The Complainant is Kale Kilit Ve Kalip Sanayi A.S. of Istanbul, Turkey, represented by Istanbul Patent & Trademark Consultancy Ltd., Turkey.
The Respondent is Volkan Senol of Ankara, Turkey.
2. The Domain Name and Registrar
The disputed domain name is <kalelock.tk> (“Domain Name”).
The Registry with which the domain name is registered is BV Dot TK.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 6, 2010. On April 7, 2010, the Center transmitted by email to BV Dot TK a request for registrar verification in connection with the disputed domain name. On April 28, 2010, BV Dot TK 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 April 29, 2010. The Center verified that the Complaint together with the amendment to the Complaint satisfied the formal requirements of the TK Domain Name Dispute Resolution Policy (the “Policy”) as adopted by BV Dot TK (“Dot TK Registry”) 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 May 6, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was May 26, 2010. The Respondent sent two informal e-mail communications to the Center on April 29, and May 26, 2010 in Turkish language, but did not file a formal Response.
The Center appointed Selma Ünlü as the sole panelist in this matter on June 2, 2010. 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.
The date scheduled for the issuance of the Panel's decision was June 16, 2010.
The Panel has been informed that the matter has been conducted in both English and Turkish and therefore it would be necessary for the Panel to make a determination as to the proper language of proceeding. The Panel notes that the Complainant submitted a request on April 29, 2010 asking for English to be the language of the administrative proceedings, while the Respondent (having been offered a fair opportunity to do so) did not raise any proper objections as to the requested choice of language. Accordingly the Panel, having considered the fact that that the disputed domain name consists of English words, finds that the Respondent should be able to communicate in English and therefore it has been decided that the language of the administrative proceedings is the English language.
4. Factual Background
The facts stated in the Complaint are as follows:
(1)The Complainant, namely Kale Kilit Ve Kalip Sanayi A.S, established in 1953, is the leading manufacturer for various kinds of household and security locks in Turkey and one of the most integrated and largest security lock manufacturers in the world.
(2) The Complainant conducts its business almost exclusively in connection with the name and trademarks Kale and Kale Kilit. According to the information provided by the Complainant and the evidence filed under Annexes 4, 5, 6a and 6b, the Complainant is the registered owner of many “KALE” rooted trademarks, both word and figurative marks, in many jurisdictions (including but not limited to Turkey, EU Community and International Registration) earliest of which dates back to 1969. In addition, the Complainant is also the registered owner of several KALE KILIT word and figurative trademarks.
(3)The term “kilit” within the trademark registration and trade name of the Complainant is, in the Turkish language, a generic term that means “lock” in English.
(4)The Complainant maintains its homepage under the website “www.kalekilit.com.tr” and also owns the website “www.kalekilit.com”.
(5) On August 28, 2009, the Respondent, without authorization from the Complainant, registered the Domain Name <www.kalelock.tk> with Dot TK Registry. As per the current WhoIs record, the Respondent is an individual, residing in Ankara, Turkey.
(6) The Respondent has also registered the domain names<kalelock.com>, <kalelock.net> and <kalelock.org> which were later on transferred to Mr. Erci Zona and upon a complaint filed by the Complainant, all of these domain names are ordered to be transferred to the Complainant in Kale Kilit Ve Kalıp Sanayi A.S v. ERCI ZONA, WIPO Case No. D2010-0467.
(7) The disputed domain name is inactive and there was no content provided, when the Panel visited the Respondent's website on June 10, 2010.
5. Parties' Contentions
A. Complainant
The Complainant requests the Administrative Panel the issuance of a decision to affect the transfer of the Domain Name to the Complainant on the following grounds, basing on paragraph 4(a) of the Uniform Policy and paragraph 3(b) of the Rules:
(i) The Domain Name is identical or confusingly similar to a trademark or a service mark in which the Complainant has rights;
(ii) The Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) The Domain Name was registered and is being used in bad faith.
Concerning the point (i) the Complainant alleges that it is not only the leading lock manufacturer in Turkey, but also the number three of lock manufacturers worldwide. The Complainant also sets forth that it produces up to 20 million locks per year and argues that its trademarks KALE and KALE KILIT are one of the well-known household brands in Turkey before the consumer. Accordingly the Complainant argues that in view of the fact that the word “kilit” means “lock” in English, the word combination “kalelock” is similar to and constitutes the unauthorized use of Complainant's well known KALE KILIT trademarks and its registered trade name.
As to point (ii), the Complainant alleges that: the Respondent has no rights or legitimate interests in respect of the disputed domain name; in other words, the Respondent never used and does not intend to use the sign KALE in connection with a bona fide offering of goods and services; the disputed domain name consists of a trademark by which the Respondent is not commonly known; the Respondent has made no legitimate noncommercial or fair use of the disputed domain name.
Finally regarding point (iii), the Complainant argues that the Respondent has registered and used the disputed domain name in bad faith as the Respondent should have known the Complainant's well known trademarks well before the registration of the disputed domain name and that the Respondent registered the domain names primarily for the purpose of selling, renting or otherwise transferring the domain name registrations to the Complainant for excessive amounts and that the Respondent has sold three other similar domain names, namely, <kalelock.com>, <kalelock.net> and <kalelock.org> domain names to a third party, all of which have already been ordered to be transferred to Complainant, as in the case Kale Kilit ve Kalıp Sanayi A.S v. Erci Zona, supra
B. Respondent
The Respondent did not formally respond to the Complainant's contentions.
