel stresses that this is a request, not a direction, and in making this

request of the Respondent, the Panel is, of course, aware that it is the Complainant

which is required to prove its case on all three elements of paragraph 4(a)

of the Policy. Nonetheless paragraph 4(c) of the Policy indicates how Respondents

may demonstrate their rights to and legitimate interests in domain names. Assertions

supported by documentation are always preferable to bare assertions, even when

on oath.

• Such further information and contemporaneous documentation as the Respondent

can provide as to the extent of Mr. William Nah’s participation/proposed

participation in the business of the Respondent.

The Panel invites responses to this Procedural Order by 5.00 p.m. Geneva time

on Wednesday February 18, 2004."

The Complainant responded on February 17, 2004, providing the requested

translations which are set out in the section headed "Factual Background"

below.

On February 18, 2004, the Respondent provided a response verified

by declarations from William Nah and Hyojun Kim which will be dealt with below.

4. Factual Background

The Complainant is NHN Corporation, a corporation incorporated in Korea with

its principal office located in Seoul, Korea. It was originally established

as Navercom in June 1999 as an Internet portal service provider. Following

a series of acquisitions, the scope of its activities expanded to a substantial

degree and it was re-established as NHN Corporation in 2001. The Complainant

has filed sufficient evidence to demonstrate that by 2002 the Claimant’s name

was well known in Korea as a web portal.

The Complainant is the proprietor of a series of Korean trademark registrations,

the essential element of which is the letter combination "NHN" in

script form and in plain type. All these registrations pre-date the registration

of the Domain Name.

On or about June 3, 2003, an American company, HBX, Inc. ("HBX")

acquired the Domain Name from Buydomains.com, a domain name dealer, for a price

of US$20,000. The President of HBX is William Nah. HBX is also a dealer in domain

names, trading as DomainShop.

On August 31, 2003, the Complainant first contacted HBX with a view

to negotiating the transfer of the Domain Name. The ensuing correspondence which

was conducted by the Complainant in Korean and by HBX in English was as follows:

"From: Jin Kyu Park

To: Domain Shop

Sent: Sunday, August 31, 2003, 10:38 PM

Subject: Domain-related Inquiry

Hello!

I would like to inquire about your domain <nhn.com>.

To the best of my knowledge, your domain on now sale….

How much is the sales price?

Is it negotiable? I look forward to hearing from you.

Thank you.

Jin Kyu Park

Subject: Domain name <nhn.com>

Date: Sun, 31 Aug 2003 23:07:45 -0400

Sent: "Domain Shop"

To: Jin Kyu Park

Hello,

Thank you for your inquiry regarding the domain name "http://nhn.com."

DomainShop.com, Inc. is an industry leader in Top Level Domain collecting and

sales.

Also, for a successful business on the Internet, .com domain names are very

important, because during a typical Internet search, the average person will

habitually look for .com domains.

Please make a reasonable offer, if it is reasonable, we’ll consider and let

you know.

We look forward to hearing from you.

Best regards,

DomainShop.com, Inc.

From: Jin Kyu Park

To: Domain Shop

Sent: Monday, September 01, 2003 8:14 AM

Subject: [Re] Domain name nhn.com

Yes I duly received your e-mail.

Then, how can I make a reasonable offer? Is there any particular offer format?

If so, I will try to make an offer according to that format.

Thank you.

Subject: Domain name nhn.com

Date: Mon, 1 Sep 2003 09:16:56 -0400

Sent: "Domain Shop"

To: Jin Kyu Park

Hello,

Thank you for your prompt response.

It is very easy, you can simply give us the price for the domain transaction

for <nhn.com>, or otherwise, please visit our website http://domainshop.com

and click "Make an Offer" and fill out and submit, that’s all you

have to do.

If you have any other questions, please contact us.

Best regards,

William

[The Complainant then made an offer of $50,000 for the Domain Name.]

Sent: "Domain Shop"

To : <jukumi75….>

Date: 2003-09-04 21:49

Subject : Domain Transaction for <nhn.com>

Hello,

Thank you for your offer regarding the domain name "http://nhn.com."

DomainShop.com, Inc. is an industry leader in Top Level Domain collecting and

sales.

We’ve been in business since 1998.

Also, for a successful business on the Internet, .com domain names are

very important, because during a typical Internet search, the average person

will habitually look for .com domains.

