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WIPO Domain Name Decision: D2000-1764
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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Koç Holding A.S. v. MarketWeb A.S.
Case No. D2000-1764
1. The Parties
The Complainant is Koç Holding A.S., a company having its registered office in Istanbul, Turkey.
The Respondent is MarketWeb A.S. which appears to be a company with an address at MLD Sitesi. 477. Sokak No.8, Kardelen Mah. Batikent Ankara, 06370 Turkey.
2. The Domain Name and Registrar
The domain name at issue is "koc.com". The domain name registrar is Network Solutions, Inc.
3. Procedural History
Complainant filed its complaint with the World Intellectual Property Organization Arbitration and Mediation Center (the "Center") which was received in hard copy on December 19, 2000, and by email on December 21, 2000.
On December 22, 2000, the Center transmitted a request for registrar verification to Network Solutions, Inc. in connection with this case.
On December 26, 2000, Network Solutions, Inc. sent via email to the Center a verification Response confirming that the Respondent is the registrant and that the contact for administrative, technical and billing purposes is Engur Pisirici with the same address as the Respondent.
On December 28, 2000, 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 (the "Supplemental Rules").
On December 28, 2000, the Center formally commenced this proceeding and notified Respondent that its Response would be due by January 16, 2001. The notification was sent to the Respondent by courier and email and to the technical contact by email on December 28, 2000, without receipt of any "undeliverable" notice.
On December 28, 2000, the Center located an active web site at "koc.com".
Respondent did not file a Response by the due date. The Center sent a notification of respondent default to the Respondent by courier and email on January 19, 2001.
Complainant elected a single-member Panel. On January 24, 2000, after clearing for potential conflicts, the Center appointed Thomas H. Webster as the Panelist, and set February 7, 2000, as the deadline for issuance of a decision.
Engur Pisiric for the Respondent subsequently filed an undated, informal Response by email with WIPO after the due date. The Panel accepts the Respondent’s submission in this case as part of the record.
On February 2, 2001, in accordance with paragraph 12 of the Rules, the Panelist requested an explanation and additional documents from the Complainant in respect of its trademark registration and granted the Respondent the opportunity to comment on such documents. The Center extended the due date of the decision until February 21, 2001.
The Complainant subsequently submitted the requested documents by email and courier received on February 15, 2001. No additional submissions were made by the Respondent and the Panelist is satisfied to proceed on the basis of the existing record.
4. Factual Background
The following facts are taken from the Complaint and are generally accepted as true in the circumstances of this case.
"the Koç Group, controlled by Koç Holding and the Koç family, is one of the largest industrial and commercial corporations in the world with 13 billion USD combined turnover (Several Fortune 500 rankings). It is also the leading private sector conglomerate in Turkey and operates in 9 different business sectors with over a hundred individual companies."
"The domain name was registered first on 12 August 1997. It was last updated on 18 August 2000 and the record expires on 13 August 2001."
5. Parties Contentions
In respect of the domain name being identical or confusingly similar to a trademark or service in which the Complainant has rights, Complainant alleges that:
"The trademarks and service marks on which the Complaint is based on can be found in Annex 4 and 5. Annex 4 contains trademarks and service marks with "Koç" brand. Annex 5 includes other Koç Group Companies around the "Koç" corporate identity (Signs, Specific symbols and logos). In Turkey and every country where the Koç Group Companies are implemented "Koç Holding" is associated with the word "Koç". "Koç" is a well known trade and service mark in Turkey. "Koç" is the very first incorporation with 75 years of history.
The www.koc.com domain name registrant company MarketWeb has neither legal nor factual relation with the "Koç" name. The www.koc.com web site scores more than 70.000 hits without any content…. This fact proves that people are systematically confused when searching for the Koç Holding website (www.koc.com.tr)."
Complainant contends that the Respondent has no rights or legitimate interests in the domain names and relies on the following elements:
"There is no evidence of MarketWeb’s use of, or demonstrable preparations to use the domain name in connection with a bona fide offering of goods or services…
MarketWeb has not been commonly known by the domain name. Even MarketWeb has no acquired trademark or service mark rights concerning the domain name."
Complainant further alleges that the domain names were registered and used in bad faith by the Respondent based on the following elements:
"MarketWeb has registered the www.koc.com domain name primarily for the purpose of selling it to Koç Holding…As he expressed trough (sic) several phone calls, the registrant’s intention is to sell the domain name."
In its informal Response, the Respondent alleges that the Complainant:
"HA[S] NO TRADEMARKS for KOC or KO(dotted C)…I searched but nothing found in uspto.gov or patent.gov.uk about KOC or KO(dotted C). So KOC and KO(dotted C) are not trademarks in international area.
Also in Turkey there're lots of KO(dotted C) trademarks. And nothing
about them. ONLY TRADEMARK they have, is their logo. AND I havent use
it.. (i use a ram head from a real photo)."
6. Discussion and Findings
The burden for the Complainant under paragraph 4(a) of the Policy is to prove:
(i) That the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) That the Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) That the domain name has been registered and used in bad faith.
A. The Existence and Similarity of the Domain Names and Trademark
It is a basic requirement under the Policy and the Rules that the Complainant demonstrate that it has rights to a trademark or service mark. That is the issue in this case.
Complainant claims that the "trademarks and service marks on which the Complaint is based on can be found in Annex 4 and 5." These annexes list only company and Internet names and provide no listing of trademarks.
In its request of February 2, 2001, the Panelist granted the Complainant an additional seven days to provide an explanation and further documents evidencing that it holds trademarks or service marks for "Koç" or "Koc". Complainant responded "that we are in a trademark registration process. We have not the possibility to send you our trademark registration number because the jurisdictional process continuing with the Turkish Patent Institute." In support of this submission, the Complainant submits a document from the Turkish trademark authority that states "The decision whether your application shall be registered or not shall be notified you after three months' publication period."
Therefore, despite its statements in the Complaint, the Complainant has not proven that it has a trademark.
At the most, the Complainant is therefore relying on its pending trademark application as prima facie evidence of the validity of its trademark and its exclusive right to use the trademark. However, it is not clear what rights, if any, the Complainant will have as a result of its pending trademark application, given the number of other "Koç" trademarks already granted in Turkey and the wording of the document on which the Complainant relies. In this respect, the Panelist refers to Mpower Communications Corp. v. Park Lodge Hotel, Case No. D2000-78 (WIPO, April 3, 2000), ("it is not clear what rights the Complainant has in its pending U.S. trademark application, given the large number of other granted and pending applications.")
The Complainant also relies on Double T Radio Pty Ltd. v. Michael Lopez WIPO Case No. D2000-1600. That case dealt with a common law trademark in Australia. Numerous panelists have accepted that common law trademarks in various common law jurisdiction are sufficient for purposes of the Rules and Policy. However, this case was not based on a claim of a common law trademark nor is there any evidence that such a concept exists in Turkey. Therefore, that decision is not relevant.
Therefore, the Complainant has failed to meet the first requirement of Section 4 (a) of the Policy.
B. Respondent's Rights and Legitimate Interests and C. Bad Faith Registration and Use
Since the Complainant has failed in respect of the first requirement, the Panelist is not required to consider whether it has met the other requirements of Section 4 (a) of the Policy and the Panelist will not do so.
For the foregoing reasons, the Panelist holds that this dispute is not within paragraph 4(a) of the Policy and that the domain name "koc.com" shall remain registered to the Respondent.
Thomas H. Webster
Dated: March 2, 2001