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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Besiktas Jimnastik Kulubu Dernegi v. Mehmet Tolga Avcioglu
Case No. D2003-0035
1. The Parties
1.1 The Complainant is Besiktas Jimnastik Kulubu Dernegi, of Istanbul, Turkey, represented by Ahmet Basalan, Basalan Patent & Trade Mark Industrial Property Services Consultancy Limited Company, of Istanbul, Turkey.
1.2 The Respondent is Mehmet Tolga Avcioglu, of Florida, United States of America. The Respondent is representing himself/itself (see below).
2. The Domain Name and Registrar
2.1 The disputed domain name is <besiktas.com> (the "Domain Name") which is registered with Network Solutions Inc (the "Registrar").
3. Procedural History
3.1 The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on January 17, 2003. On January 17, 2003, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On January 22, 2003, Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the 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 Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules").
3.2 In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on January 23, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was February 12, 2003. The Response was filed with the Center on February 7, 2003.
3.3 The Center appointed Nick Gardner as the sole panelist in this matter on February 24, 2003. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. A Decision is due to be provided by March 10, 2003.
4. Factual Background
4.1 It is convenient to identify at this stage matters which are not in dispute.
4.2 The Complainant is a sporting association organised in Istanbul. It carries out activities in a number of sporting fields and, in particular, plays football as the "Besiktas" football team.
4.3 It is common ground between the Complainant and the Respondent that Besiktas is a football team of worldwide renown which plays football not only in Turkey but also abroad. Its activities date back to 1903, but with effect from the 1950s, it has been participating in international football with considerable success. It is not necessary for the panel to go into the further (very extensive) evidence filed in this regard as it is accepted by the Respondent that Besiktas is a world-renowned football team.
4.4 It is not immediately clear to the Panel whether the Respondent is an individual or some form of association of individuals. The Response appears to be drafted on the basis that the latter is the case – for example the Response states "we are a group of individuals scattered around the world who are fans of Besiktas Jimnastik Kulubu". The Panel will proceed on this basis, although the analysis below would remain applicable if the Respondent were a single individual.
4.5 The Domain Name is used by the Respondent as an address for a web site. The web site is devoted to the activities of the Besiktas football team. The extent and nature of this use is discussed further below.
5. Parties’ Contentions
5.1 The Complaint is based upon and uses the model form provided by the Center. As filed, the Complaint retains the standard guidance notes contained within the model form to which the Complainant had added various material. Accordingly, the Complaint as filed follows the structure of the Rules. Set out below are the substance of the complaints made by the Complainant in this regard.
5.2 So far as Rule 4a(i) is concerned, the Complainant asserts that the Domain Name is identical to trade marks in which it has rights. It identifies a number of trade marks in this regard including registered Turkish trade marks for the word "Besiktas". Since this is admitted by the Respondent (see below) it is not necessary for the Panel to consider the detailed submissions made by the Complainant further.
5.3 So far as Rule 4a(ii) is concerned, namely the requirement to demonstrate that the Respondent has "no rights or legitimate interests in respect of the Domain Name" no submissions have been made at all by the Complainant. The relative part of the Complaint simply sets out the text of the Center’s guidance notes. This is a serious omission in the Complaint and is at least arguably fatal to the Complaint succeeding. The Panel has, however, proceeded on the basis that the Complainant’s case in this regard might be found elsewhere in the Complaint and has continued to review the Complaint on this basis.
5.4 So far as Rule 4a(iii) of the Policy is concerned (namely that the Domain Name was registered in and is being used in bad faith), the Complainant’s case appears to be as follows. It alleges that where a name is well known such that it will create traffic for a website, either because it corresponds to an established trade mark in the real world or because it will arouse the internet users’ curiosity, that name is valuable. It accordingly asserts that <besiktas.com> is a very valuable domain name and there are many of millions of fans of the Besiktas football team which follow every development concerning the club. The Complainant further asserts that the Domain Name "deceives the public and creates the impression that it is the official website of the club". It asserts that thereby the Respondent attracts traffic to the website and gains "unfair gains". It accordingly alleges that the Respondent is intentionally attempting to attract for commercial gain internet users to the Respondent’s website. It points out that according to a counter on the website in excess of 4 million people have visited the website located at the Domain Name and that this indicates bad faith.
