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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
KOPAŞ Kozmetik Pazarlama Ve Sanayii A.Ş. v. Mete Aydin
Case No. D2002-0399
1. The Parties
The Complainant is KOPAŞ Kozmetik Pazarlama ve Sanayii A.Ş, a corporation organised under the laws of Turkey, having its principal place of business in Istanbul, Turkey and represented by Ömer Yigit Aykan, ("Complainant").
The Respondent is Mete Aydin, of Kaptanarif Sk.Akyildiz Ap.No:36/3A Suadiye, Istanbul Turkey. ("Respondents")
2. The Domain Name and Registrar
The domain name at issue is <alixavien.com>.
The Registrar is Register.com Inc., 575 Eighth Avenue 11th Floor, New York, 10018 United States of America, ("the Registrar").
3. Procedural History
The Complaint was submitted electronically to the WIPO Arbitration and Mediation Center ("the Center") on April 30, 2002. The hardcopy under cover of a letter of the same date was received on May 2, 2002, ("the Complaint"). An Acknowledgement of Receipt was sent by the Center to Complainant dated May 1, 2002.
On May 1, 2002, the Center sent per e-mail a Request for Registrar verification. On May 8, 2002, verification from the Registrar was received. In this communication the Registrar stated that Respondent is the current Registrant of the domain name at issue, although the WHOIS database shows that Güntel Ltd, a corporation under the laws of Bulgaria, is the current registrant of the domain name at issue. At the request of the Center the Registrar sent the contact details of Respondent to the Center, explaining that the Registrar’s customers can change WHOIS contact information themselves. Although Güntel Ltd. is the current Registrant according to the WHOIS contact details, the Registrar still considers Respondent the Registrant of the disputed domain, since the required Registrant transfer forms have not been filled out. On the basis of the information given by the Registrar the Panel does not consider Güntel Ltd, but Respondent as the Respondent in this dispute.
On May 15, 2002, the Center sent a Notification of Complaint and Commencement of Administrative Proceedings to the parties.
On June 5, 2002, the Center sent a Notification of Respondent Default to Respondent.
On June 19, 2002, the Center sent a Notification of Appointment of Administrative Panel and Projected Decision Date by e-mail to the parties, in which Wolter Wefers Bettink was appointed as the Sole Panelist.
4. Applicable Rules
Paragraph 4 (a) of the Policy directs that Complainant must prove each of the following:
(i) the domain name at issue is identical or confusingly similar to Complainant's trademark, 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.
Paragraph 4 (b) of the Policy sets out, by way of example, four circumstances, each of which, if proven, shall be evidence of the registration and use of the domain name in bad faith for the purpose of Paragraph 4 (a) (iii) above.
Paragraph 4 (c) of the Policy sets out, by way of example, three circumstances, each of which, if proven by Respondent, shall demonstrate Respondent’s rights or legitimate interest to the domain name for the purpose of Paragraph 4 (a) (ii) above.
5. Factual Background
Complainant is the owner of the trademark Alix Avien, registered in among other countries Turkey, France, Russia, Romania and Azerbaijan. (see e.g. Registration no. 168177 in Turkey, registered April 1, 1996, no. 96622564 in France, registered October 4, 1996, no. 172758 in Russia, registered October 30, 1997, no. 35545 in Romania, registered March 31, 1998, and no. 2000-0511 in Azerbaijan, registered January 27, 1998, all for perfume and cosmetics.
The domain name <alixavien.com> was originally registered by Complainant. After Complainant’s Internet Service Provider (ISP) failed to renew the registration of the domain name at issue of the Complainant, Respondent registered the domain name <alixavien.com> on November 16, 2001.
6. Parties’ contentions
The Complainant is one of the leading cosmetics manufacturers in Turkey and has produced cosmetics and personal care products for domestic and export markets for more than 25 years. Alix Avien is one of the original brands Complainant created and developed. Alix Avien is a registered trademark of Complainant in among other countries Turkey, France, Russia, Romania and Azerbaijan.
In 1999 Complainant registered the domain name <alixavien.com>.
Due to negligence of Complainant’s ISP the registration of <alixavien.com> expired –unknown to Complainant- on May 12, 2001. Respondent (Mete Aydın, the owner of Metay Parfumery) used this opportunity to register the domain name in question on November 16, 2001.
Respondent set up a website that linked to pornographic and sex related websites and put up an announcement at the site that the domain name <alixavien.com> was for sale.
In an e-mail dated December 27, 2001, Respondent offered the domain name at issue for sale to Complainant for a consideration of US $ 200,000.
In the light of the mentioned events, Complainant filed an application with the Istanbul Civil Court of Intellectual and Industrial Rights on January 29, 2002, with the request of having aforesaid acts established to be causing unfair competition and infringement of trade mark rights, having unfair competition banned and the status resulting from unfair competition eliminated.