We are very sorry to tell you because we are not satisfied your offer $50,000

for this domain transaction.

We believe the value of this domain which is much higher than your

offer.

So, we hope that if you are seriously interested, you’ll make a reasonable offer.

If you agree with our price, you can open a buyer account and initiate the

domain transaction at "http://escrow.com."

They accept credit cards and other payment methods.

Please note that the Escrow Fees are paid by buyer.

If you have any other questions, please contact us.

Best regards,

William Nah

VP

DomainShop.com, Inc.

From: Jin Kyu Park

To: Domain Shop

Sent: Sunday, September 07, 2003 10:56 AM

Subject: RE: Domain Transaction for <nhn.com>

Hi!

Thank you for your e-mail.

I know how high would be the degree of demand for 3-digit domain names.

I also guess that you would expect a reasonable price as a party who is doing

a domain-related business.

It seems that $50,000 would meet your need.

What would be the level of your expectation?

If you let me know your expected level, I will contemplate if I can afford to

pay it, and if it is a reasonable price.

Does it make sense to you?

I will appreciate if you give me some information on <nhn.com> as well.

Have a nice day, today…^^

Sent: "Domain Shop"

To : "" <jukumi75…>

Date: 2003-09-08 23:46

Subject : Domain Trasaction for <nhn.com>

Hello,

Thank you for your response.

Actually, we were offered many times for this domain from USA, UK, Japan

and Korea, the highest offer which was over $250,000, however we haven’t

sold because we weren’t satisfied.

If you are seriouly interested in buying this domain name, we hope that you’ll

make a reasonable re-offer.

We look forward to hearing from you.

Best regards,

William

Sent : "Domain Shop"

To : <jukumi75…>

Date: 2003-10-13 22:39

Subject : Domain Trasaction for <nhn.com>

Hello,

I haven’t heard any news from you regarding the domain transaction of "http://nhn.com."

I’d like to know you are still interested, if you are still interested, please

make a reasonable offer.

If your offer is reasonable, I and my partners, we’ll consider.

I look forward to hearing from you.

Best regards,

William Nah

From: Jin Kyu Park

To: Domain Shop

Sent: Tuesday, October 14, 2003 7:54 AM

Subject: RE: Domain Transaction for <nhn.com>

Thank you for your e-mail.

Though I am much interested in <nhn.com>, its value seems to be much higher

than I think.

I initially contemplated about $1,000~20,000, but heightened the maximal betting

level to $50,000.

However, $250,000 is beyond the scope of my capability.

I guess you would receive many offers from many countries.

If you fail to find a new owner of <nhn.com> nevertheless, please contact

me again.

Thank you.

Sent: "Domain Shop"

To: <jukumi75…>

Date: 2003-10-15 01:05

Subject: Domain Trasaction for <nhn.com>

Hello,

Thank you for your kind reply.

However, I’d like to know how much you would like to pay or maximum budget for

the domain transaction of "http://nhn.com."

If it is reasonable, we’ll consider.

Although, we won’t sell $50,000 for this domain.

And we have many information regarding nhn in korea too, so we’ll wait or sell,

we are considering.

I look forward to hearing from you.

Best regards,

William

From: Jin Kyu Park

To: Domain Shop

Sent: Thursday, October 16, 2003 2:23 AM

Subject: RE: Domain Transaction for <nhn.com>

Yes, I am well aware of the Domain Shop as well as of the domestic fame of

<nhn.com>. Regretfully, however, I am unable to pay more than $50,000

due to deficit of my budget.

Sorry, but we seem to have no affinity with each other.

If any further negotiation becomes available, please let me know.

Thank you.

Sent: "Domain Shop"

To: <jukumi75…>

Date : 2003-10-18 23:35

Subject: Domain Trasaction for <nhn.com>

Hello,

Thank you for your kind reply.

As you know, the past is the past, so we don’t regret.

By the way, if you’ll pay $150,000, I’ll discuss with my partners and consider.

If you are still interested, do not hesitate, please contact me.

Also, if you’ll let me know your phone No., I can contact with you over the

phone.

Best regards,

William Nah

From: Jin Kyu Park

To: Domain Shop

Sent: Monday, October 27, 2003 8:15 PM

Subject: Domain trasaction for <nhn.com>

My name is Jin Kyu Park, a domain administrator of NHN Corp. in Korea.

