Goal Zero LLC v. KIM JI HYUN
Claim Number: FA2208002008676
Complainant is Goal Zero LLC (“Complainant”), represented by Caitlin Costello, Virginia, USA. Respondent is KIM JI HYUN (“Respondent”), Korea.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <goalzerokorea.com>, registered with Whois Corp..
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
The Honorable Neil Anthony Brown QC as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 16, 2022; the Forum received payment on August 16, 2022. The Complainant was received in both Korea and English.
On August 17, 2022, Whois Corp. confirmed by e-mail to the Forum that the <goalzerokorea.com> domain name is registered with Whois Corp. and that Respondent is the current registrant of the name. Whois Corp. has verified that Respondent is bound by the Whois Corp. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On August 23, 2022, the Forum served the Korean language Complaint and all Annexes, including a Korean and English language Written Notice of the Complaint, setting a deadline of September 12, 2022 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@goalzerokorea.com. Also on August 23, 2022, the Korean and English language Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On September 21, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed The Honorable Neil Anthony Brown QC as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: LANGUAGE OF THE PROCEEDINGS
The Panel notes that the Registration Agreement is written in the Korean language, thereby making the language of the proceedings in Korean.
Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Korean language Complaint and Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
A. Complainant
Complainant made the following contentions.
Complainant engages in the business of manufacturing sustainable power solutions. Complainant asserts rights in the GOAL ZERO mark through its registration of the mark with multiple trademark agencies throughout the world, including the United States Patent and Trademark Office (USPTO) (e.g., Reg. No. 4,564,422, registered on July 8, 2014). See Compl. Ex. B. Respondent’s <goalzerokorea.com> domain name is identical or confusingly similar to Complainant’s GOAL ZERO mark, as it incorporates the mark in its entirety, only adding the geographic term “korea” and the “.com” generic top-level domain (gTLD).
Respondent has no rights or legitimate interests in the <goalzerokorea.com> domain name. Complainant has not authorized or licensed Respondent to use the GOAL ZERO mark, nor is Respondent commonly known by the disputed domain name. Further, Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services or legitimate noncommercial or fair use as the resolving website lacks any substantive content.
Respondent registered and uses the disputed domain name in bad faith. Respondent’s <goalzerokorea.com> domain name currently resolves to an inactive website that lacks substantive content.
B. Respondent
Respondent failed to submit a Response in this proceeding.
1. Complainant is a United States company that engages in the business of manufacturing sustainable portable power solutions.
2. Complainant has established its rights in the GOAL ZERO mark through its registration of the mark with multiple trademark agencies throughout the world, including the United States Patent and Trademark Office (USPTO) (e.g., Reg. No. 4,564,422, registered on July 8, 2014).
3. Respondent registered the <goalzerokorea.com> domain name on August 12, 2021.
4. Respondent has caused the domain name to resolve to a website that lacks any substantive content.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The first question that arises is whether Complainant has rights in a trademark or service mark on which it may rely. Complainant submits that it has rights in the GOAL ZERO mark through its registration of the mark with multiple trademark agencies around the world, including the USPTO (e.g., Reg. No. 4,564,422, registered on July 8, 2014). See Compl. Ex. B. Registering a mark with multiple trademark agencies is sufficient to establish rights in a mark pursuant to Policy ¶ 4(a)(i). See Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sep. 4, 2018) (“Complainant has rights in the GMAIL mark based upon its registration of the mark with numerous trademark agencies around the world.”). Since Complainant provides evidence of the registration of the mark with the USPTO, among many others, the Panel finds Complainant has sufficiently established its rights in the mark per Policy ¶ 4(a)(i).
The next question that arises is whether the disputed domain name is identical or confusingly similar to Complainant’s GOAL ZERO mark. Complainant argues Respondent’s <goalzerokorea.com> domain name is identical or confusingly similar to Complainant’s GOAL ZERO mark, as it incorporates the mark in its entirety, only adding the geographic term “Korea”, as well as the “.com” gTLD. Merely adding a geographic term and a gTLD is not sufficient to distinguish a disputed domain name from a mark. See Cargill, Incorporated v. Sales Office / Cargill Brasil, FA 1737212 (Forum July 21, 2017) (finding the addition of the geographic term “Brasil” does not avoid confusing similarity pursuant to Policy ¶ 4(a)(i).); see also Marquette Golf Club v. Al Perkins, FA 1738263 (Forum July 27, 2017) (“When a respondent’s domain name incorporates a mark in its entirety and merely adds a generic top-level domain (gTLD), “.com”, then the Panel may find that the disputed domain name is identical to Complainant’s mark.”). The Panel therefore finds Respondent’s <goalzerokorea.com> domain name is confusingly similar to Complainant’s GOAL ZERO mark.
