WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Kocbank A.S. v. N&K Danismanlik Limited
Case No. D2001-0849
1. The Parties
The Complainant is Kocbank A.S. a Turkish Corporation with addressin Barbaros Bulvari, Morbasan Sokak, Koza Is Merkezi C Blok, Balmumcu, 80700Besiktas, Istanbul, Turkey represented by Mr. Aykut Cangul and Mr. Osman Bosna.
The Respondent is N&K Danismanlik Limited, a Turkish Corporation with addressin Inönü Caddesi No.78/6, Bursa, 16220, Turkey.
2. The Domain Name and Registrar
The domain name at issue is and the corresponding registrarwith which the domain name is registered is Network Solutions, Inc. (hereinafter"Network Solutions"), 505 Huntmar Park Drive, Herndon, Virginia 20170-5139,USA.
3. Procedural History
The Complaint was submitted in hard copy on July, 3, 2001, and via e-mail onJuly 5, 2001, to the World Intellectual Property Organization Arbitrationand Mediation Center (hereinafter the "WIPO Center").
On July 4, 2001, the WIPO Center requested the Registrar, Network Solutions,pursuant to Paragraphs 2(a) and 4 of the Rules for Uniform Domain Name DisputeResolution Policy (hereinafter the "Rules"): (1) to confirm that a copy of theComplaint had been sent to Network Solutions by the Complainant; (2) to confirmthat the domain name at issue was registered with Network Solutions, (3) toconfirm that the person identified as the respondent is the current registrantof the domain name; (4) to provide the full contact details (i.e., postal address(es),telephone number(s), facsimile number(s), e-mail address(es) available in theregistrar's Whois database for the registrant of the disputed domain name, thetechnical contact, the administrative contact and the billing contact); (5)to confirm that the Uniform Domain Name Dispute Resolution Policy (hereinafterthe "Policy") applies to the domain name, and (6) to indicate the current statusof the domain name.
On July 6, 2001, Network Solutions replied that: (1) Network Solutions wasin receipt of the Complaint sent to them by the Complainant; (2) Network Solutionswas the Registrar of the domain name registration; (3) N&K Danismanlik Limitedwas the current registrant of the domain name registration.Network Solutions also provided the full contact details as requested noting, however, a discrepancy in the data regarding the administrative, technicaland billing contacts, and confirmed that Network Solutions' 5.0. Service Agreementwas in effect and the domain name registration in "Active"status.
On July 9, 2001, WIPO Center requested the Complainant to amend the Complaintin order to reflect the modification of the administrative, technical and billingcontact information. On July 10, 2001, Complainant amended the Complaint, remarking,however, that the modification of the administrative, technical and billingdata had been changed subsequently to the filing of the Original Complaint.
In light of the above and according to the documents filed with the Panel,the Complaint appears to have been filed in accordance with the requirementsof the Rules and of the World Intellectual Property Organization SupplementalRules for Uniform Domain Name Dispute Resolution Policy (hereinafter the "SupplementalRules"). The Panel finds that the payment was properly made and agreeswith the WIPO Center�s assessment concerning the Complaint�s compliance withthe formal requirements: in accordance with Paragraph 2(a) of the Rules, theComplaint was properly notified on July 12, 2001, to the Respondent who didnot file any Response and was notified of his default on August 1, 2001. OnAugust 7, 2001, the Parties were informed that in accordance with Paragraph6(f) of the Policy an Administrative Panel consisting of a single Member hadbeen appointed. The sole Panelist submitted a Statement of Acceptance and Declarationof Impartiality and Independence and the date scheduled for the issuance ofthe Panel�s decision was set for August 21, 2001.
Finally, in accordance with Paragraph 11 of the Policy, since the Parties tothe present administrative proceeding have not agreed otherwise, and since theregistration agreement that relates to the domain name in question does notspecify otherwise, the language of the administrative proceeding will be thelanguage of the relevant registration agreement, i.e. English.
4. Factual Background
According to the Complaint, Kocbank is a wholly-owned subsidiary of the KocGroup, one of the largest industrial and commercial corporations in the worldwith 13 billion US Dollars combined turnover. The foundations of Kocbank, whichnow totals 87 branch offices, reach back to 1981 with the opening of the AmericanExpress Bank branch, an American Bank specialized in wholesale corporate bankingservices with an emphasis on international trade finance in Istanbul. In 1985,the Koc Group and American Express became partners and formed Koc-American Bank,with 51% and 49% shares, respectively. The Koc Group increased its holdingsin the Bank to 100% at the end of 1992, making the Bank a wholly-owned subsidiaryof the Group. The name "Kocbank" was adopted in 1993 and registered as trademarkin 1996 along with other Kocbank-formative trademarks such as Alokocban, Fonokocbank,Atmkocbank and Otokocbank.