5.5 The Respondent’s case is straightforward. They say that the web pages located at the Domain Name are a fan site dedicated to the Besiktas football club and which have been provided "for the purpose of educating the world about Besiktas and allowing Besiktas fans around the world a medium to meet each other and follow news about Besiktas since 1995". They go on to say that operating the site costs approximately US$2,000 a month and numerous man-hours and "we never made any monetary gain from these sites and never imagined doing so".
5.6 The Respondent goes on to say that the Besiktas website was regarded for a long time as a "semi official" site but when the Complainant was launching its own official site the Respondent was then contacted with a request to provide to the Complainant a domain name. The Respondent says that at that time an offer was made to turn over "besiktas.com" to the Complainant but this offer was declined by the Complainant because Besiktas is apparently "the name of a local municipality in the province of Istanbul" and the Complainant at that time felt there was some doubt as to whether they should use such a name. Instead the Respondent says that the Complainant requested an alternative name "besiktasjk.com" which was also owned by the Respondent. The Respondent says this domain name was subsequently transferred by the Respondent to the Complainant without any demand for payment or any other form of compensation (not even the fees for the domain name).
5.7 The Respondent accepts that Besiktas is a well known football team and that the Domain Name is identical or confusingly similar to a trade mark in which the Complainant has rights. The Respondent points out that there may be some issues with regard to the geographical significance of the name and particular rules under Turkish law relating to such names but goes on to state that "as the supporters of Besiktas Jimnastik Kulubu" they agree "that Besiktas is a world renowned name and will not contest the arguments made by the Complainant in this part of the Complaint".
5.8 The Respondent points out that the Complainant has failed to address the issue as to whether or not the Respondent has any rights or legitimate interests in respect of the Domain Name (see paragraph 5.4 above). They go on to describe in detail the amount of time and effort and money which has been spent to develop the sites and in effect say that as genuine fans they have a legitimate interest in developing such a site.
5.9 The Respondent sets out in some detail the activities that have been carried out developing the site and the number of people who have been involved. They say that "almost every Besiktas fan in the world knows who we are and what we do". The Respondent points out that the web pages found at the Domain Name all contain reference to the fact that the pages are not official pages and a link to the official site located at "www.besiktasjk.com" is available at the bottom of every page.
5.10 The Respondent goes on to say that they do not believe that the Complainant’s arguments about bad faith constitute any evidence of bad faith at all. They simply amount to an argument that the name is well known and that a large number of people have visited the Respondent’s site, both of which they accept. They say "on the contrary, we feel that those exact points show our dedication and success over the years to what we do and the appreciation we receive from the Besiktas fans around the world". They go on to say "we never intended to rent, sell or transfer the Domain Name in question to anybody for any amount of valuable consideration. We have been using the Domain Name for our purposes and spending considerable amounts of time and money for the success of our cause. Monetary or any other form of gain from the Domain Name or even our websites never crossed our minds. We could never imagine disrupting the Complainant’s business as all our efforts are for the success of the Complainant. We would never want to compete with the Complainant; we only hope to compliment the Complainant. If our efforts are considered bad faith, given the sacrifices we had to make for our cause, we might as well not do what we do at all. However we feel that the Besiktas fans around the World would not agree with the statements of the Complainant and would rather see us continue to do what we do. Hence we shall".
6. Discussion and Findings
6.1 The Panel has reviewed the Complaint and the documents annexed to the Complaint. In the light of this material, the Panel finds as set out below.
6.2 The Complaint in these proceedings is unsatisfactory. Whilst much evidence is provided as to the nature and activities of the Besiktas football team (a matter which as it transpires is not in dispute) virtually no evidence is provided about the activities of the Respondent, or the website that is found at the Domain Name.
6.3 Indeed it is difficult to discern from the Complaint exactly what the activities of the Respondent (if any) were. It is only when the Response is studied that it becomes apparent that this case is an issue about a "fan" site which follows and supports the Besiktas football team.
