Plaintiff (Law Firm Boo-In International, Attorney Jeong Jae-sik, Counsel for the plaintiff-appellant)

2. The term “the term “the term “the term” means the term “the term “the term” means the term “the term “the term” in this case.

July 13, 2010

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

It is confirmed that the defendant's right to transfer or prohibit the use of the domain name "www.nca.com" does not exist.

1. Basic facts

A. On May 10, 200, the Plaintiff is a national of the Republic of Korea who registered the domain name "nca.com" (hereinafter "the domain name of this case") in Sweden Co., Ltd. (www.cypack, hereinafter "Sweden"), a registrar for the domain name, on May 10, 200.

B. Around 1948, Nonparty 1 of the United States: (a) established the NCA Federation; (b) operated a crowdfunding campaign that enables high school students and undergraduate students to learn up the crowdfunding; (c) held a pandeer meeting; and (d) manufactured and sold the pandecing intent and goods. The NCA Federation began to use the trademark of NCA from around 1952 to February 11, 1997; and (d) registered the NCA mark in the Korea Patent Office, the European Trademark Office, and the European Trademark Office on October 15, 2002.

On the other hand, around 1974, Non-party 2 established Univers' Asss Union (UCA) and extended the business sector by creating a department that manufactures Syman's will, and products, in addition to holding a campaign that teaches students to teach Syman. After the increase in sales of Syman's clothes and products, Non-party 2 changed UCA into a name of the defendant company as of 192.

In around 2008, the defendant and the NCA Group were merged with the NCA Group, and the defendant was fully succeeded to all the rights including the NCA trademark rights, and the US trademark rights on the NCA mark were transferred and registered in the name of the defendant on July 21, 2008.

C. The Plaintiff opened a web site using the domain name of this case and opened various search terms, including the words such as NCA Cheleading, Cheleleling, Cheleleling, Outfits, Cheleling, and Cheleling Shoes, and set up a link connected to a third party’s web site that includes services such as adult goods, and a link linked to a third party’s web site that connects Internet goods, etc. to the Defendant’s competitor’s web site.

D. On August 12, 2008, the defendant applied for dispute settlement against the plaintiff on the ground that the plaintiff owns a domain name similar to the defendant's trademark in bad faith without a legitimate right, and the above committee applied for an order to order the transfer of the domain name to the defendant. Pursuant to Article 4 (a) of UDRP on October 13, 2008, only an expansion of the general largest domain name among the plaintiff's domain names is the same as "NCA" among the defendant's registered trademarks. Nca exceptcom is identical to "NCA" among the defendant's registered trademarks, and the plaintiff's act of allowing its visitors to link the web site in competition with the defendant's trademark is intended to gain profits by inducing Internet users who want to use the defendant's service through the defendant's domain name in bad faith without a legitimate right, and thus, the plaintiff filed a lawsuit against the plaintiff as to the plaintiff's right to the domain name in this case and the plaintiff's objection to the plaintiff's transfer of the domain name in this case is without legitimate interest.

[Ground of recognition] Each entry of Gap 7, 10, and 11, Eul 1 through 6, Eul 11 through 16, and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

The plaintiff registered the domain name of this case for the future domain business, and used the domain name of this case by opening a web site under the domain name of this case and providing search watch in various languages. Thus, the plaintiff has legitimate rights and interests with respect to the domain name of this case, and although the plaintiff did not have any unlawful purpose with respect to the NCA mark which is the defendant's registered trademark, the national arbitration committee decided to transfer the domain name of this case to the plaintiff by the defendant was erroneous in determining whether the plaintiff satisfies the requirements of Article 4 (a) and (c) of UDRP, and therefore, it is sought to confirm that there is no right to claim the transfer or prohibition of the domain name of this case against the plaintiff of this case.

B. Defendant’s assertion

(1) The defendant holds NCA trademarks and service marks registered in the U.S. and Europe. Thus, the plaintiff has a legitimate right to the domain name of this case, and the plaintiff's registration and possession of the domain name of this case cannot be deemed as a legitimate right or interest to the domain name of this case for the purpose of preparing the Internet business. The plaintiff's registration and possession of the domain name of this case are obviously aimed at hindering the business of the person who has legitimate right to the domain name of this case or obtaining unjust profits from them. Thus, since the plaintiff's registration of the domain name of this case satisfies Article 4 (a) and (c) of UDRP, and there is no defect in the decision to transfer the domain name of this case, the plaintiff's claim shall be dismissed.

(2) On the other hand, the defendant has the right to request the plaintiff to transfer or prohibit the use of the domain name of this case pursuant to the Anti-Rescept Consumer Protection Act (ACPA).

(3) In addition, the Plaintiff’s act constitutes “registration, possession, and use of a domain name with a legitimate title by a third party” prohibited under Article 12 of the Internet Address Resources Act, and thus, the Defendant has the right to request the Plaintiff to transfer the domain name of this case.

