WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Kotak Mahindra Bank Limited v. DomainCA (Whois Protect Service) / y.g jo, Ju Davidman Case No. D2009-0971 1. The Parties
The Complainant is Kotak Mahindra Bank Limited of Mumbai, India, represented by Wadia Ghandy & Co., India.
The Respondent is DomainCA (Whois Protect Service) of Seoul, Republic of Korea / y.g jo of Seoul, Republic of Korea, and Ju Davidman of Sunnyvale, California, United States of America. 2. The Domain Name and Registrar
The disputed domain name is registered with Korea Information Certificate Authority Inc. d/b/a DomainCa.com. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 16, 2009. On July 17, 2009, the Center transmitted by email to Korea Information Certificate Authority Inc. d/b/a DomainCa.com a request for registrar verification in connection with the disputed domain name. On July 20, 2009, Korea Information Certificate Authority Inc. d/b/a DomainCa.com transmitted by email to the Center its verification response, disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. In response to notifications by the Center that the Complaint was administratively deficient, the Complainant filed an amended Complaint on July 28, 2009 and August 4, 2009. The Center verified that the Complaint together with the amended Complaints satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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”).
On July 23, 2009, the Center issued a Language of Proceeding notification, inviting comment from the parties. On July 29, 2009, the Complainant submitted a request that English be the language of the proceeding, to which the Respondent did not reply. On August 6, 2009, the Center notified the parties of its preliminary decision to 1) accept the Complaint as filed in English; 2) accept a Response in either Korean or English; and 3) appoint a panel familiar with both languages mentioned above, if available.
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceeding commenced on August 6, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was August 26, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on August 27, 2009.
The Center appointed Ik-Hyun Seo as the sole panelist in this matter on September 2, 2009. 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. 4. Factual Background
The Complainant is a Public Limited Company in India that conducts business in banking and related services. The Complainant was originally incorporated on November 21, 1985 under the name Kotak Capital Management Finance Limited, and was eventually converted to its present form and name on March 21, 2003. The Complainant, along with its subsidiary companies, has a network of more than 1,300 branches, franchises and satellite offices across India, as well as offices in New York, London, San Francisco, Dubai, Singapore, and Mauritius. Shares of the Complainant are traded on the Bombay Stock Exchange and the National Stock Exchange in India, as well as the Luxemburg Stock Exchange. The Complainant also holds a trademark registration for KOTAK, which was registered in India on October 28, 2003.
Respondent 1 (“Ju Davidman”) was the registrant of the disputed domain name immediately prior to the transfer of the disputed domain name to Respondent 2 (“y.g jo”). Based on the record, the transfer appears to have taken place on or about June 16, 2009. Both Respondents 1 and 2 appear to be individuals. Jo. Y. G. was the named respondent in a proceeding involving the disputed domain name (Kotak Mahindra Bank Limited v. Jo Y.G.,WIPO Case No. D2007-1510).
Respondent 3 (“DomainCA - Whois Protect Service”) is the registrar for the disputed domain name, and was named as a respondent because it provided an anonymous registration service for Respondent 2 in connection with the disputed domain name. After notification of these proceedings, the identity of Respondent 2 was disclosed by the registrar.
While three respondents are named in the Complaint, the only proper respondent under these circumstances is Respondent 2, as he/she is the current registrant of the disputed domain name. All subsequent references to the Respondent will be in reference to Respondent 2. 5. Parties' Contentions A. Complainant
The Complainant contends that the disputed domain name is identical or confusingly similar to marks in which the Complainant has rights. More specifically, the Complainant has a trademark registration for KOTAK, which is wholly incorporated in the disputed domain name. The additional portion “bank” need not be considered as it is non-distinctive.
The Complainant also contends that the Respondent has no rights or legitimate interests in the disputed domain name, and confirms that it has not authorized or licensed rights to the Respondent in any respect.
Finally, the Complainant contends that the disputed domain name was registered and is being used in bad faith. First, the KOTAK trademark is widely known internationally, and so it is not possible that the Respondent registered the disputed domain name without knowledge of the Complainant's rights. Further, the disputed domain name is merely linked to a domain name parking service, from which the Respondent is receiving improper revenue. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
Preliminary Issue: Language of the Proceedings
Paragraph 11 (a) of the Rules provides that the language of the proceeding shall be the language of the registration agreement, unless otherwise agreed to by the parties, subject to the authority of the Panel to determine otherwise. In this case, the default language of the proceeding is Korean, and the Complainant submitted arguments as to why English is more appropriate, citing a number of factors.
The Respondent failed to file a Response or otherwise participate in the proceeding, much less raise an objection to the Complainant's assertions on the issue of language. The Panel also notes that English content as well as links to English language sites are provided at the site corresponding to the disputed domain name. Further, the disputed domain name is linked to a domain name parking service (S) that is based in the United States and operates in English. It is presumed that the Respondent must have transacted and contracted with S in English.
Given these circumstances, the Panel finds little justification to render its decision in Korean to the prejudice and inconvenience of the Complainant, particularly in light of the lack of any participation in this proceeding by the Respondent. Accordingly, the Panel finds it fairer and more appropriate to render the decision in English. A. Identical or Confusingly Similar
The Complainant has demonstrated with supporting evidence that it holds a trademark registration for KOTAK. The disputed domain name incorporates the Complainant's trademark entirely, and includes the additional term “bank”. The term “bank”, however, lacks distinctiveness and does not dispel confusion. To the contrary, it may increase confusion since the Complainant is indeed a bank and is commonly referred to as “Kotak Bank”.
For the reasons mentioned above, it is clear that the first element has been satisfied. B. Rights or Legitimate Interests
The Complainant has made the required allegations that the Respondent has no rights or legitimate interests in the disputed domain name. However, the Respondent in this case has chosen to file no Response. Accordingly, there is no evidence or allegation in the record that would warrant a finding in favor of the Respondent on this point.
For these reasons, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name, and that the second element has been established. C. Registered and Used in Bad Faith
The Panel finds that there are more than sufficient reasons to find bad faith in this case. The Complainant's trademark KOTAK appears to be a coined term, and one that has absolutely no recognizable meaning either in English or in Korean. It is far too much of a coincidence that the disputed domain name incorporates this very unique term. The inclusion of the term “bank” further confirms the finding of bad faith, as that is exactly the business of the Complainant. In additional to the above, the disputed domain name is linked with a domain name parking service to generate revenue. This is a common practice among cybersquatters, who have no intention of actually providing any real content or service, but who expect many misguided visitors precisely because of the confusing nature of the domain name.
Given the circumstances described above, it is very clear that this third and final element has been established. 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 name be transferred to the Complainant.
Ik-Hyun Seo
Sole Panelist
Dated: September 28, 2009
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