Complainant has thus made out the first of the three elements that it must establish.
It is now well established that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
(a) Respondent has chosen to take Complainant’s GOAL ZERO mark and to use it in its domain name adding the geographic term “Korea” to the mark, which does not negate the confusingly similarity between the domain name and the trademark;
(b) Respondent registered the domain name on August 12, 2021;
(c) Respondent has caused the domain name to resolve to a website that lacks any substantive content;
(d) Respondent has engaged in these activities without the consent or approval of Complainant;
(e) Complainant contends Respondent lacks rights and legitimate interests in the <goalzerokorea.com> domain name because Respondent is not authorized to use the GOAL ZERO mark, nor is Respondent commonly known by the disputed domain name. To determine whether a respondent is commonly known by a disputed domain name under Policy ¶ 4(c)(ii), the Panel may reference WHOIS information. See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same). Furthermore, lack of authorization to use a mark serves as further indication that a respondent is not commonly known by the disputed domain name. See Radio Flyer Inc. v. er nong wu, FA 2011001919893 (Forum Dec. 16, 2020) (“Here, the WHOIS information lists “er nong wu” as the registrant and no information suggests Complainant has authorized Respondent to use the RADIO FLYER mark in any way. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).”). In this case, the WHOIS information shows Respondent is known as “Kim Ji Hyun” and there is no evidence to suggest Complainant authorized Respondent to use the GOAL ZERO mark in any way. See Registrar Verification Email. Therefore, the Panel finds Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii);
(f)Complainant argues Respondent does not use the <goalzerokorea.com> domain name for a bona fide offering of goods and services or legitimate noncommercial or fair use as the resolving website lacks any substantive content. Using a domain name to host an inactive website or one that lacks any substantive content does not constitute a bona fide offering of goods and services or legitimate noncommercial or fair use pursuant to Policy ¶¶ 4(c)(i) and (iii). See Dell Inc. v. link growth / Digital Marketing, FA 1785283 (Forum June 7, 2018) (“Respondent’s domain names currently display template websites lacking any substantive content. The Panel finds that Respondent has does not have rights or legitimate interests with respect of the domain name per Policy ¶¶ 4(c)(i) or (iii).”). Here, Complainant provides a screenshot of the resolving website, which shows basically no substantive content. See Compl. Ex. C. The Panel therefore finds Respondent does not use the <goalzerokorea.com> domain name for a bona fide offering of goods and services or a legitimate noncommercial or fair use of the domain name as the resolving website is inactive.
All of these matters go to make out the prima facie case against Respondent.
As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent does not have a right or legitimate interest in the disputed domain name.
Complainant has thus made out the second of the three elements that it must establish.
It is clear that to establish bad faith for the purposes of the Policy, Complainant must show that the disputed domain name was registered in bad faith and has been used in bad faith. It is also clear that the criteria set out in Policy ¶ 4(b) for establishing bad faith are not exclusive, but that Complainants in UDRP proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression.
Having regard to those principles, the Panel finds that the disputed domain name was registered and used in bad faith. That is so for the following reasons.
First, Complainant argues Respondent registered and uses the <goalzerokorea.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii). The Panel will look beyond the specified criteria set out in ¶ 4(b) to the totality of the circumstances when analyzing bad faith. See Digi Int’l Inc. v. DDI Sys., FA 124506 (Forum Oct. 24, 2002) (determining that Policy ¶ 4(b) sets forth certain circumstances, without limitation, that shall be evidence of registration and use of a domain name in bad faith).
Complainant submits Respondent registered and uses the disputed domain name in bad faith because the resolving website has been inactive and lacking substantive content since its registration. Previously, panels have agreed that holding a domain name only to redirect users to an inactive website is indicative of bad faith. See Regions Bank v. Darla atkins, FA 1786409 (Forum June 20, 2018) (“Respondent registered and is using the domain name in bad faith under Policy ¶ 4(a)(iii) because Respondent uses the domain name to host an inactive website.”). Here, Complainant provides evidence of the resolving website lacking any substantive content since it was registered in August of 2021. See Compl. Ex. C. The Panel therefore finds Respondent registered and uses the <goalzerokorea.com> domain name in bad faith per Policy ¶ 4(a)(iii).
Complainant has thus made out the third of the three elements that it must establish.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <goalzerokorea.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Neil Anthony Brown QC
Panelist
Dated: September 22, 2022
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