WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Olympus Corporation v. Zheng Hua
Case No. D2010-0378
1.
The Parties
The Complainant is Olympus Corporation of Tokyo, Japan, represented by Ratza &
Ratza, Romania.
The Respondent is Zheng Hua of Jurong East, Singapore.
2.
The Domain Name and Registrar
The disputed domain name <olympus-u12.com> is registered with DomainSails.net
LLC.
3.
Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center
(the “Center”) on March 12, 2010. On March 12, 2010, the Center transmitted by email
to DomainSails.net LLC. a request for registrar verification in connection with the
disputed domain name. On March 12, 2010, DomainSails.net LLC. transmitted by
email to the Center its verification response confirming that the Respondent is listed as
the registrant and providing the contact details. The Center verified that the Complaint
satisfied the formal requirements of the Uniform Domain Name Dispute Resolution
Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute
Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform
Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the
Respondent of the Complaint, and the proceedings commenced on March 17, 2010. In
accordance with the Rules, paragraph 5(a), the due date for Response was
April 6, 2010. The Respondent did not submit any response. Accordingly, the Center
notified the Respondent’s default on April 7, 2010.
The Center appointed Fabio Angelini as the sole panelist in this matter on
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April 13, 2010. The Panel finds that it was properly constituted. The Panel has
submitted the Statement of Acceptance and Declaration of Impartiality and
Independence, as required by the Center to ensure compliance with the Rules,
paragraph 7.
Since the language of the Registration Agreement is English, the Complaint was
submitted in English and the Complainant requested that the language of proceedings
be English, in light of paragraph 11(a) of the Rules which provides that, subject to the
authority of the Panel, the language of the proceedings shall be the same as the
language of the Registration Agreement, in absence of parties’ agreement to establish
otherwise, the Panel will issue this decision in English.
4.
Factual Background
The following factual background is derived from the Complaint and annexes thereto,
all of which is undisputed by the Respondent and found by the Panel to be plausible.
Olympus Corporation (hereinafter referred to as “Olympus”) is a Japan-based company
that manufactures optics and imaging products. Olympus was established on
October 12, 1919, initially specialized in microscope and thermometer businesses. The
company is named after Mount Olympus, the home of the 12 supreme gods and
goddesses in Greek mythology. In Japanese mythology, it is said that eight million
gods and goddesses live in Takamagahara, the peak of Mount Takachiho. Takachiho is
the name of the predecessor of Olympus Corporation. The company selected the name
"Olympus" as the trademark because Mount Olympus, like Mount Takachiho, was the
home of gods and goddesses.
In 1949, the name changed to Olympus Optical Co., Ltd., in an attempt to enhance its
corporate image. In 2003, the company name changed again, to Olympus Corporation,
to unify the corporate name and the well-known brand.
Olympus has a long history in camera and lens design. The company is a leading
manufacturer of digital cameras, with a large range of compact digital cameras.
Olympus is also the exclusive owner of a substantial number of trademark registrations
for the name Olympus, all over the world, including the trademark registration number
777136 dating back 2001, in Singapore, where the respondent allegedly resides.
Moreover, the Complainant is the exclusive owner of several official sites, like
http://www.olympus-global.com/en/global/, http://www.olympus.co.jp, and
http://www.olympusamerica.com.
Finally the Complainant has been sponsoring the Japanese Youth Soccer Championship
(commonly known as Under 12 or U12) for several years. Previously, the domain
name <olympus-u12.com> was used for a website to support and cheerlead Elementary
school soccer teams, but on April 2009 this website was closed. On April 15, 2007, the
registrant of <olympus-u12.com> was the Japanese company “Astra The Studio Inc.”
that operated the official website and was authorized by the Complainant to use the
OLYMPUS trademark. On September 9, 2008 the ownership changed to “R.V.C Inc”
and on April 26, 2009 this domain name was deleted by the registrar. On June 1, 2009
<olympus-u12.com> was re-registered by the Respondent.
The disputed domain name currently redirects users to other websites, unrelated to
Complainant and/or selling wares and other products, including products manufactured
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by the Complainant’s competitors.
5.
Parties’ Contentions
A.
Complainant
The Complainant’s contentions, to the extent not reproduced in the Factual Background
section, are set forth in the Discussion and Findings section below in the context of the
three elements required for a transfer of the Domain Name under the Policy.
B.
Respondent
The Respondent did not reply to the Complainant’s contentions.
6.
Discussion and Findings
Paragraph 4(a) of the Policy lists the three elements which the Complainant must
satisfy with respect to the Domain Name:
(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 interests in respect of the Domain
Name; and
(iii) the Domain Name has been registered and is being used in bad faith.
A.
Identical or Confusingly Similar
The Complainant has registered trademark rights in the name OLYMPUS all over the
world and in Singapore as well as shown by the data provided by the Complainant and
independently verified by the Panel.
The Domain Name incorporates Complainant’s mark in its entirety, and simply adds
the descriptive term U12 which, as indicated in the Factual Background clearly refers to
an Under 12 youth soccer league.