6.4 The Complainant has filed no evidence at all about the web site located at the Domain Name. No copies of pages from the site are provided and no information is given as to what those pages comprise. The Complainant simply asserts that these pages will be mistaken for the official website of the football team and that the Respondent is thereby attempting to attract for commercial gain internet users to the website by creating a likelihood of confusion.
6.5 The Respondent in essence denies any intention to derive commercial gain, saying that the site is operated as a genuine fan site and costs money, rather than makes money. The Respondent also says that there is no likelihood of confusion given that the pages in question all contain a disclaimer. Although the Respondent has provided further information in the Response as to the nature and content of the pages, no evidence in the form of copies of the pages or other such material has been provided. The Response does, however, assert that "just visiting our site at "www.besiktas.com" and browsing through our web pages, statistical information … should be evidence enough that we have legitimate interests in respect of the Domain Name <besiktas.com>.
6.6 As a general rule the Panel believes it is incumbent upon a Complainant to file proper evidence to support its Complaint including copies of relevant web pages and other relevant material the Complainant wishes to rely upon. It is not the function of the Panel to seek to visit any website located at the Domain Name and discern for itself what complaint the Complainant may be seeking to make in this regard. Any such practice gives rise to a number of difficulties including the obvious possibility that the contents of any such web page may have changed or that the web pages may be in a language which the Panel is not familiar with.
6.7 In the circumstances of this case, however, given the Complainant’s failure to provide any information in this regard and given the Respondent’s invitation to visit the web pages concerned, the Panel has reviewed (on March 3, 2003) the web pages located at the Domain Name.
6.8 Perhaps unsurprisingly the majority of the pages are in Turkish (and not understandable by the Panel). There is however a section of the website in English which the Panel has reviewed.
6.9 The very clear impression gained by the Panel on reviewing the overall nature of the site, including those sections in English, is that the website located at the Domain Name appears to be a genuine fan site containing very extensive information and history about the Besiktas football club.
6.10 A number of disclaimers and other such information indicating that the site was not the official site of the Besiktas football club appeared to be present, although it was unclear to the Panel whether such disclaimers were present on every single page.
6.11 In all the circumstances the Panel is not satisfied that the Complainant has established that the original registration of the Domain Name was in bad faith. On the evidence before the Panel it appears to be a bona fide registration of a name intended to operate as a genuine fan site by an individual or individuals supporting the football club.
6.12 The use of the Domain Name is clearly directed at attracting internet users to the website and such attraction will arise by virtue of the correspondence between the Domain Name and the Complainant’s trade mark. The Respondent does not dispute this and indeed this is almost inevitable in cases involving a "fan site". On the evidence before the Panel, the Panel is not however satisfied that such use has been made for commercial gain. The Complainant has not filed any evidence indicating how the Respondent is making a commercial gain out of this activity. As indicated above, the Respondent’s evidence is to the contrary in that the Respondent claims that their activities cost both time and money.
6.13 In addition, it is not clear to the Panel that even if the site at the Domain Name were being operated for gain that any likelihood of confusion exists, given the Respondent’s evidence to the effect that appropriate disclaimers are contained within the site.
6.14 Accordingly the Panel concludes that the Complainant has failed to establish that the Respondent has no legitimate interests in respect of the Domain Name or that it was registered and is being used in bad faith. The Panel’s view in this regard is reinforced by the failure of the Complaint itself to identify why it is alleged that the Respondent has no legitimate interests in respect of the Domain Name.
7.1 In the light of the above findings, the Panel's decision is as set out below.
7.2 The Domain Name is identical or confusingly similar to the trade mark in which the Complainant has rights within the meaning of paragraph 4(a)(i) of the Policy.
7.3 The Complainant has not established that the Respondent has no rights or legitimate interests in respect of the Domain Name within the meaning of paragraph 4(a)(ii) of the Policy.
7.4 The Complainant has not established that the Domain Name has been registered and is being used in bad faith within the meaning of paragraph 4(a)(iii) of the Policy.
7.5 Accordingly, the Panel declines to uphold the Complaint. No action is necessary to implement the Panel’s decision.
Nick J. Gardner
Dated: March 10, 2003