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The
Parties Information
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Claimant
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Plan In Interior &
Contracting Co Ltd
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Respondent
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Ashura Lee
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Procedural
History
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On June 28, 2004, the Complainant has submitted
Complaint to the Hong Kong Office of the Asian Domain Name Dispute
Resolution
Centre (the “Centreâ€),
in accordance with the Uniform Domain Name Dispute Resolution
Policy
(the “Policyâ€) adopted by
the Internet Corporation for Assigned Names and Numbers
(“ICANNâ€)
on 26 August 1999, the
Rules for Uniform Domain Name Dispute Resolution Policy Disputes
(the “Rulesâ€),
and ADNDRC
Supplemental Rules for Uniform Domain Name Dispute Resolution
Policy Disputes (the “ADNDRC Supplemental
Rulesâ€. Additional information has been requested or
asked to be clarified, the final version of the Complaint
has been
submitted to the Centre on July 28.
The Complainant has sought
a one-person Panel.
On July 12, 2004, the Centre forwarded
a copy to the Respondent by on-line notification. The 20 day
deadline for the Respondent
to respond calculated from July 12,
2004 expired and the Respondent did not file a Response with the
Centre, as confirmed by
the Centre.
On August 7, 2004,
Arthur Chang has been appointed as the sole Panelist for this case
and all parties have been informed by
email.
The Panelist
has sent questions for clarification and asked the Complainant to
provide evidence to support their claim from
August 12, 2004 and
such communications continued until September 6, 2004. The Panel
therefore asked for extension of submitting
the decision to
September 8, 2004.
The Panelist finds that the
Administrative Panel was properly constituted and appointed in
accordance with the Rules and the
ADNDRC Supplemental Rules.
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Factual
Background
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For
Claimant
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The following facts are asserted by the
Complainant in the Complaint:
The Complainant, Plan In Interior
& Contracting Co Ltd (Plan In), was established in Hong Kong
since 1993 and Quality Design
System Ltd (QDS) a related company
of Plan In. Plan In and QDS are interior design and contracting
companies in both China
and Hong Kong market and the Complainant
has been using Plan In and Quality Design Ltd. since its
incorporation as trade name
for doing business in 1993 and 1996
respectively. The company is currently publishing its web site
using plan-in.com. Furthermore,
the Complainant is using
plan-in.com and QDS is using qds-net.com for all their email
contacts since these domains were initially
set up in year
2000.
The Complainant has commissioned 328 Link Ltd, to set
up the network and web server for the domain name and web site of
the
disputed domain names. The Complainant has provided a signed
quotation (Ref: PI-0002) dated September 13, 2000 for the service
provided by 328 Link Ltd. to register domain names for 2 years
while another invoice (Ref: IN-PL-0015) dated October 2, 2002
for
domain renew service for 5 years for domain name www.plan-in.com.
However, the quotation does not reveal much detail about
the scope
of service. In the quotation mentioned above, the Respondent
Ashura Lee has signed the quotation on behalf of 328
Link Ltd.,
showing he is an authorized representative of 328 Link Ltd. to
provide service for the Complainant. In one email
that the
Respondent replied the Centre on August 13, the Respondent has
mentioned “our address isâ€ﾝ
a company name called 328 Link
Ltd. with contacts and address matching with those as shown on a
signed quotation as described
above.
The Complainant
further explained when the first system was set up, the
Complainant did not have any computer or technical
knowledge/experience to manage the project properly. The
Complainant had no idea on how to set up a domain name or even
what
a domain name is. The Complainant just paid for the job when
the web and email server was set up.
On inspection by the
Panelist on 23 August 2004 both Disputed Domain Names were found
to resolve to the web site of Plan In
Interior & Contracting
Co Ltd., showing all the information related to the
Complainant’s business.
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For
Respondent
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The Centre did confirm that documents have been
sent and received by the Respondent. However, the Respondent had
verbally informed
the centre that he would not respond to the
case, and as such nothing has been received by the Centre from the
Respondent.
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Parties'
Contentions
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Claimant
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The Claimant asserts that the Respondent has no
connection with the trade name “Plan Inâ€ﾝ
or “QDSâ€ﾝ
and has no material or legal
interest in the business activities of Plan In Interior &
Contracting Co Ltd or Quality Design
Ltd.
