WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Kastaş Kaucuk Sanayi Ve Ticaret A.S. v. Kwon-Rye Kim Case No. D2009-1190 1. The Parties
The Complainant is Kastaş Kaucuk Sanayi Ve Ticaret A.S. of Turkey, represented by Istanbul Patent & Trademark Consultancy Ltd., Turkey.
The Respondent is Kwon-Rye Kim of Republic of Korea, appearing pro se. 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 September 8, 2009. On September 8, 2009, the Center transmitted by email to GoD, Inc. a request for registrar verification in connection with the disputed domain name, to which GoD, Inc. replied, informing the Center that the disputed domain name was transferred to Korea Information Certificate Authority Inc. d/b/a DomainCa.com. On September 16, 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 September 17, 2009, Korea Information Certificate Authority Inc. d/b/a DomainCa.com transmitted by email to the Center its verification response, confirming that the Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on September 18, 2009. The Center verified that the Complaint together with the amendment to the Complaint 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 September 17, 2009, the Center issued a Language of Proceeding notification, inviting comment from the parties. On September 18, 2009, the Complainant submitted a request that English be the language of the proceeding, and the Respondent objected to such request. On September 22, 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 September 22, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was October 12, 2009. The due date for Response was extended to October 17, 2009 on the Respondent's request. The Response was filed with the Center on October 13, 2009.
The Center appointed Ik-Hyun Seo as the sole panelist in this matter on October 26, 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 Turkish company established in 1981 that specializes in the design, production and distribution of hydraulic and pneumatic sealing elements as well as other related goods and services. The Complainant appears to have a sizable business, and revenue from exports appears to be over forty percent (40%) of its total revenues.
The Respondent appears to be an individual residing the Republic of Korea, and the disputed domain name was registered on November 4, 2001. 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 asserts that it has several registrations in Turkey as well as an international registration, which covers many other countries. These registrations all primarily consist of the text “kastaş”.
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. The Complainant notes that the Respondent offered a price of 12,100 euros for the sale of the disputed domain name. The Complainant further asserts that despite the long period of registration, the Respondent still has not used the disputed domain name in a bona fide manner, and merely links it to a domain name parking service. Finally, the Complainant asserts that the Respondent is the owner of approximately 1,000 domain name registrations. B. Respondent
The Respondent contends that the Complainant does not have prior trademark rights in the mark KASTAS. The Respondent further contends that “kastas” and “kastaş” are different terms, and thus not identical.
The Respondent contends that she was not aware of the Complainant, and that “kastas” is a Swedish word that means “subject” and is also used as a name by people. The Respondent says that her plans for providing a homepage were delayed since obtaining registration for the disputed domain name.
The Respondent contends that there was no bad faith since she was not aware of the Complainant. With respect to the offered price of 12,100 euros, the Respondent asserts that she never advertised that the disputed domain name was for sale, and that the offer was made not on her own initiative, but in response to the Complainant's inquiry. 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.
First, the Panel notes that English is not the mother language of either of the Parties. Given the fact that the Complainant is Turkish and the Respondent is Korean, English would appear to be the fairest neutral language for rendering this decision. Besides, both Parties were given the opportunity to submit arguments in the language of their preference. Further, despite her denials, there are several indications that the Respondent is sufficiently capable in the English language. The Panel notes that there was email communication between the Parties entirely in perfectly good English. The Respondent held the registration for the disputed domain name through a registrar in the United States, which registrar operates entirely in English. It was only shortly after notice of this proceeding that the Respondent had the disputed domain name transferred to a Korean registrar. The disputed domain name was also linked to a domain name parking service located in the United States, which also operates in English. Finally, it is abundantly clear that the Respondent is quite capable of navigating English websites, which she did to produce exhibits in support of her Response.
Given these circumstances, the Panel finds it proper and fair to render this decision in English. A. Identical or Confusingly Similar
The Complainant has demonstrated with supporting evidence that it holds various trademark registrations that primarily consist of or incorporate the term “kastaş”. While the Respondent has made several arguments with respect to this issue, it is not necessary to address each one, as they are all essentially subsumed in her primary contention – that “kastaş” and “kastas” are different.
In support of her position, the Respondent contends that she searched KASTAS on the Turkish trademark database, and that no hits were reported. It is only when the “S” is typed as “Ş” that results are found. Further to this, the Respondent argues that the disputed domain name consists of English letters (i.e., kastas), so this is something entirely different that the trademark asserted by the Complainant (i.e., KASTAŞ).
While this Panel is the first to admit that it is not familiar with the Turkish alphabet, it finds the Respondent's arguments unpersuasive and contrived. Any difference between “kastas” and “kastaş” in pronunciation or perhaps even meaning based on the Turkish language is not likely to dispel the confusing visual similarity. For example, it is noted that the Complainant's current official website is found at “www..tr”. These (“kastas” and “kastaş”) can only been seen as essentially identical under the circumstances.
For the reasons mentioned above, the Panel finds that the first element has been established. 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. In response, the Respondent points out that “kastas” is a Swedish word that means “subject” and is also used as a name for people. The Respondent states that her original plans to provide a “homepage” have been delayed since the disputed domain name was registered in 2001.
Again, the Panel is not an expert in the Swedish language, but even assuming that the Respondent's assertions on the Swedish term as well as the names were accepted as true, these points are of no consequence. While the Respondent has demonstrated quite a bit of resourcefulness and creativity, neither point dispels the assertion that the Complainant has trademark rights in the subject term or, more importantly, forms a basis for a finding that the Respondent has rights or legitimate interests in respect of the disputed domain name. As is the practice of many cybersquatters, it is quite easy to run searches for specific terms and find all sorts of meanings therefore, but which have no connection or relationship with the actual use of the domain name. In this case, the Respondent has provided not even a plausible explanation as to why she chose “kastas”, much less why she has rights or legitimate interests in this term.
For the reasons given above, the Panel finds that the Respondent has no rights or legitimate interests in respect of 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 sufficient reasons to find bad faith in this case. First, the disputed domain name has been registered since 2001, and it was used for nothing more than linking to a domain name parking service for the generation of passive revenue. The Respondent states that her original plans to provide a website have been delayed, but provides no explanation or supporting evidence. It is also quite unusual for the Respondent to have selected a domain name consisting of “kastas”. This has no meaning in Korean, and Respondent fails to even explain the reason for such an unusual selection or how it relates to her allegedly planned “homepage”. Further, the Respondent offered a price of 12,100 euros to sell the disputed domain name, which is clearly in excess of reasonable costs and expenses and an amount intended for profiteering. While the Respondent notes that the offer was made in response to an inquiry from the Complainant, it is not relevant who commenced the contact and negotiations. One final point is that the Complainant asserts, supported by a preliminary report from an on-line domain name service, that the Respondent holds approximately 1,000 domain name registrations. There is no denial of this by the Respondent.
For the reasons given above, it is 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: November 23, 2009
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