3. Determination

A. Whether UDRP can be a standard for determining the defendant's right to prohibit the use of the domain name of this case and the right to claim registration of transfer

In the event a dispute arises between a domain name registrant and a person holding rights to a trademark or service mark (hereinafter “third party”) as part of the terms and conditions of registration agreed upon between the domain name registrant and the registrant of the domain name, the UDRP is a provision on the administrative procedure of the registrar to improve the appropriateness of the registration administration by promptly making a decision on the maintenance, cancellation, transfer, etc. of the registration. It is not only before or after the commencement of mandatory administrative procedures under the dispute resolution policy, but also during the process, the court with international jurisdiction, as well as before or after the commencement of the mandatory administrative procedure under the dispute resolution policy (see Article 4(k) of the Dispute Resolution Policy, Article 18(a) of the Rules on Dispute Resolution Policy, and Article 18(2) of the same Rules, and it is not binding on the registrar and the registrant and the third party, and it is not an agreement between the third party and the third party on the registration and the third party (see Article 20(5) of the same Rules, unless there are special circumstances to regulate the dispute resolution of the domain name in question.

Therefore, in the lawsuit of this case filed by the plaintiff against the decision of transfer of the domain name in accordance with UDRP, UDRP cannot be a judicial judgment standard as to the defendant's right to prohibit the use of the domain name of this case and the existence of the right to claim transfer registration of the domain name of this case. Thus, the defendant's assertion that there is no defect in the decision of transfer of the National Arbitration Commission because the plaintiff's registration of the domain name of this case satisfies Article 4 (a) and (c)

B. Whether the U.S. Anti-Explosion Consumer Protection Act (hereinafter “ACPA”) can serve as the defendant's standard for determining the defendant's right to prohibit the use of the domain name of this case and the right to claim registration of transfer

(1) In the instant case, the Defendant’s claim for the prohibition of use and the registration of transfer of the domain name against the Plaintiff is based on the property right of a private person. The Plaintiff’s address is Korean in the Republic of Korea, the Defendant is a U.S. corporation with its principal office located in the Republic of Korea, and the Plaintiff’s claim for an act in the Republic of Korea, but the international elements are included in the claim based on the rights conferred by

The claim for the prohibition of use and the registration of transfer of the domain name based on the US ACPA differs from the purport and character of the claim based on the tort aimed at compensating the damage in the past caused by the definition and fairness, and is based on the exclusive effect of the US trademark rights. Therefore, it is reasonable to view the legal nature of the claim for the prohibition of use and the registration of transfer of the domain name based on the US trademark rights as the effect of trademark rights

In addition, Article 24 of the Private International Act provides that "the protection of intellectual property shall be governed by the law of the place of infringement" with respect to the validity of trademark rights. This provision provides that "the protection of intellectual property shall be governed by the law of the country of infringement." This provision stipulates only the governing law of the infringement of intellectual property since it is not so necessary to regulate the general governing law of the intellectual property, and in relation to the infringement of intellectual property, only the country of protection recognized by the protection of the intellectual property may be recognized. Therefore, the governing law of the effect of trademark rights shall be interpreted to be in accordance with the law of the country where the trademark right is registered, which is the country most closely related to the trademark right in question which falls under the law of the place of infringement of Article 24 of the Private International Act, is recognized as the right of each country. This provision is interpreted to be a country where trademark rights are registered, and according to the law of the country concerned, the effect of trademark rights is recognized only within the territory of the country concerned, and as long as the effect of trademark rights is recognized only within the territory of the country concerned.

Therefore, the law of the country where the trademark right concerned is registered shall be deemed to be the law of the country where the trademark right concerned is registered, and the law of the United States, which is the country where the trademark right in the United States is registered, shall be the law of the prohibition of use and transfer of the domain name.

(2) However, the ACPA of the United States (Article 1125(d) of the United States Code) provides that when using a domain name which is similar to, or dilution a well-known trademark, which is likely to cause confusion with, a trademark with an improper purpose, which is identical or similar to, a trademark with another person's trademark, for an unjust purpose, may cause confusion as to the use of or confusion with a well-known trademark, the court may order the cancellation or cancellation of the registration of the domain name or the transfer of the domain name to the owner of the trademark. In addition, when determining unjust purposes, the court may order the registrant of the domain name to cancel or cancel the registration of the domain name or transfer the domain name to the owner of the trademark. In determining unjust purposes, whether the registrant of the domain name intended to damage the credibility of the trademark by inducing the consumers from the online domain of the owner of the trademark right to a site via the domain name. Whether there was an intent to cause confusion with the main body of the site's operation, thereby causing confusion as to

Therefore, according to the ACPA, even if the domain name is registered with the registration agency in Korea, the request for cancellation of the registration of the domain name or for the registration of the transfer of the domain name may be accepted within the territory of Korea as to the act of infringing trademark rights of the United States by using the domain name similar to that of another person's trademark for unlawful purpose.