Kocbank's operations have expanded beyond the national borders: Kocbank NederlandN.V. was incorporated in May 1996 as a fully-licensed bank in the Netherlandswith headquarters in Amsterdam. Kocbank Azerbaijan Ltd. became operational in2000, with the IFC as a 20% shareholder and in an effort to establish additionalpresence in international markets, a Bahrain branch office was opened in 2001,so that as of today, Kocbank is a well known international bank with six participations(two are in the Netherlands and Azerbaijan) and 87 branches (one located inBahrain). In addition to its sound existence in international markets, Kocbankranks among the upper echelon banks in Turkey, enjoying a prestigious statusgained through depositor confidence, customer loyalty and strong support fromits shareholders.
These statements are not only uncontested but supported by ample documentsand therefore the Panel takes the view that they are a fair representation ofthe Complainant�s activities.
5. Parties� Contentions
A. Complainant
According to the Complainant, the domain name at issue is identical to theregistered trademark KOCBANK (reg. n. 180284) in which Complainant only hasrights. KOCBANK is a fully valid trademark since following the take over ofthe remaining shares from the American Express Bank in 1992, the trademark wasactively used and promoted both via press (newspapers; magazine ads; printedmaterials and TV commercials). As a result of above mentioned publicity, theBank has been known, identified and referred accordingly (as Kocbank).
In addition, the domain name, is confusingly similar tothe most of other registered Kocbank trademarks such as Alokocbank (reg. n.199270), Fonokocbank (reg. n. 197617), Atmkocbank (reg. n. 197662), Otokocbank(reg. n. 199240) and Kocaracbank (reg. n. 197715).
The Complainant also alleges that Respondent has no rights or legitimate interestsin respect of the domain name that is the subject of the Complaint because theComplainant is the sole and exclusive owner of the trademark KOCBANK. As representedby the data of whois database of Network Solutions, the registrant of the domainis not related with the Bank, or with any other business or person named (orthat has a confusingly similar name to) Kocbank. Furthermore, the results ofthe search conducted by Ankara Patent Bureau Limited shows that the only registrationrecord for the trademark KOCBANK was in the name of the Complainant.
Finally, the Complainant alleges, on the basis of several concurring arguments,that the domain name appears to be registered and to havebeen used in bad faith.
The first reason arises out of the circumstance that the domain name was registeredprimarily for the purpose of selling. Evidence of such an intention is in therespondent�s messages which indicate that the domain at issue was being marketedby the registrant with the purpose of reselling for a price extremely high andin excess of the domain name registrant�s out-of-pocket costs directly relatedto the domain name.
The second reason arises out the webpages of "www." which indicateno intention of using, or demonstrable preparations to use, the domain nameor a name corresponding to the domain name in connection with a bona fide offeringof goods or services, but simply the purpose to sell the domain.
The third reason lies in the fact that the domain name was diverted to a Competitors�web site to put pressure on Kocbank and force for reaching a settlement. Kocbank,as one of the leading banks in the sector, facesa fierce competition. Garanti Bankası is one of the main competitors ofKocbank and it belongs to Doğuş Holding, another Group with activitiesin various sectors. In order to push Kocbank for a settlement, the domain nameat issue was and is being diverted to thewebsite of Garanti Bankası.
The fourth reason is that the Respondent intentionally attempted to attractfinancial gain. The current homepage of Complainant�s (at "www..tr")receives 50,000 hits per week on the average. The domain at issue is also estimatedto receive 25,000 � 30,000 hits per week. It is the Complainant�s belief thatthe Respondent, hoping to take the advantage of the traffic and attract financialgain, diverted the domain name to a commercial website namedBilgisayarMarket (which translates into Computer Market) at ""which, according to the WHOIS database of Network Solutions is administratedby a certain Hasan Yagiz, the administrator of at the time.Furthermore, according to the information given at , BilgisayarMarketis a trademark registered by N&K Danismanlik Limited, registrant of thedomain name at issue.
The fifth reason is to be found in Respondent�s attempt to erode the customers�and visitors� perception of Kocbank image. Driven by thepurpose of increasing the pressure for settlement, the registrant diverted theInternet users accessing the web pages under "www." to websites thatinclude explicit sex materials.
The sixth and last reason would be that Respondent, by including the word "bank"in a domain name, violates provisions of the Turkish Banking Law which forbidsuse of the word "bank" in names, documents, advertisements etc. bypersons who are not licensed to establish and operate banks.
B. Respondent
The Respondent did not submit any response.
