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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Beko (UK) Limited v. N&K Danismanlik A/S
Case No. D2000-0316
1. The Parties
Complainant is Beko (UK) Limited, Beko House, Caxton Way, Watford, Hertfordshire, WD1 8UF, England, and represented by Ian Bartlett, Beck Greener, patent and trademark attorneys, 7 Stone Buildings, Lincoln’s Inn, London, WC2A 3SZ, England, hereinafter the "Complainant".
Respondent is N&K Danismanlik Limited, Gazcilar Caddesi No.4/209, Bursa, Marmara 16220, Turkey, hereinafter the "Respondent".
2. Domain Name and Registrar
The domain name at issue is "beko.com", hereinafter referred to as the "Domain Name". The registrar is Network Solutions, Inc.
3. Procedural History
The WIPO Arbitration and Mediation Center (the Center) received the Complainant’s complaint on April 20, 2000, (electronic version) and April 26, 2000, (hard copy). The Center verified that the complaint satisfies the formal requirements of the ICANN Uniform Domain Name Dispute Resolution Policy (the Policy), the Rules for Uniform Domain Name Dispute Resolution Policy (the Rules), and the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the Supplemental Rules). Complainant made the required payment to the Center. The formal date of the commencement of this administrative proceeding is May 8, 2000.
On May 5, 2000, the Center transmitted via email to Network Solutions Inc. a request for registrar verification in connection with this case. On the same day, Network Solutions Inc. transmitted via email to the Center, Network Solutions’ Verification Response, confirming that the Respondent is the registrant, and that Nalan Yagiz is the administrative, technical, zone and billing contact.
Having verified that the complaint satisfied the formal requirements of the Policy and the Rules, the Center transmitted on May 8, 2000, to Respondent and to Nalan Yagiz, Notification of Complaint and Commencement of the Administrative Proceeding, via post/courier, facsimile and e-mail, in accordance with the following contact details:
N&K Danismanlik A/S
Gazcilar Caddesi N°4/209
Bursa, Marmara 16220
N&K Danismanlik Limited
Gazcilar Caddesi Petek Bozkaya ys Merkezi N° 4/A9
The Center advised that the Response was due by May 27, 2000. However, no Response was sent. Accordingly, the Center issued a Notification of Respondent Default on May 29, 2000.
On May 29, 2000, in view of the Complainant’s designation of a single panelist, the Center invited M. Geert Glas to serve as a panelist.
Having received on May 30, 2000, M. Geert Glas' Statement of Acceptance and Declaration of Impartiality and Independence, the Center transmitted to the parties a Notification of Appointment of Administrative Panel and Projected Decision Date, in which M. Geert Glas was formally appointed as the Sole Panelist. The Sole Panelist finds that the Administrative Panel was properly constituted and appointed in accordance with the Rules and Supplemental Rules.
The Administrative Panel shall issue its Decision based on the complaint, the evidence presented, the Policy, the Rules and the Supplemental Rules.
4. Factual Background
The complaint is based upon several UK and Turkish trademark registrations for "Beko", copies of which appear in Annexes 4 and 5 of the complaint. A list of all "Beko" trademarks registered by complainant is also enclosed under Annex 6 of the complaint.
These trademarks include, among others:
Beko (UK) No. 1457465 March 5, 1991
According to Complainant, "Beko" is also his company name and tradename.
It appears from an E-mail sent on May 5, 2000, by Network Solutions Inc. to the Center, that Respondent is the registrant of the Domain Name. Respondent registered the Domain Name on January 1, 1998. According to Network Solution’s database, Respondent registered also other domain names (ozdilek.com, registered on the same day as the Domain Name, and kocbank.com, registered on December 31, 1997, one day before the Domain Name) which are not at issue here. It is however interesting to notice that for the three domain names registered, Respondent always provided a different address (one in Turkey and one in Nepal). According to Complainant, "Kocbank" is also a trademark of a company affiliated with Complainant (Annex 16).
In February 1998, Complainant became aware of Respondent’s registration of the Domain Name, when an email was sent to Complainant by Nalan Yagiz on February 5, 1998. The author of the email stated that he had registered the Domain Name, that the name "Beko" belonged to Complainant but that he was willing to negotiate a transfer.
Complainant’s attorneys tried to obtain the transfer of the Domain Name, without success.
Therefore, Complainant initiated a proceeding before the High Court of the United Kingdom. In response, Nalan Yagiz wrote a Bill of Response, stating in substance that he did not know Respondent and that he had nothing to do with this whole matter.
