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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Vestel Elektronik Sanayi ve Ticaret AS v. Mehmet Kahveci
Case No. D2000-1244
1. The Parties
1.1 The Complainant is Vestel Elektronik Sanayi ve Ticaret AS, a corporation operating under the laws of Turkey, with a principal place of business at Organize Sanayi Bolgesi 45030 Manisa, Turkey.
1.2 The Respondent is Dr. Mehmet Kahveci, an individual with an address of 177B State Street, McKinley Building, Boston, MA 02109, U.S.A.
2. The Domain Name and Registrar
2.1 The disputed domain name is "vestel.com".
2.2 The registrar of the disputed domain name is Network Solutions with a business address in Herndon, Virginia, U.S.A.
3. Procedural History
3.1 Complainant initiated the proceeding by filing a complaint, received by the WIPO Arbitration and Mediation Center ("WIPO") on September 21, 2000.
3.2 On September 29, 2000, all formal requirements for the establishment of the complaint were checked by WIPO and found to be in compliance with the ICANN Uniform Domain Name Dispute Resolution Policy (the "Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for Domain Name Dispute Resolution Policy (the "Supplemental Rules"). The Panel accepts the WIPO checklist as evidence of proper compliance with the Policy, Rules, and Supplemental Rules.
3.3 On October 2, 2000, WIPO transmitted notification of the complaint and commencement of the proceedings to Respondent.
3.4 On October 24, 2000, WIPO transmitted notification to Respondent of its default in responding to the complaint.
3.5 On October 31, 2000, WIPO invited the undersigned to serve as panelist in this administrative proceeding, subject to receipt of an executed Statement of Acceptance and Declaration of Impartiality and Independence ("Statement and Declaration"). On October 31, 2000, the undersigned transmitted by facsimile the executed Statement and Declaration to WIPO.
3.6 On November 2, 2000, Complainant and Respondent were notified by WIPO of the appointment of the undersigned sole panelist as the Administrative Panel (the "Panel") in this matter. WIPO notified the Panel that, absent exceptional circumstances it would be required to forward its decision to WIPO by November 16, 2000.
The Panel has not received any further requests from Complainant or Respondent regarding further submissions, waivers or extensions of deadlines, and the Panel has not found it necessary to request any further information from the parties. The proceedings have been conducted in English.
4. Factual Background
4.1 Vestel owns worldwide rights to the VESTEL trademark and service mark. VESTEL is a coined term without meaning in the English or Turkish languages. See Declaration of Batuhan Okur, ¶2.
4.2 Vestel states that it or its subsidiaries own the following registrations for the trademark and service mark Vestel:
VR 1998 03,244
4.3 Complainant states that Respondent is not affiliated with Complainant and that Respondent is not an officer, director, principal, or employee of Complainant.
4.4 The domain name "vestel.com" does not currently resolve to an active website, which the Panel confirmed for itself.
4.5 The Network Solutions' WHOIS database indicates that Respondent registered the domain name "vestel.com" on April 17, 1996.
5. Parties’ Contentions
"The VESTEL Mark is Identical to the Domain Name in Dispute
(a) Complainant uses the VESTEL trademark, with rights dating to 1984.
(b) Respondent has registered the domain name <vestel.com>.
(c) It is clear beyond cavil that the domain name is identical or confusingly similar to the trademark used by Complainant."
"Respondent possesses no rights or legitimate interest in respect of the domain name. Respondent Kahveci is not affiliated with Complainant Vestel. He is not an officer, director, principal, or employee of Vestel. He offers no goods or services under the VESTEL mark. See Okur Decl., ¶ 7. Respondent is a dentist in Boston, MA. See Annex F. Kahveci has no colorable claim to any rights whatsoever in the <vestel.com> domain name."
"Respondent Kahveci registered and used the domain name in bad faith. Respondent Kahveci registered the <vestel.com> domain name primarily for the purpose of selling the domain name registration to Complainant Vestel, the owner of the VESTEL trademark, for valuable consideration far in excess of out-of pocket costs related to the domain name."
"In email communications dated December 6, 1999 to December 23, 1999, and appended at Annex G with an English translation, Respondent offered to sell the <vestel.com> domain name to Complainant Vestel for $200,000."
"Respondent Kahveci registered the <vestel.com> domain name as part of a pattern and practice of barring Vestel and other Turkish companies from reflecting their trademarks in a corresponding domain name. In particular, Respondent has registered the following domain names corresponding to well known and successful Turkish companies: mutlu.com, alarko.com, and ihlas.com."
"None of the company name domains registered by Respondent Kahveci and identified herein resolve to an active Web site. See Annex N for examples. Indeed, Complainant is unaware of any Web site operated by Respondent under any domain name. Respondent, it seems, merely collects domain names, particularly those corresponding to the names of large Turkish companies."
"Respondent Kahveci owns dozens of domain name registrations. A full listing was not available to Complainant Vestel at the time this Complaint was filed. However, in a search using the registrar’s WHOIS utility for "DR.MEHMET KAHVECI", 50 domains were identified, whereupon the search automatically aborted. That search is appended at Annex O."
