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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Cem Yilmaz –v. Roman Club International
Case No. D2000-1541
1. The Parties
Complainant: Cem Yilmaz
Salih Rustu Bey Sok.
Bogazici Apt. No: 14 D 12
Respondent: Roman Club International
P.O. Box 1953 Bgs
New York Ny 10274
2. The Domain Name and Registrar
Domain Name: "cemyilmaz.com"
3. Procedural History
The original Complaint was received by WIPO by email on November 9, 2000, and in hard copy form on November 10, 2000. WIPO issued a Complaint Deficiency Notification on December 12, 2000, and the Amended Complaint ("the Complaint") was received on December 15, 2000, by email and in hard copy form on December 19, 2000. WIPO has verified that the Complaint satisfies the formal requirements of the Policy, the Rules and the Supplemental Rules and that payment was properly made. The Administrative Panel ("the Panel") is satisfied that this is the case.
The Complaint was properly notified in accordance with the Rules, paragraph 2(a). The Registrar has confirmed that "cemyilmaz.com" ("the Domain Name") was registered through Registrars.com and that Roman Club International ("the Respondent") is the current registrant. The Registrar has further confirmed that the Policy is applicable to the Domain Name.
On December 20, 2000, WIPO notified the Respondent of the Complaint in the usual manner and informed the Respondent inter alia that the last day for sending its Response to the Complainant and to WIPO was January 9, 2001. On January 9, 2001 a Response was received by WIPO by email and on January 16, 2001 in hard copy form.
The Panel was properly constituted. The undersigned Panelist submitted a Statement of Acceptance and Declaration of Impartiality and Independence.
No further submissions were received by WIPO or the Panel, as a consequence of which the date scheduled for the issuance of the Panel’s Decision is February 8, 2001.
4. Factual Background
The Complainant is very well known in Turkey as a stand up comedian, caricaturist and motion picture actor. Press cuttings annexed to the Complaint establish that his fame goes back at least as far as 1997.
In April 1999, the Complainant performed in a show in New York City. On April 15, 1999, the Respondent registered the Domain Name.
At least as early as August 8, 2000, the Domain Name was connected to a website featuring a picture of the Complainant and identifying the website as the official website of the Complainant.
According to the Complaint (and this is not denied by the Respondent) a statement below the photograph on the home page of the website reads (in Turkish) "the official website of Cem Yilmaz will be open on August 30, 2000. Please visit us again. Thank you" and the copyright notice reads "copyright © 1999, CemYlmaz.com. All rights reserved. Please send email to email@example.com for further information and your comments".
The Complaint was launched in December 2000.
On August 17, 2000, the Complainant filed a trade/service mark application with the Turkish Patent Office covering 27 categories of goods and services.
5. Parties’ Contentions
The Complainant contends as follows:
· He is extremely well known as a performer in the entertainment field in Turkey.
· While he has at present no registered rights in his name, he claims common law rights.
· The Respondent has no right or legitimate interest in respect of the Domain Name. The Complainant has not licensed or otherwise permitted the Respondent to use his name or to apply for or use any domain name incorporating his name. The Respondent has no relationship with the Complainant. The Complainant’s rights in his name precede the Respondent’s registration of the Domain Name.
· The Respondent is not commonly known by the Domain Name.
· The Respondent’s labelling of the website attached to the Domain Name as "the official website of Cem Yilmaz" is a misrepresentation. The Respondent is misleadingly diverting Internet users and fans of the Complainant to its website.
· The Complainant contends that the Respondent registered and is using the Domain Name primarily for the purpose of selling it to the Complainant.
· In support the Complainant states that a representative of the Respondent visited the Complainant during one of his stand up shows in New York in April 1999. The representative of the Respondent came backstage immediately after the end of the show and offered to construct the official website for the Complainant. The Complainant refused the offer.
· In August 2000, the representative of the Respondent telephoned the Complainant and offered the Domain Name for sale for US$10,000. The Complainant rejected the offer.
· The Complainant asserts that the Respondent has known all along that the Complainant intended to have an official website and registered the Domain Name with a view to compelling the Complainant to pay for it.
· By using the Domain Name the Respondent has intentionally attempted to attract for commercial gain, Internet users to its website. In so doing the Respondent has unfairly tried to take advantage of the fame of the Complainant.
