FUNimation Entertainment v. JInsoo Yoon
Claim Number: FA1608001687208
Complainant is FUNimation Entertainment (“Complainant”), represented by Evan Stone, Texas, USA. Respondent is JInsoo Yoon (“Respondent”), South Korea.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <attackontitan.com>, registered with DropCatch.com 1044 LLC.
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.
David A. Einhorn appointed as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 7, 2016; the Forum received payment on August 7, 2016.
On August 8, 2016, DropCatch.com 1044 LLC confirmed by e-mail to the Forum that the <attackontitan.com> domain name is registered with DropCatch.com 1044 LLC and that Respondent is the current registrant of the name. DropCatch.com 1044 LLC has verified that Respondent is bound by the DropCatch.com 1044 LLC 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 12, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 1, 2016 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@attackontitan.com. Also on August 12, 2016, the 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 12, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David A. Einhorn 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.
A. Complainant
Complainant has rights in the ATTACK ON TITAN mark through its registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 4,669,798, registered Jan. 13, 2015). Respondent’s <attackontitan.com> domain name is textually identical to the ATTACK ON TITAN mark.
Policy ¶ 4(a)(ii)
Respondent is not commonly known by the <attackontitan.com> domain name and has no permission to use the ATTACK ON TITAN mark. Respondent fails to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because the domain was registered for the purpose of selling it to a third party.
Policy ¶ 4(a)(iii)
Respondent uses the <attackontitan.com> domain name in bad faith because it is offered for sale with a minimum bid of €4,900. Respondent registered the <attackontitan.com> domain name after the ATTACK ON TITAN mark was registered.
B. Respondent
Respondent failed to submit a Response in this proceeding. The Panel notes that the <attackontitan.com> domain name was created on February 28, 2016.
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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Complainant claims to have rights in the ATTACK ON TITAN mark through registration of this mark with the USPTO (Reg. No. 4,669,798, registered Jan. 13, 2015). Complainant has provided this registration, as well as a license agreement between Complainant and the mark’s owner, Kondasha, Ltd, to support Complainant’s use of the mark for the production of animated and live action television. Prior panels have found that even a non-exclusive license agreement may be deemed sufficient to establish rights under Policy ¶ 4(a)(i) where, as here, respondent did not respond to complainant. See, e.g., Indianapolis Downs, LLC v. Philip Mazzone c/o Muzzhound and listmytimeshare, FA 1244694 (Forum Mar. 11, 2009). Accepting all reasonable allegations and inferences set forth in the Complaint, this Panel therefore finds that Complainant has shown rights in the mark under Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <attackontitan.com> domain name is textually identical to the ATTACK ON TITAN mark. The Panel agrees that the mark and the domain name are identical.
Thus, Complainant has satisfied Policy ¶ 4(a)(i).
Complainant asserts that Respondent is not commonly known by the <attackontitan.com> domain name and has no permission to use the ATTACK ON TITAN mark. The Panel notes that Respondent has not provided a response in this proceeding and that the available WHOIS information identifies “JInsoo Yoon” as Registrant. The Panel finds lack of evidence to indicate that Respondent is commonly known by the <attackontitan.com> domain name.
Complainant contends that Respondent fails to use the <attackontitan.com> domain name to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because the domain was registered for the purpose of selling it to a third party and has never been used for such a bona fide offering or legitimate noncommercial or fair use. The Panel finds that Respondent fails to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii). See eBay Inc. v. Hong, D2000-1633 (WIPO Jan. 18, 2001) (stating that the respondent’s use of the complainant’s entire mark in domain names makes it difficult to infer a legitimate use); see also Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Forum Sept. 30, 2003) (“Respondent’s demonstrated intent to divert Internet users seeking Complainant’s website to a website of Respondent and for Respondent’s benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).
Thus, Complainant has also satisfied Policy ¶ 4(a)(ii).
Complainant maintains that Respondent uses the <attackontitan.com> domain name in bad faith because it is offered for sale with a minimum bid of €4,900. Complainant has provided evidence of this offer for sale both on <sedo.com> and in the WHOIS information. Such offer of sale constitutes some evidence of bad faith. See Citigroup Inc. v. Kevin Goodman, FA 1623939 (Forum July 11, 2015) (holding that the evidence showed that the respondent registered the disputed domain name primarily for the purpose of transferring it for a profit and demonstrates the respondent’s bad faith registration and use of the disputed domain name pursuant to Policy ¶ 4(b)(i).); see also Staples, Inc. v. lin yanxiao, FA 1617686 (Forum June 4, 2015) (“Respondent’s offering to sell the disputed domain name to a third party (in this case, the general public) supports a finding of bad faith registration and use.”).
Complainant also contends that Respondent registered the <attackontitan.com> domain name in February 2016 after the ATTACK ON TITAN mark was registered in January 2015. The Panel finds the timing of the domain’s registration of the identical mark to be suggestive of actual knowledge of Complainant’s rights in the ATTACK ON TITAN mark. This further supports a finding of bad faith.
Thus, Complainant has also satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <attackontitan.com> domain name be TRANSFERRED from Respondent to Complainant.
David A. Einhorn, Panelist
Dated: September 26, 2016
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