I would like to mention about the domain <nhn.com> owned by your company.

Your <nhn.com> domain coincides with our trade name "NHN Corp,"

which has been in use since September 2001. Your domain name also coincides

with the trademarks and service marks registered in many countries including

Korea.

Thus, we believe that we deserve a legal right under the Uniform Domain Name

Dispute Resolution Policy (UDRP) with respect to your <nhn.com> domain

name. With that belief, we are now considering to proceed with legal actions

under the UDRP.

For mutually amicable and prompt settlement of this matter, we are willing to

purchase your <nhn.com> domain at an amount of $5,000 including an expected

VAT added to the direct cost of $1,500 to be incurred for the proceeding under

the UDRP.

Please take the above into your consideration. We hope to see a "win-win"

result.

Your earliest possible reply, preferably before the end of October, will be

much appreciated.

Thank you.

From: Domain Shop

To: Jin Kyu Park;

Date: 2003.10.28 10:36

Subject: Domain trasaction for nhn.com

Hello,

I am so sorry to hear that and we’ve been in the domain selling business

since 1998.

We do not know whether you have registered the trademark for nhn in

your country or not.

However, you have to know we haven’t made any conjunction or confusion for your

business with this domain.

Also, you have to know that if you registered with nhn for the trademark in

your country and if you’ll win WIPO of ICANN for the dispute case, We can

go and appeal at my local court, which is in New York, USA.

Well, I personally am not happy to hear that too and we’ll never reply.

Although, if you are seriously interested in buying this domain, please contact

us.

Best regards,

William Nah<> Marketing Manager

DomainShop.com, (HBX Inc.).

From: Jin Kyu Park

To: Domain Shop

Sent: Wednesday, October 29, 2003 9:04 PM

Subject: [Re] Domain trasaction for <nhn.com>

Hello! I am an administrator of "NHN" domain.

We duly received your e-mail, and we have discussed the matter with our related

staff.

We wish to make a final offer to your company.

Our offer is $10,000, and this is our final offer as mentioned above.

This is for mutually amicable settlement. No higher price has been excluded

from our consideration.

If you do not agree to our proposal, we will proceed with legal remedies in

accordance with UDRP.

We hope to see a "win-win" result.

Thank you.

From: Domain Shop

To: Jin Kyu Park;

Date: 2003.11.02 02:36

Subject: Domain trasaction for <nhn.com>

Hello,

I know who you are, and you offered $50,000 with possible negotiations for

this domain transaction several weeks ago.

We purchased this domain at a much higher price than your offer from "http://buydomains.com"

so we can’t sell.

I’m personally so sorry to tell you that we sold this domain recently and

we’re transfering the ownership now.

As you know, the domain selling business is on a first come first serve

basis, therefore we have just a couple days.

If you are still seriously interested in buying this domain, please make a reasonable

offer.

If your offer is reasonable, we’ll consider it.

If you have any other questions, do not hesitate, please contact us.

Best regards,

William"

On November 7, 2003, the Respondent was incorporated in New Jersey.

The President of the Respondent is Hyojun Kim. The certificate of incorporation

does not specify the purpose for which the Respondent was incorporated.

On November 11, 2003, HBX transferred the Domain Name to the Respondent.

On November 19, 2003, following the transfer of the Domain Name to

the Respondent, the Complainant (in the name of an employee) had a further exchange

of emails with a view to acquiring the Domain Name. That exchange reads as follows:

"Dear NHN Corp,

I become to know you are the owner of <nhn.com> domain name. I am trying

to set an organization titled "Network of Human Network." Can you

sell your domain name if I pay some money?

Regards,

Network of Human Network"

Hello Human Network,

We have a project for the health field, that’s why we paid big money and we

purchased this domain couple weeks ago.

However, if you’ll pay more than we paid, we’ll consider it.

Best regards,

National Health Network."

5. Parties’ Contentions

A. Complainant

The Complainant contends that the Domain Name is identical or confusingly similar

to its registered trademarks featuring the letters NHN.