The Respondent contends as follows:
· As an individual in Turkey according to Turkish law the Complainant is not permitted to file a trade mark and service mark application.
· In Turkey the sole authorized body of the Internet Domain Name Registry System entitles every Turkish citizen who lives in Turkey and every organization that is established in Turkey to apply for a country specific domain name. The Respondent points out that the Complainant’s name is available to him as a domain name in the Turkish country domain.
· The Respondent identifies herself as female and describes herself as "a well known and respected incubator supporting various legitimate projects without any prospective profit margin in the goal of widespreading the bona fide usage of Internet and well established websites."
· She states that she registered the Domain Name in accordance with the rules and because the Domain Name was available. She says that she registers "innumerous domain names for her own public non-profit service offerings as well as for her clients with whom she has established a legitimate commercial relationship".
· She says that she has established a public non-commercial web address and website under the Domain Name "for the aim of bringing individuals from different cultures, locations and backgrounds and providing them a ground to exchange ideas, comments, memories and any other community events."
· She goes on to say that she "has established no outside link, reference, implication of any kind to any third party including but not limited to herself and the Complainant" (sic).
· The Respondent claims that the IP address and the website are public property.
· The Respondent states that she has no record of the incident described in the Complaint concerning the approach made to the Complainant in New York City in 1999. She says that all her dealings, business proposals etc would be in writing on company letterhead and accompanied by business cards. She puts the Complainant to proof of this allegation.
· The Respondent states that she "has no knowledge of the Complainant’s individuality, his life, his work, his friends, his emotions, his family, his past, his intentions and his existing or future plans". She objects to the allegations that she plans to gain any financial benefit from the Complainant. She says that she provides "more non-profit, bona fide information and benefit to the community than any individual".
6. Discussion and Findings
According to paragraph 4(a) of the Policy, the Complainant must prove that:
(i) The Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interest in respect of the Domain Name; and
(iii) The Domain Name has been registered and is being used in bad faith.
Identical or confusing similarity
The Panel is satisfied that the Complainant trades under his name Cem Yilmaz and is a very well known professional entertainer in Turkey and to a lesser extent in Turkish communities elsewhere. The Domain Name is the Complainant’s name with the addition of the "generic .com" suffix.
The Panel finds that the Domain Name is identical to a trade mark/service mark in which the Complainant has unregistered rights.
Rights or legitimate interest of the Respondent
Paragraph 4(c) of the Policy sets out a non-exhaustive list of circumstances which if found by the Panel to be present, demonstrate the Respondent’s rights or legitimate interest in respect of the Domain Name.
On the face of it and on the face of the home page of the website to which the Domain Name is connected, it is clear that the Domain Name is intended to identify the Complainant. It is the Complainant’s name. The Respondent has come forward with no explanation at all as to why she selected the Complainant’s name for the Domain Name. The Panel has nothing before it to indicate in what sense the Respondent could be said to have any rights or legitimate interest in respect of the Domain Name.
In the result, the Panel finds that the Respondent has no rights or legitimate interest in respect of the Domain Name.
The Panel has found the Response difficult to follow. The Panel is unsure whether this is a problem of language or whether the Respondent is being deliberately obtuse.
The Respondent denies (or at any rate states she has no record of) the approach made to the Complainant in April 1999, but does not deny the offer for sale made in August 2000. The Panel is uncertain as to whether this was deliberate or an oversight.
The Panel does not attempt to resolve these uncertainties, although if the matters alleged by the Complainant are true, they would constitute clear evidence of bad faith registration and use of the Domain Name.
Nonetheless, the fact of the matter is that the Respondent registered the name of a famous professional entertainer, knowing it to be the name of that entertainer and connected it to a website falsely claiming it to be the official website of that entertainer.
In the view of the Panel, that behavior constitutes bad faith registration and use of the Domain Name and the Panel so holds.
In the result, the Panel having found that the Domain Name is identical to a trade mark/service mark in which the Complainant has unregistered rights and that the Respondent has no rights or legitimate interests in respect of the Domain Name and that the Domain Name has been registered in bad faith and is being used in bad faith, the Complaint succeeds.
The Panel directs that the Domain Name, "cemyilmaz.com", be transferred to the Complainant.
Dated: February 8, 2001