In the Panel’s view, the additional term, which is not distinctive, does not diminish, but
actually increases the confusing similarity between the Complainant’s mark and the
Domain Name, (as similarly held in Lacoste Alligator S.A. v. China Bizseas, WIPO
Case No. D2009-0493: “Compared to the Trademark, the Domain Name <lacosteshopping.com> completely reproduces the former with the only difference being the
mere addition of the generic term “shopping” and the generic top-level term “.com”.
However, neither of these two terms is sufficient to differentiate the disputed domain
name from the Trademark. Instead, the addition of the generic term “shopping” is more
likely to mislead Internet users into believing that the sites linked to the Domain Name
are the official sites of the Complainant or in some way associated with the
Complainant, when in fact this is not”).
Accordingly, the Panel finds that paragraph 4(a)(i) of the Policy is satisfied.
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B.
Rights or Legitimate Interests
The Respondent may establish its rights or legitimate interests in the Domain Name, in
accordance with paragraph 4(c) of the Policy by showing, among other circumstances,
any of the following elements:
(i)
before any notice to the Respondent of the dispute, 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)
The Respondent (as an individual, business, or other organization) has been
commonly known by the Domain Name, even if the Respondent has not acquired
trademark or service mark rights; or
(ii)
The Respondent is making a legitimate noncommercial 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.
While the Complainant bears the burden of proof on the “rights or legitimate interests”
issue nevertheless, the Panel agrees with PepsiCo, Inc. v. Amilcar Perez Lista d/b/a
Cybersor, WIPO Case No. D2003-0174, which held that “A [r]espondent is not
obliged to participate in a domain name dispute proceeding, but its failure to do so can
lead to an administrative panel accepting as true the assertions of a complainant which
are not unreasonable and leaves the respondent open to the legitimate inferences which
flow from the information provided by a complainant.”
The Respondent did not file a Response and as such may accept the reasonable and
supported assertions of the Complaint to be true. As such, the Panel evaluating the
circumstances of the case notes that on the records there is no evidence that:
1)
The Respondent has ever been authorized to use the Complainant’s mark in a
domain name or otherwise;
2)
The Respondent is commonly known by the Domain Name, or has made
substantial preparations to use the Domain Name in connection with a bona fide
offering of goods or services.
3)
The Respondent has ever claimed or may claim a noncommercial or fair use of
the OLYMPUS mark in its Domain Name, and the Panel cannot find any basis
for recognizing any such use.
Accordingly, the Panel finds that paragraph 4(a)(ii) of the Policy is satisfied.
C.
Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides that the following circumstances, “in particular
but without limitation,” are evidence of the registration and use the Domain Name in
“bad faith”:
(i)
circumstances indicating that the Respondent has registered or has acquired the
Domain Name primarily for the purpose of selling, renting, or otherwise
transferring the domain name registration to the Complainant who is the owner of
the trademark or service mark or to a competitor of that Complainant, for
valuable consideration in excess of its documented out-of-pocket costs directly
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related to the Domain Name; or
(ii)
that the Respondent has registered the Domain Name in order to prevent the
owner of the trademark or service mark from reflecting the mark in a
corresponding domain name, provided that the Respondent has engaged in a
pattern of such conduct; or
(iii) that the Respondent has registered the Domain Name primarily for the purpose of
disrupting the business of a competitor; or
(iv) that by using the Domain Name, the Respondent has intentionally attempted to
attract, for commercial gain, Internet users to the Respondent’s website or other
on-line location, by creating a likelihood of confusion with the Complainant’s
mark as to the source, sponsorship, affiliation, or endorsement of the
Respondent’s website or location or of a product or service on the Respondent’s
website or location.
The Complainant alleges that the Respondent has not chosen the Domain Name
randomly but for an illegitimate commercial use. According to Complainant,
Respondent registered such a domain name because:
-
the Domain Name was for several years an official website linked with the
Complainant’s sponsored activity; and
-
OLYMPUS is a well-known trademark; and
-
to take advantage of the Complainant reputation using this Domain Name to
redirect users to other websites.
Furthermore, the Complainant alleges another element to corroborate its claims that the
Domain Name was registered and used in bad faith: apparently the Domain Name is
not the only domain name identical to a well-known trademark registered by the
Respondent.
In fact, using the “Whois Record” tool available at “DomainTools.com” the
Complainant discovered that there are more that 2,361 domain names owned by “Zheng
Hua” such as
<TagHeuerReplicaWatch.com> and <Koelnmesse.asia> and also full name of famous
people such as <Rachael-Ray.org>; in addition and there are 1,623 domain names
associated with the contact email “[
]@gmail.com”.
Against these serious allegations the Respondent did not provide any explanations or
reasons as to why he had registered the Domain Name in the first place and he is using
it in the manner which the domain name is currently used, nor as to why it registered
such a large number of domain names which in the Panel’s view seem readily
associated with third party trademarks.
Therefore, the Panel finds that the Complainant has thus successfully established the
circumstances listed under paragraph 4(b)(ii) and 4(b)(iv)of the Policy and accordingly,
the Panel finds that paragraph 4(a)(iii) of the Policy is satisfied.
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7.
Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15
of the Rules, the Panel orders that the Domain Name <olympus-u12.com> be
transferred to the Complainant.
Fabio Angelini
Sole Panelist
Dated: April 19, 2010
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