6. Discussion and Findings
According to Paragraph 4(a) of the Policy, in an administrative proceeding,the Complainant must prove that each of following three elements are present:(1) the domain name is identical or confusingly similar to a trademark or servicemark in which the Complainant has rights; and (2) the Respondent has no rightsor legitimate interests in respect of the domain name; and (3) the domain namewas registered and is being used in bad faith.
1) The Panel believes that it is indisputable that the domain name at issue is identical to the trademark in which the Complainant hasrights. Therefore, the Panel is satisfied that the first condition is met. 2) The Panel finds that the Respondent has neither rights nor legitimate interestsin respect of the domain name.
Complainant has alleged, by reference to a number of circumstances (which Respondenthas failed to deny) that Respondent has no legitimate interests in respect ofthe domain name at issue.
The Panel takes the view that the circumstances indicated by Complainant createa prima facie inversion of the burden of proof. Respondent's default is thereforea further evidence of the Respondent's lack of any right or legitimate interestin the domain name (see Ermenegildo Zegna Corporation, Lanificio ErmenegildoZegna & Figli S.p.A., Consitex S.A v. Steven Shiekman, WIPOCase No. D2000-1375).
Therefore, this Panel is satisfied that the second condition is met.
3) This Panel finds that the domain name was registered and is being used inbad faith.
In order to reach this conclusion, the Panel examined separately two issues:
1) whether or not bad faith existed when the domain name was registered; and
2) whether or not the domain name was used in bad faith.
As far as the first issue is concerned, the Panel finds that Complainant hasgiven enough and supported evidence of the recognition and renown which thename KOCBANK has gained throughout the years in Turkey, country where the Respondentresides. In light of such recognition and taking into account that no rightsor legitimate interests with respect to the name KOCBANK could be establishedon the side of Respondent, the Panel believes that it is not credible that whenRespondent applied for registration of the domain name at issue (December 31,1997) Respondent was not aware of Complainant�s rights over KOCBANK.
Having deemed satisfied the first condition, the Panel must now establish whetheror not there has been use in bad faith.
Once again there are two conditions to be met: actual use and bad faith insuch actual use.
The Panel finds that both conditions are satisfied for a number of reasons.
According to the circumstances alleged in the Complaint and duly supportedwith the appropriate evidence, the domain name was used in various manners (toredirect the Internet user to the website of a competitor, to take advantageof the traffic generated by the Complainant�s potential and actual consumers,and to host pornographic material) with the apparent intent to damage Complainant�sbusiness.
The Panel sought in Internet the domain name at issue, which now so appears:
(click to seefull-size image)
(click to seefull-size image)
The Panel cannot but notice that the counter (on the bottom of the webpage)showed, on August 11, 2001, quite an impressive number of visitors: 97745, anevident admission of the frequency with which Internet users are attracted tothe website and therefore an incontrovertible (although inductive) evidenceof the damages that Complaint�s business may have suffered from Respondent�sregistration and use.
Furthermore, as indicated in the Complaint, Respondent never denied its intentionto gain financial advantages, well in excess of the reasonable costs for registration,from the sale of the domain name at issue. On the contrary, the Complainantproduced copy of correspondence incurred with Mr. Yagiz, the former Administrative,Technical and Billing Contact of the disputed domain name, proving the intentionof selling the domain name for a valuable consideration in excess of the Respondent�sdocumented out-of-pocket costs directly related to the domain name. Furthermore,Mr. Yagiz actually stated in a newspaper interview "we have been holdingKocbank�s name right for three years. The transfer fee we claim is a 100 thousanddollars. If they wish to buy the name right, they have to pay this amount first.Well, it is their choice and all is up to them. It is their image we are takingabout, not ours".
It is the Panel's view that the Respondent's overall conduct, from the frequentshifting of content of the website with the deliberate intent to disruptingthe business of the Complainant, to the request of a considerable amount ofmoney, to the actual use of the domain name at issue, shows that the Respondentregistered the domain name primarily for the purpose of selling, renting, orotherwise transferring the domain name registration to the Complainant who isthe owner of the trademark for valuable consideration in excess of its documentedout-of-pocket costs directly related to the domain name, and intentionally attemptedto attract for commercial gain, Internet users to its website by creating alikelihood of confusion with the Complainant's mark as to the source, sponsorship,affiliation, or endorsement of Respondent's website or a product or serviceon its website.
Therefore this Panel is satisfied that also the third condition is met.
7. Decision
In light of the foregoing, the Panel finds that Respondent�s disputed domainname is identical to Complainant�s trademark, that Respondenthas no legitimate rights or interests in the disputed domain name, and thatRespondent has registered and made use of the domain name in bad faith. Accordingly,pursuant to Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel ordersthat the disputed domain name be transferred to the Complainant.
Angelica Lodigiani
Sole Panelist
Dated: August 21, 2001
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