On April 11, 2002, the Istanbul Court delivered a precautionary injunction requiring all Internet Service Providers throughout Turkey to cease broadcasting the website under <alixavien.com>.
During the proceedings at the Istanbul Civil Court Respondent transferred the domain name at issue to a company named Güntel Ltd., based in Bulgaria.
After this "transfer" the site under <alixavien.com> still provided links to pornographic images. According to Complainant, the transfer of <alixavien.com> from Respondent to Güntel Ltd. is a simulated (fictitious) act intended to mislead judicial authorities and committed to get rid of legal liabilities.
Complainant tried to contact Güntel Ltd., but the contact details provided in the WHOIS database were apparently not correct. Instead they contacted Respondent. Respondent confirmed that there was a link between him and the owners of Güntel Ltd, and that he could mediate between Complainant and Güntel Ltd to transfer the domain name at issue to Complainant. Again he offered the domain name <alixavien.com> for sale for US $200,000.
Respondent has no rights or legitimate interest in the domain name at issue. Respondent has registered and uses the domain name at issue in bad faith making unjust profits of the domain name and preventing Complainant from reflecting his trademark Alix Avien in a corresponding domain name and trying to disrupt the business and the prestige of the Complainant.
As Respondent has not submitted a Response, Complainant’s contentions are not contested.
7. Due Process
Where, as in this case, a Respondent does not submit a Response, the rules of due process require the Panel to verify, to the extent possible, that Respondent is aware of the present proceedings. The Panel is satisfied, on the basis of the file documentation, that this is the case.
A hard copy of the Complaint was sent by the Center to Respondent by courier and by e-mail to the e-mail address of Respondent. The Center also send a hard copy of the Complaint by courier and by e-mail to Güntel Ltd.
The Panel therefore assumes that Respondent has received these documents, but has chosen not to respond.
Complainant must provide evidence of all elements of Paragraph 4(a) of the Policy. As the decision to transfer or cancel a domain name may have serious consequences for the domain name holder, the evidence should be sufficient in all respects to support such a decision. The absence of a Response from Respondent, as in this case, does not discharge the Panel from its duty to establish that the evidence is sufficient.
a. Trademark rights
Complainant has provided sufficient evidence of its rights to the trademark Alix Avien in various countries.
b. Identical or confusingly similar
The domain name <alixavien.com> is identical to Complainant’s trademark Alix Avien. The fact that there is a space between Alix and Avien in the trademark does not alter this, since this space cannot be reflected in a registered domain name. The suffix ".com" indicates that the domain name is registered in the .com gTLD.
c. Rights or legitimate interests
Under paragraph 4 (c) of the Policy, Respondent may demonstrate that it has a right or legitimate interest to a domain name for the purpose of Article 4 (a) (ii), inter alia, by providing evidence of any of the following circumstances:
"(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate non commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue."
The domain name <alixavien.com> has apparently only been used by Respondent to provide links to pornographic (and sex related) images or websites. In addition, Respondent has offered the domain name at issue for sale to Complainant for an amount (USD 200,000) significantly in excess of the out-of-pocket expenses for registration. This use does not create a right or legitimate interest in the domain name at issue. Any interest in acquiring income by renting or selling a domain name is not legitimate when a domain name is identical or confusingly similar to a trademark, and the registrant intends to sell it to the trademark holder, as is the case here. Providing links to other web sites or pornographic images does not constitute a legitimate interest as the domain name at issue is identical to Complainant’s trade mark Alix Avien and, in view of their nature, tarnish the trademark at issue.
In the light of the foregoing, the Panel finds that Respondent has no rights or legitimate interest in the domain name at issue
d. Bad faith
Paragraph 4(b)(i) of the UDRP states that circumstances indicating that a Respondent has registered a domain name primarily for the purpose of selling or renting it to a Complainant for a monetary consideration in excess of Respondent’s out-of-pocket expenses directly related to the domain names shall be evidence of registration and use of a domain name in bad faith.
The Panel finds that these circumstances are present here. Respondent has offered the domain name at issue for sale for USD 200,000. This asking price is significantly in excess of Respondent’s out-of-pocket registration expenses.
The linking of the domain name at issue to pornographic images illustrates conclusively Respondent’s disreputable intentions with the domain name. Respondent has apparently sought to blackmail Complainant into buying the domain name by providing links to pornographic images. The fact that Respondent has (tried to) transfer the domain name at issue to Güntel Ltd. after Complainant filed an application at the Istanbul Civil Court only confirms the bad faith of Respondent.
The Panel, therefore, concludes that there is sufficient evidence that the registration and the use of the domain name at issue has been made in bad faith by Respondent.
On the basis of the foregoing, the Panel decides that Complainant has provided the required evidence for the requested order transferring the domain name from Respondent to Complainant. Accordingly, pursuant to Paragraph 4 (i) of the Policy, the Panel orders that the registration of the domain name <alixavien.com> be transferred to Complainant.
Wolter Wefers Bettink
Dated: July 1, 2002