However, Korea adopts the territorialism principle as to trademark rights, and according to which each country's trademark rights are in force only within the territory of the country concerned, recognition of cancellation (Prohibition of Use) or transfer registration of the domain name in Korea based on the trademark rights of the United States of America would bring about the same result as that of the trademark rights of the United States of America to the Republic of Korea outside the United States, which is its territory, and thus go against the territorialism principle that the Republic of Korea is adopted. In addition, there is no treaty between the Republic of Korea and the United States, which stipulates that the trademark rights of the other country should be recognized in its territory. Thus, recognition of the duty of prohibiting use or transfer of the domain name of the Republic of Korea as the effect of prohibiting infringement of the trademark rights of the United States of America is not acceptable in light of the basic principles of the Republic of Korea's trademark law order. Accordingly, it is reasonable to deem that the obligation of prohibiting use and transfer registration of the domain name of this case to the Plaintiff by applying the above provisions of the United States ACP is contrary to the social order of Korea under Article 10 of private International Law.

(3) Therefore, the U.S. ACP cannot serve as a judicial standard for the defendant's right to prohibit the use of the domain name of this case and the existence of the right to request the registration of transfer. Therefore, the defendant's assertion is without merit.

C. Whether the registration and use of the domain name of this case violates Article 12(1) of the Internet Address Resources Act (hereinafter “Internet Address Resources Act”).

(1) Scope of the Internet Address Resources Act

Article 4 of the Internet Address Resources Act provides that "this Act applies to Internet address resources, such as Internet protocol addresses assigned in the Republic of Korea and domain names registered, possessed, or used in the Republic of Korea," and Article 9782 (2) of the Addenda provides that "Internet address addresses registered in Internet address management organizations, etc. at the time this Act enters into force shall be deemed Internet addresses registered under this Act," and the above domain name of this case shall be deemed as Internet address addresses registered under this Act, and since the plaintiff registered the domain name of this case on May 10, 200, the domain name of this case shall be deemed as Internet address addresses registered under the Internet Address Resources Act, the Internet Address Resources Act shall apply to the domain name of this case.

(2) Whether Article 12(1) of the Internet Address Resources Act is violated

Article 12(1) of the Internet Address Resources Act provides that "No person shall interfere with the registration of a domain name of a legitimate title holder or register, possess or use the domain name for unjust purposes, such as gain from a legitimate title holder." Paragraph (2) provides that "any person who has legitimate title may request the court to cancel or transfer the registration of a domain name, etc. in violation of Paragraph (1)." As to whether the registration and use of the domain name of this case violated Article 12(1) of the Internet Address Resources Act, the Plaintiff started to use the trademark "NCA" from around 1952 to February 11, 1997, and the mark "NCA" was transferred to the Ministry of Patent and Trademark Office of the United States of America for the purpose of "No person who has legitimate title" and "No person who has registered the domain name of this case from the web site of this case for the purpose of CA No. 2066, Oct. 15, 202, 197.

In regard to this, the Plaintiff’s “person who has a legitimate title” under Article 12 of the Internet Address Resources Act shall be interpreted as “a person who holds the right to a mark widely known to the Republic of Korea.” Since the mark of NCA was not known to the Republic of Korea, the Defendant asserted that it is not a person who has a legitimate title under the Internet Address Resources Act, and thus, the scope of its application is not limited to the domain name pursuant to the National Code of the Republic of Korea with the purpose of enacting Article 12 of the Internet Address Resources Management Act for the regulation of cyber quota and the revision of September 10, 2009, and the purport of expanding the scope of its application to the domain name of the Republic of Korea. In full view of the purport of expanding the registration, possession, or use in the Republic of Korea, it cannot be deemed that the right holder who intends to exercise the right to claim the cancellation of registration or transfer of the domain name under Article 12 of the Internet Address Resources Management Act must have a mark

(3) Sub-decisions

Therefore, the defendant has the right to request the plaintiff to cancel the registration of the domain name of this case (Prohibition of Use) or transfer the domain name of this case pursuant to Article 12(2) of the Internet Address Resources Act.

4. Conclusion

Therefore, the plaintiff's claim seeking confirmation of the absence of the defendant's right to transfer or prohibit the use of the domain name of this case against the plaintiff is without merit, and it is dismissed as per Disposition.

Judges Kang Dong-dong (Presiding Judge)

Note 1) The registrant is NB Group. The NB Group is the parent company of the company established by Nonparty 1 with respect to the set-up clothes, supplies, etc.

2) At present, the domain name of this case (www.nca.com) is in line with the web site (Internet address omitted) of Ma Mediadis Co., Ltd. operated by the Plaintiff.

3) The Internet Address Management Organization (hereinafter “UDRP”) has set up the Uniform domain Name Dispute Resolution Policy (UN) in order to resolve disputes over the registration and use of the Internet domain name in a prompt and influent manner. The National Arbitration Commission of the United States is one of the dispute resolution agencies under UDRP. The main contents of UDRP are as shown in the attached Form.

4) Cyber quotaing refers to the act of putting an Internet address, such as the name of an enterprise, organization, institution, organization, etc. which has been well-known, such as domain lines or illegal possession, for the purpose of speculation or sale.

5) Prior to the amendment by Act No. 9782 on June 9, 2009, Article 4 of the Internet Address Resources Act provides that “This Act shall apply to Internet address resources, such as Internet protocol addresses assigned in accordance with international standards and domain names under the country code of the Republic of Korea.”