There is no relation between Respondent and Complainant and Respondent is not a licensee of Complainant, nor has he otherwise obtained an authorization to use Complainant’s marks.
The Domain Name is not connected to any web site (Annex 9).
5. Parties Contentions
Complainant contends that Respondent has registered the Domain Name which is identical to Complainant's "Beko" trademarks, that Respondent has no rights or legitimate interests in respect of the Domain Name and that the Domain Name has been registered and is being used in bad faith.
Consequently, Complainant requires the transfer of the Domain Name registration.
No response has been submitted.
However, in the framework of a lawsuit initiated by Complainant in England, Nalan Yagiz (the administrative, technical, zone and billing contact mentioned in the Domain Name registration) submitted a Bill of Response (Annex 12 of the complaint) stating that he did not know of Respondent, that what was indicated as being Respondent’s address was in fact his own address, that Respondent had never been established at this address, that he did not register the Domain Name and that he was ready to help Complainant to recuperate the Domain Name, if necessary. This statement seems at odds with the above mentioned e-mail sent by Nalan Yagiz to Complainant on February 5, 1998.
6. Discussion and Findings
Paragraph 15(a) of the Rules instructs the Administrative Panel as to the principles the Administrative Panel is to use in determining the dispute: "A Panel shall 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."
Applied to this case, Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:
(1) that the Domain Name registered by the Respondent is identical to the trademark in which the Complainant has right; and,
(2) that the Respondent has no legitimate interests in respect of the Domain Name; and,
(3) that the Domain Name has been registered and used in bad faith.
The Domain Name is "beko.com".
"Beko" is a registered trademark of the Complainant.
In view of the above, the Administrative Panel finds that the Domain Name is identical to the trademark "Beko" of the Complainant.
b. Rights or Legitimate Interests
Complainant has not licensed or otherwise permitted Respondent to use any of its trademarks or to apply for any domain name incorporating any of those marks. In addition to that, as pointed out by Complainant, it appears that Respondent has not registered nor used the name "Beko" as a trademark, nor has it ever been known by this name.
By not submitting a Response, Respondent has failed to invoke any circumstance which could demonstrate, pursuant to paragraph 4c of the Policy, any rights or legitimate interests in the Domain Name.
The Administrative Panel therefore finds that Respondent has no right or legitimate interest in the Domain Name.
c. Registration and Use in Bad Faith
Several facts have to be taken into consideration when assessing the absence/presence of bad faith in this matter:
1. When registering the Domain Name, Respondent knowingly and purposefully chose a name which is identical and limited to the trademark, trade name and commercial name of Complainant. This is evidenced by the email received by Complainant on February 5, 1998, (Annex 8) from Nalan Yagiz (email@example.com) "…your domain name Beko.com has been registered by ourselves."
2. From the same email, it clearly appears that Respondent’s purpose was to register the Domain Name in order to subsequently sell it to Complainant. Indeed, the email states that: "Since you cannot advertise on the Internet without your domain name, you first have to register your domain name. (…) We observe your companies activities in the information technology field. (…) We hope that upon your request we can discuss to transfer your domain name to your company…".
3. Respondent also registered other domain names of which at least one consists of a trademark owned by a company affiliated with Complainant.
4. Respondent did not file any Response,
5. Respondent mentioned a different address for each domain name registration and seems not to be existing at least at the address mentioned for the Domain Name (Annex 12 of the complaint; Bill of Response of Nalan Yagiz).
6. Respondent does not make any demonstrable use of the Domain Name (Annex 9).
In consideration of the facts above stated, the Administrative Panel finds that circumstances are present indicating that Respondent has registered the Domain Name primarily for the purpose of selling, or otherwise transferring it to Complainant and has registered the Domain Name in order to prevent Complainant from reflecting his mark in a corresponding domain name. Moreover, Respondent has engaged in a pattern of such conduct.
In conclusion and in view of the above, the Administrative Panel finds that Respondent has registered and has been using the Domain Name in bad faith.
In light of the foregoing, the Administrative Panel decides that the Domain Name "beko.com" registered by Respondent is identical to the trademark of Complainant, that the Respondent has no right or legitimate interest in respect of the Domain Name, and that the Respondent’s Domain Name has been registered and is being used in bad faith.
Accordingly, pursuant to Paragraph 4, i of the Policy, the Administrative Panel requires that the registration of the Domain Name "beko.com" be transferred to Complainant.
Dated: June 30, 2000