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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Karel Elektronik Sanayi Ticaret A.S. v. Cagri Haberlesme Sistemleri San Tic Ltd. Sti

Case No. D2007-0348

 

1. The Parties

The Complainant is Karel Elektronik Sanayi Ticaret A.S., Ankara, Turkey, represented by Eron Law Firm, Turkey.

The Respondent is Cagri Haberlesme Sistemleri San Tic Ltd. Sti, Istambul, Turkey.

2. The Domain Names and Registrar

The disputed domain names <karelelektronik.com> and <karelsantral.com> are registered with Tucows.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 8, 2007. On March 9, 2007, the Center transmitted by email to Tucows a request for registrar verification in connection with the domain names at issue. On March 12, 2007, Tucows 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, and technical contact. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on March 17, 2007. The Center verified that the Complaint together with the amendment 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”).

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 March 28, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was April 17, 2007. The Respondent did not submit any response. Accordingly, the Center notified, the Respondent’s default on May 7, 2007.

The Center appointed Dilek Ustun as the sole panelist in this matter on May 14, 2007. 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.

According to Paragraph 11 of the Rules, “unless the parties to an administrative proceeding agree otherwise, or the registration agreement that relates to the domain name in question specifies otherwise, the language of the administrative proceeding will be the language of the relevant registration agreement”. The Panel designates English as the language of the administrative proceeding.

4. Factual Background

The Complainant is the leading manufacturer and supplier of Telecommunication Equipment of Turkey.

The Complainant is the owner of a number of trademarks consisting of the word “karel”. The word Karel is registered in Turkey as trade and service mark under No. 2000 16217 for goods and services under international classes 09, 10, 11, 21, 37 and 38.

The mark KAREL is also registered as trademark in Azerbaijan, Spain, India, Kazakhstan, Russia and Portugal in class 9 and in South Africa under international classes 9, 37 and 38 in the name of the Complainant.

The mark KAREL is also registered under the Madrid Agreement and Protocol with international registration number 746996 under international classes 9, 37 and 38.

Karel is also Complainant’s tradename.

The main website of the Complainant can be found at “www.karel.com.tr”.

The terms “santral” and “elektronik” which are included in the disputed domain names are the Turkish translation of “central” and “electronic”.

5. Parties’ Contentions

A. Complainant

i) The domain name are identical or confusingly similar to a trademark or service mark in which the Complainant has rights

(Policy, para. 4(a)(i), Rules, paras. 3(b)(viii), (b)(ix)(1))

The Complainant contends that it has registered trademark rights in its name and that the Domain Names, which comprises its name “karelsantral” and “karelelektronik” together with the generic ‘.com’ suffix, are identical or confusingly similar to its trademark.

ii) The Respondent has no rights or legitimate interests in respect of the domain names

(Policy, para. 4(a)(ii), Rules, para. 3(b)(ix)(2))

The Complainant states that the Respondent has no rights or legitimate interests in respect of the Domain Names. The Respondent is not related with Karel or with any other business/person named (or that has a confusingly similar name to) Karel.

iii) The domain name were registered and are being used in bad faith

(Policy, paras. 4(a)(iii), 4(b); Rules, para. 3(b)(ix)(3))

The Complainant contends that the Respondent registered the Domain Names in bad faith and is using them in bad faith. Additionally, the Respondent registered the Domain Names with a view to attracting, for commercial gain, Internet users to its website by creating confusion with the Complainant’s trademarks within the meaning of paragraph 4(b)(iv) of the Policy.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

 

6. Discussion and Findings

According to paragraph 4(a) of the Policy, the Complainant must prove that;

(i) The Domain Names are identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) The Respondent has no rights or legitimate interests in respect of the Domain Names; and

(iii) The Domain Names have been registered in bad faith and are being used in bad faith.

A. Identical or Confusingly Similar

The Complainant has registered trademark /service mark KAREL under international classes 09, 10, 11, 21, 37 and 38. In this case, the Panel found that the trademark KAREL is distinctive for the goods and services under international classes 09, 10, 11, 21, 37 and 38.

The Panel also notes that by the time the Respondent registered the subject Domain Names the Complainant was already a well-known establishment in Turkey.

The Panel finds that the Complainant has trademark and trade name rights in the terms KAREL, KAREL ELEKTRONIK and KAREL SANTRAL. Since the Domain Names comprised of the Complainant’s trademark and the generic ‘.com’ suffix, the Panel finds that the Domain Name <karelelektronik.com> is identical to a trademark in which the Complainant has rights and the domain name <karelsantral.com> is confusingly similar to a trademark in which the Complainant has rights.

B. Rights or Legitimate Interests

According to paragraph 4(c) of the Policy, “[a]ny of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate [the Respondent’s] rights or legitimate interests to the domain name for purposes of Paragraph 4(a)(ii):

(i) before any notice to [the Respondent] of the dispute, [the Respondent’s] 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) [the Respondent] (as an individual, business, or other organization) [has] been commonly known by the domain name, even if [the Respondent has] acquired no trademark or service mark rights; or

(iii) [the Respondent is] making a legitimate noncommercial 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 Panel finds that the second and third elements are not applicable in this case. The Complainant has established that the websites with the disputed domain names have been used for commercial purposes.

To be bona fide, offering must meet several requirements (see Philip Morris Incorporated v. Alex Tsypkin, WIPO Case No. D2002-0946; Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903). Those include the following:

- A respondent must actually be offering the goods or services at issue;

- A respondent must use the website to sell only the trademarked goods; otherwise, it could be using the trademark to bait internet users and then switch them to other goods;

- A respondent must take steps to prevent confusion by making clear in its use of the domain name that it is not the trademark owner, even if it offers legitimate goods, by accurately disclosing the registrant’s relationship with the trademark owner; i.e. it may not, for example, falsely suggest that it is the trademark owner, or that the website is the official site, or that it is an authorized or exclusive agent;

- A respondent does not corner the market in all domain names or deprives the trademark owner of reflecting its own mark in a domain name.

In this case the Respondent has not been using the websites under the Domain Names as a market place for used KAREL products only. Other brands also were offered so that the Respondent in the Panels view has been baiting Internet users to its site by using the Complainant’s website.

The Respondent’s websites have no disclaimer stating that it is neither affiliated to nor authorized by the Complainant itself.

Further, the Respondent uses the distinctive characters KAREL trademark on its website. Therefore, Internet users are misled to assume that the Respondent’s websites are run by the trademark owner itself, an affiliate or an official sales agent of the Complainant.

The Respondent has not submitted evidence of the type specified in paragraph 4(c) of the Policy, or any other circumstances giving rise to a right or legitimate interest in the Domain Names. The Complainant submitted that the Respondent has neither a license nor any other permission to use the Domain Names in dispute.

Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in using the Domain Names.

C. Registered and Used in Bad Faith

It follows from what has been said regarding rights or legitimate interests that the Panel is satisfied that the Respondent has been using the disputed domain name intentionally to attempt to attract, for commercial gain, Internet users to his website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of his website. Pursuant to Policy paragraph 4(b)(iv), this constitutes evidence of both bad faith registration and bad faith use, for the purposes of paragraph 4(a)(iii).

The Panel therefore concludes that the Complainant has established this element of its case.

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain names <karelelektronik.com> and <karelsantral.com> be cancelled.


Dilek Ustun
Sole Panelist

Dated: May 28, 2007

 

Источник информации: https://internet-law.ru/intlaw/udrp/2007/d2007-0348.html

 

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