The Claimant further
asserts that the Respondent was engaged and paid to set up these
domain names on behalf of Plan In &
QDS. Since these domain
names were set up, they are hosted at Plan In’s
working office. Plan In & QDS
have been using both domain
names for their day-to-day email contacts. And therefore, the
Respondent has no rights or legitimate
interests in respect of
these domain names.
The Claimant further asserts that the
Respondent was engaged to register these domain names for the
Complainant. Instead of
registering The Complainant as the
registrant, the Respondent registered himself as the registrant
without The Complainant’s
consent. In Nov 2003,
when qds-net.com was expired, The Complainant was unable to renew
the domain name.
According to the Complainant, during a
verbal conversation with the Respondent, the Respondent agreed to
renew the domain name
for the Complainant for a technical service
fee to be determined by him. The Respondent also agreed to
transfer these domain
names unless the Complainant paid the
Respondent a significant amount of money for service he has not
performed. The Respondent
is using these domain names to obtain
monetary beneficiary from The Complainant and therefore the
Respondent has been using
these domain names in bad faith.
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Respondent
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Save as outlined above, the Respondent did not
respond to any of the claim as submitted by the Complainant.
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Findings
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Identical
/ Confusingly Similar
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The Complainant has not registered any trademark
or service mark for the word “Plan inâ€ﾝ
or “QDSâ€ﾝ.
However, unregistered Trade Mark is sufficient if the Mark is used
in trade and distinguishes goods & services of one
supplier
from those supplied by others as in the case of pcgateway.com &
pcgateway.net of Gateway Inc. v. Cadieux. The
Complainant has
operated business under the trade name of Plan In and Quality
Design System Ltd. since 1993 and 1996 respectively.
The trade
names used are confusingly similar with the Disputed Domain
Names.
The Panel is satisfied that the Complainant has met the
requirements of paragraph 4(a)(i) on the basis of two additional
key
points:
1. For the reasons follow, the Respondent does
not have rights or legitimate interest in the Disputed Domain
Names and
2. The Complainant has been using the domain names
since its registration and has been displaying company information
of the
Complainant at the web site of the Disputed Domain Names,
while the Respondent is a pure service provider to help the
Complainant
register and manage the domain name system
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Rights
and Legitimate Interests
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The Complainant asserts that the Complainant only
paid the Respondent to set up the domain name and related website
system.
The Respondent is not known by the Disputed Domain Names,
or does not operate any business with trade name similar to the
Disputed
Domain Names.
The Disputed Domain Names are resolved
to a web site with description matching the business of the
Complainant. The quotation
(Ref: PI-0002) dated September 13, 2000
and the invoice (Ref: IN-PL-0015) dated October 2, 2002 identifies
the Respondent as
a service provider who provided domain name
registration service for the Complainant. Although there is no
clear description
about the service provided by the Respondent, it
is highly suggestive and believed to be a normal arrangement that
the Complainant
has employed Respondent to register the Disputed
Domain Names on the Complainant behalf, while the Respondent is
only a service
provider to register the Disputed Domain Names
instead of a registrant of the Disputed Domain Names. There is no
evidence that
the Respondent has Rights or Legitimate interests in
the 2 Disputed Domain Names.
The Panel is satisfied that
the Complainant has met the requirements of paragraph 4(a)(ii).
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Bad
Faith
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According to the Complainant and without objection
from the Respondent, during a verbal conversation with the
Respondent, the
Respondent agreed to renew the domain name for the
Complainant for a technical service fee to be determined by him.
The Respondent
also agreed to transfer these domain names if the
Complainant paid the Respondent a significant amount of money. The
Respondent
is using these domain names to obtain monetary benefits
from the Complainant and the Respondent has been using these
domain
names in bad faith according to the Uniform Domain Name
Dispute Resolution Policy 4b.
The failure of the Respondent to
reply to the Complainant’s Case and Complainant
request also indicate bad
faith on the part of the Respondent. The
Respondent has verbally communicated with the Centre and clearly
stated that the Respondent
will not provide any response to this
case. These facts indicate a lack of good faith on the part of the
Respondent.
The Panel is satisfied that the Complainant has
met the requirements of paragraph 4(a)(iii) in showing bad faith
registration
and use of the Disputed Domain Names.
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