The Complainant further contends that HBX has no rights or legitimate interests

in respect of the Domain Name. The substance of the Complaint is that while

the Complainant was prepared to pay a substantial sum of money for the Domain

Name, as soon as HBX’s demands became extortionate, the Complainant threatened

proceedings under the Policy and HBX realizing that it was vulnerable to a Complaint

under the Policy, perpetrated an act of "cyber flying." In other words,

it transferred the Domain Name to an alter ego, set up for the purpose

and designed to defeat any subsequent complaint under the Policy. The Complainant

asserts that an act of cyber flight of this kind cannot form the basis of any

genuine bona fide use claim of the kind described in paragraph 4(c) of

the Policy.

While the Respondent’s corporate name is the same as the Domain Name, there

is no indication that the Respondent had any bona fide intentions in relation

to the Domain Name. The setting up of the Respondent under a name identical

to the Domain Name was a deliberate ploy to seek to justify registration of

the Domain Name in the hands of the Respondent and thereby to defeat the threatened

challenge under the Policy.

The Complainant contends that the Domain Name was acquired by the Respondent

and is being used by the Respondent in bad faith. The Complainant relies upon

the sequence of events leading up to the transfer of the Domain Name from HBX

to the Respondent and relies also upon the manner in which the Domain Name has

been used since the transfer. At the time of the Complaint, it resolved to a

homepage located at "www.hbxmall.com," a site owned and operated by

HBX, and, at the same time, continued to be offered for sale as a premium name

at "www.domainshop.com," another HBX website. This continued for a

further month after the transfer of the Domain Name to the Respondent. The Complainant

notes that following the transfer the Respondent was still willing to accept

offers for the Domain Name.

Finally, the Complainant contends that the Respondent registered the Domain

Name in bad faith and is using it in bad faith. The Complainant refers to the

matters set out above and contends that the Respondent acquired the Domain Name

either for the purposes of selling the Domain Name to the Complainant for an

extortionate sum of money or the Respondent acquired it to disrupt the business

of the Complainant or the Respondent acquired the Domain Name with a view to

attracting Internet users to its website for commercial gain by creating a likelihood

of confusion with the Complainant’s marks in the manner described in paragraph 4(b)(iv)

of the Policy.

B. Respondent

The Respondent does not dispute that the Domain Name is identical or confusingly

similar to the Complainant’s trademark.

The Respondent contends that it has rights and a legitimate interest in respect

of the Domain Name. It claims to have acquired the Domain Name for the purpose

of using it for the benefit of its planned business under the name of NHN Inc.,

which is its corporate name and an acronym for National Health Network, a health

related online business planned by the Respondent.

The Respondent denies that it acquired the Domain Name in bad faith and is

using it in bad faith. The Respondent points to the examples of bad faith registration

and use set out in paragraph 4(b) of the Policy and observes that there is no

evidence before the Panel to support any of the Complainant’s allegations of

bad faith in this regard.

The Respondent observes that HBX purchased the Domain Name lawfully for a substantial

sum of money ($20,000), a not unreasonable sum for a three letter domain name.

The Complainant clearly appreciated that the three letter domain name was worthy

of a substantial sum of money because the Complainant volunteered a substantial

sum in its opening offer. The Respondent contends that if the Complainant really

thought that HBX’s acquisition of the Domain Name was a bad faith acquisition,

it would never have made an offer to purchase at a price of $50,000.

The Respondent appended to the Response sworn statements from Mr. Nah

and Mr. Kim in which they admit that they have had a longstanding business

acquaintanceship and that Mr. Nah has a shareholding in the Respondent.

However, Mr. Kim denies that the acquisition of the Domain Name or the

naming of the Respondent had anything whatever to do with the Complainant or

the Complainant’s trademark. Both Mr. Kim and Mr. Nah deny that they

were aware of the Complainant’s trademark at the time of acquisition of the

Domain Name by HBX and transfer of the Domain Name by HBX to the Respondent.

Accordingly, the Respondent contends that since it had no knowledge of the

Complainant’s trademark at the relevant time, its acquisition of the Domain

Name could not have been a bad faith acquisition. The Respondent points out

that the Complainant has no registered rights in the United States and that

therefore there was no reason why the Respondent should have been aware of the

Complainant’s trademark rights when acquiring the Domain Name.

In response to the Procedural Order, the Respondent produces further declarations

from Mr. Nah and Mr. Kim verifying that Messrs Nah and Kim have

since 2001 had plans to develop an online health related business and to that

end had acquired a large number of health related domain names. Mr. Nah

says that he purchased the Domain Name "because it had the letters HN,

which could stand for Health Network and thought that National Health Network

was a great name for Mr. Kim and the business plan." He transferred

the Domain Name to the Respondent in exchange for a 20% equity interest in the

Respondent.