"The partial list of domain names registered by Respondent and reproduced at Annex O includes many large and well respected Turkish companies, including some of the countries best known transportation, banking, energy, construction, apparel, textile, and trucking companies. These include: uki.com, yapi.com, akpa.com , cebitas.com, cukurova.com, showtv.com, denizcilik.com, iktisat.com, vakif.com, turyat.com, cankurtaran.com, profilo.com, akbank.com, tekel.com, santeks.com, bilkont.com, tarmak.com orsa.com, ulusoy.com, ziraat.com, transturk.com, yasar.com, tupras.com."
"The pattern of Respondent Kahveci’s domain name registration practice suggests more than coincidence in his selection of those domain names. Rather, it suggests a deliberate targeting of companies in his homeland of Turkey, including Complainant, for the purpose of profiting from activities other than maintaining multiple active web sites for providing goods and services in commerce."
"There is no evidence that Respondent Kahveci, before receiving notice of this domain name dispute, made any effort to use, or demonstrable preparations to use, the <vestel.com> domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services."
"There is no evidence that Respondent has been commonly known by the domain name."
"Respondent Kahveci is not making a legitimate non-commercial or fair use of the <vestel.com> domain name as the only use to date has been in the offer to sell the domain name to Complainant Vestel for $200,000."
Respondent did not file a response to the complaint.
6. Discussion and Findings
6.1 The Uniform Domain Name Dispute Resolution Policy (the "Policy"), adopted by the Internet Corporation for Assigned Names and Numbers (ICANN) on August 26, 1999, (with implementing documents approved on October 24, 1999), is addressed to resolving disputes concerning allegations of abusive domain name registration. The Panel will confine itself to making determinations necessary to resolve this administrative proceeding.
6.2 It is essential to dispute resolution proceedings that fundamental due process requirements be met. Such requirements include that a respondent have notice of proceedings that may substantially affect its rights. The Policy, and the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), establish procedures intended to assure that respondents are given adequate notice of proceedings commenced against them, and a reasonable opportunity to respond (see, e.g., paragraph 2(a) of the Rules).
6.3 The case file for this dispute indicates that the Respondent was notified of the complaint via e-mail and that hard copies were sent by post/courier to the address listed in the WHOIS record for vestel.com. The case file also indicates that the e-mail address used had "permanent fatal errors."
6.4 As a result of this situation the Panel conducted its own investigation and found that the Respondent, Mehmet Kahveci, is also the registrant of the domain name hyperlinkweb.com. Mr. Kahveci's contact information and address are different from that listed in the vestel.com WHOIS record. Despite the differences in the contact information, hyperlinkweb.com supports an active web site for Hyperlink International. At this site the address for Hyperlink International is listed as 177 B State Street, Boston, MA 02109. This is the same address listed in the vestel.com WHOIS record.
6.5 Based upon the foregoing, the Panel is satisfied that WIPO took all steps reasonably necessary to notify the Respondent of the filing of the complaint and initiation of these proceedings. The Panel also finds that the failure of the Respondent to furnish a reply is not due to any omission by WIPO.
6.6 Paragraph 4(a) of the Policy sets forth three elements that must be established by a Complainant to merit a finding that a Respondent has engaged in abusive domain name registration, and to obtain relief. These elements are that:
(i) Respondent’s domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) Respondent’s domain name has been registered and is being used in bad faith.
In the administrative proceeding, the complainant must prove that each of these three elements are present.
6.7 Complainant asserts that the domain name "vestel.com" is identical to Complainant's trademark and service mark VESTEL.
6.8 As the Respondent has failed to submit a response to the complaint, the Panel accepts as true all of the allegations of the complaint. See Talk City, Inc. v. Michael Robertson, D2000-0009, February 29, 2000.
6.9 The Panel finds that the "vestel.com" domain name is identical to the trademark and service mark VESTEL, and that the Complainant has established it has rights in the name "VESTEL," pursuant to paragraph 4(a)(i) of the Policy.
6.10 There is no evidence in the record that would indicate that Respondent has any rights or legitimate interests in respect of the domain name "vestel.com." Merely registering the domain name is not sufficient to establish rights or legitimate interests for purposes of paragraph 4(a)(ii) of the Policy. See N.C.P. Marketing Group, Inc. v. Entredomains, D2000-0387, July 5, 2000.
6.11 The Panel finds that the Respondent has no rights or legitimate interests in respect of the domain name "vestel.com," pursuant to paragraph 4(a)(ii) of the Policy.
6.12 Paragraph 4(b) of the Policy lists several factors, without limitation, that if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith. In particular, paragraph 4(b)(i) states:
(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name.
6.13 In light of (1) the Respondent's offer to sell the domain name vestel.com to the Complainant for $200,000.00 and (2) the pattern of Respondent's registration of domain names that correspond to numerous other Turkish companies, the Panel finds that these circumstances indicate that the Respondent registered the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant for valuable consideration in excess of the Respondent's documented out-of-pocket costs directly related to the domain name.
6.14 The Panel finds that the Complainant has established that the Respondent registered and used the domain name "vestel.com" in bad faith.
As the Complainant, Vestel Elektronik Sanayi ve Ticaret AS, has established that the Respondent, Mehmet Kahveci, has engaged in abusive registration of the domain name "vestel.com" within the meaning of paragraph 4(a) of the Policy, the Panel orders that the domain name "vestel.com" be transferred to the Complainant.
R. Eric Gaum
Dated: November 11, 2000