Mr. Nah says that he would have been prepared to sell the Domain Name

to the Complainant if the Complainant had been willing to pay a substantial

amount to cover HBX’s investment in the Domain Name and to provide funding for

the business as well as money to purchase a replacement domain name. The Complainant

did not appear to be ready to do so, so he transferred the Domain Name to the

Respondent for the purpose for which it had originally been acquired.

Mr. Kim’s further declaration confirms much of what is said in Mr. Nah’s

declaration. The final paragraph of his declaration reads "I am a programmer

and came up with the idea for the business. I have a 75% interest in NHN Corporation.

Mr. Nah is responsible for supply of the products sold. Mr. Jongho

Choi, a web designer, joined the partnership in June 2003 and has been

designing the web since that date."

6. Discussion and Findings

According to paragraph 4(a) of the Policy, the Complainant must prove that

(i) The 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 interest in respect of the

Domain Name; and

(iii) The Domain Name has been registered in bad faith and is being used in

bad faith.

A. Identical or Confusingly Similar

It is not in dispute that the Domain Name is identical or confusingly similar

to a trademark in which the Complainant has rights and the Panel so finds.

B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy indicates what respondents can do to demonstrate

that they have rights or legitimate interests in respect of the domain name

within the meaning of paragraph 4(a)(ii) of the Policy.

Paragraph 4(c) of the Policy reads as follows:

"c. How to Demonstrate Your Rights to and Legitimate Interests in the

Domain Name in Responding to a Complaint. When you receive a complaint, you

should refer to Paragraph 5 of the Rules of Procedure in determining how your

response should be prepared. Any of the following circumstances, in particular

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

of all evidence presented, shall demonstrate your rights or legitimate interests

to the domain name for purposes of Paragraph 4(a)(ii):

(i) before any notice to you of the dispute, your use of, or demonstrable preparations

to use, the domain name or a name corresponding to the domain name in connection

with a bona fide offering of goods or services; or

(ii) you (as an individual, business, or other organization) have been commonly

known by the domain name, even if you have acquired no trademark or service

mark rights; or

(iii) you are making a legitimate non-commercial or fair use of the domain

name, without intent for commercial gain to misleadingly divert consumers or

to tarnish the trademark or service mark at issue."

On the Respondent’s story it may well have rights or legitimate interests in

respect of the Domain Name. The Respondent’s story is as follows: In June 2003,

prior to its formation, its prime mover, Mr. Kim, and his partners, Mr. Nah

and the web designer, Jongho Choi, formed plans to develop an online health

related business under the name NHN, NHN being an acronym for National Health

Network which was to be the trading name of the business. At all material times

they were unaware of the existence of the Complainant and its trademark. On

November 7, 2003, in good faith, the Respondent was incorporated in

New Jersey and on November 11, 2003, in good faith, the Respondent

acquired the Domain Name, again unaware of the existence of the Complainant’s

trademark. That is the Respondent’s story. On that story, and whether or not

the Respondent’s plans were sufficiently developed to give the Respondent rights

or legitimate interests in respect of the Domain Name, clearly it was a good

faith enterprise and the Complaint would have to fail.

Another way of looking at it, the Complainant’s way of looking at it, is that

there was no good faith in the Respondent’s enterprise. Mr. Nah, the President

of HBX, and Mr. Kim, the President of the Respondent, have known each other

for a long time and work closely together. They are both of Korean origin, both

understand the Korean language and certainly Mr.. Nah and/or his business

is the proprietor of Korean-specific domain names such as <slimkorea.com>

and <germaniumkorea.com>. At one time the Domain Name was linked to Yahoo

Korea. At the time HBX acquired the Domain Name (June 2003) the Complainant

was a very well known organisation in Korea and known by its corporate name

and trademark NHN. Having regard to the fame in Korea of the Complainant at

that time, the strong Korean connections of Mr. Nah and Mr. Kim and

their particular interest in Internet related business, it is inconceivable

that at all material times the Respondent was not well aware of the Complainant

and its trademark. Indeed, in his email message of October 15, 2003,

Mr. Nah expressly admits to knowledge of the Complainant in Korea ("and

we have many information regarding NHN in Korea too, so we’ll wait or sell,

we are considering.")

From the Complainant’s perspective, the combination of:

(i) the email exchanges;

(ii) the circumstances of the setting up of the Respondent;

(iii) the transfer of the Domain Name to the Respondent, particularly almost

immediately after Complainant threatened to pursue a claim under the Policy;

(iv) the Respondent’s continued willingness to sell the Domain Name after acquisition;

and

(v) the linking of the Domain Name to a Korean site or sites.

is wholly inconsistent with any genuine plans to trade under the names NHN

and National Health Network and supports the proposition that the Respondent’s

aim in conjunction with Mr. Nah was to extract a substantial sum of money

from the Complainant.

Faced with these two totally contrasting positions, the Panel was in two minds.

It could have simply relied on the sworn statements of Mr. Nah and Mr. Kim

in which they denied all knowledge of the Complainant and its trademark at all

material times. After all, it is a serious matter to reject a sworn statement.

However, the circumstances were, to say the least, suspicious. The statement

from Mr. Kim, President of the Respondent, stating "we … had no knowledge

of complainant or its trademark when we registered it" seemed inherently

unlikely. Mr. Kim’s company acquired the Domain Name on November 11, 2003,

from Mr. Nah’s company, Mr. Nah being a close business associate of

Mr. Kim and a substantial shareholder in the Respondent and Mr. Nah

being well aware of the Complainant and further being well aware that the Complainant

was prepared to pay a substantial sum of money for the Domain Name.

In the circumstances, the Panel was not prepared to accept the sworn statements

of Mr. Nah and Mr. Kim at face value and issued the Procedural Order

which is set out under the heading of "Procedural Background" above.

In that Procedural Order the Panel drew to the Respondent’s attention the particular

value of contemporaneous documentation to support its assertions and anticipated

that in responding the Respondent would produce some such documentation in support

of its story or at the very least explain why it was not possible to produce

any such documentation. However, despite the Panel’s specific request for such

documentation, no such documentation was produced; nor was there any explanation

for the Respondent’s failure to produce it. The further declarations indicated

that Mr. Nah’s company had a large number of health related domain names,

but that of itself was indicative of nothing. HBX is the owner of a very large

number of other domain names which are not health related domain names. That

is as one would expect given that HBX is a dealer in domain names.

Mr. Kim’s declaration drew the Panel’s attention to the fact that a web

designer had been working on the Respondent’s proposed website since June 2003,

when the Domain Name was first acquired by HBX. In those circumstances, one

would have thought that it would not be too difficult to produce something to

demonstrate bona fide preparations to use the names National Health Network

or its acronym, NHN. However, the Respondent has provided nothing of that kind.

While it is not for the Respondent to prove its innocence, it is incumbent

upon the Respondent to come forward with some hard evidence in rebuttal, when

the Complainant has established a prima facie case. Here, the Panel is of the

view that the Complainant has made out a prima facie case. The Respondent has

a case to answer, but the Respondent has provided no satisfactory answer; the

Respondent’s position is not credible.

On that basis, therefore, the Panel has no alternative but to conclude that

the Complainant’s contentions are correct and that the Respondent and its predecessor

HBX were targeting the Complainant all along and with no genuine intention of

trading under the names NHN and National Health Network.

The Panel finds therefore that the Respondent has no rights or legitimate interests

in respect of the Domain Name.

C. Registered and Used in Bad Faith

By the same reasoning the Panel finds that the Respondent acquired the Domain

Name in bad faith and is using it in bad faith.

The Panel believes it probable that the Respondent’s purpose was to extract

a much larger sum of money from the Complainant. The Panel is less impressed

with the Complainant’s contentions that the Respondent’s objective was to disrupt

the business of the Complainant or to deceive Internet users.

Accordingly, the Panel finds that the Respondent acquired the Domain Name in

bad faith and is using it in bad faith within the meaning of paragraphs 4(a)(iii)

and 4(b)(i) of the Policy.

7. Decision

In light of the foregoing findings, the Panel directs that the Domain Name

<nhn.com> be transferred to the Complainant.

Tony Willoughby

Presiding Panelist

Sang Jo Jong

Panelist

Sally M. Abel

Panelist

Dated: February 27, 2004