However, the Respondent replied by an informal email communication dated April 29, 2010 in the Turkish language and alleged that the Respondent has transferred the disputed domain name to a third party who failed to duly amend the information of the billing panel and he did not assume any responsibility due to the failure of a third party and refused all other claims of the Complainant.
6. Discussion and Findings
According to paragraph 15(a) of the Rules, the Panel shall decide the Complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable and on the basis of the Complaint where no Response has been submitted.
In accordance with paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements is satisfied:
(i) The domain name is identical or confusingly similar to the trademark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) The domain name has been registered and is being used in bad faith.
Paragraph 4(a) of the Policy states that the Complainant has the burden of proving that all these requirements are fulfilled, even if the Respondent has not formally replied to the Complaint. Although the Respondent has failed to submit a formal reply the Respondent sent an informal e-mail communication and the Panel concludes that this informal message of the Respondent should also be considered.
Upon careful review of the evidential materials submitted by the Complainant to support its contentions, the Panel finds the followings:
A. Identical or Confusingly Similar
The Complainant has produced sufficient evidence to prove that it has registered trade mark rights for the marks KALE and KALEKİLİT in various jurisdictions. The Complainant's KALE trademark was first registered in Turkey in 1969, followed by more than 50 further trademarks containing the sign KALE.
The Panel finds that the disputed domain name <kalelock.tk> comprises the Complainant's trademark KALE, with the additional word of “lock” which is in fact means “kilit” in Turkish. For the purpose of the third element of the Policy, bad faith, considering the fact that Complainant is also registered owner of many trademarks containing the word “kilit” which is also one of the core elements of the Complainant trade name and the main business area of the Complainant, the Panel finds that the Respondent adopted the word “lock” on purpose.
The Panel further finds that English language is not so unfamiliar with the Turkish consumer and the word “lock” is one of the words that the relevant consumer would easily perceive with its Turkish meaning, this word “lock” does not alter the fundamental character of the domain name and does not change the overall impression of it being a domain name connected to or associated with the Complainant, its trade name and its trademark KALE and KALE KILIT.
It is clear to the Panel that, partly as a result of the recognition of the Complainant and its trademarks KALE and KALE KILIT the disputed domain name may well be regarded by many Internet users as a domain name associated with or connected to the Complainant's business in selling and manufacturing household locks, etc.
The Panel finds that the TLD suffix is irrelevant when comparing a disputed domain name to a trade mark as the addition of generic top level domains (gTLDs) or country code top level domains (ccTLDs) does not affect the confusing similarity or identity between the domain name and the trademarks in issue. Therefore the TLD suffix “tk” is ignored as commonly accepted by former decisions. (Ahmanson Land Company v. Vince Curtis, WIPO Case No. D2000-0859; Monty and Pat Roberts, Inc. v. J. Bartell, WIPO Case No. D2000-0300; and J.P. Morgan & Co., Incorporated and Morgan Guaranty Trust Company of New York v. Resource Marketing, WIPO Case No. D2000-0035.)
Accordingly, the Panel finds that the disputed domain name is confusingly similar to the Complainant's mark and the first requirement under paragraph 4(a) of the Policy is satisfied.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy rules that, a Respondent may establish its rights or legitimate interests in the domain name, among other circumstances, by showing any of the following elements:
“(i) before any notice to you [Respondent] of the dispute, your 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) you [Respondent] (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you [Respondent] are 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 burden of proof rests in principle with the Complainant who must demonstrate a prima facie case that the respondent lacks rights or legitimate interests in the disputed domain name. Once the Complainant made out a prima facie case, then the Respondent may by showing one of the following elements prove the rights or legitimate interests in the disputed domain name.
The Panel finds that the Complainant has sufficiently provided non-contested prima facie evidence that the Respondent has no trademark, license or any other similar right to use the disputed domain name while the Respondent has not provided evidence of circumstances of the type specified in paragraph 4(c) of the Policy, or of any other circumstances giving rise to a right to or legitimate interests in the disputed domain name. In particular, the Respondent has failed to file a formal Response and sent only two informal e-mail communications s in which the Respondent states solely that the disputed domain name has been already transferred to a third party and thus the Respondent is not party to the present case. Thus the Panel finds that the Respondent is unable to adduce evidence to show cause that he has rights or legitimate interests to the disputed domain name.
Also the Panel confirms that – when it visited the disputed domain name on June 7, 2010 – there was no provided content. It rather appears that the disputed domain name has been passively held.
Considering that the disputed domain name seems inactive and there is no provided content, the Panel observes that the Respondent does not seem inclined to use the disputed domain name in future in connection with a bona fide offering of goods or services.
Additionally, the Panel finds out that the Respondent has not been commonly known by the disputed domain name, which is currently inactive; therefore the legitimate interests or rights of the Respondent could not be duly demonstrated under paragraph 4(c)(ii) of the Policy.
Hence, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy enumerates four, non-inclusive, circumstances that, if found by the Panel to be present, shall be evidence of the registration and use of a disputed domain name in bad faith.
The Complainant alleges that the Respondent has engaged in the type of behavior described as follows:
a) The disputed domain name was registered primarily for the purpose of selling, renting, or otherwise transferring the domain name registrations to the owner of the trademark for valuable consideration in excessive amounts.
b) Given the well-known status of KALE KİLİT trademark, the Respondent should have been aware of the Complainant's trademarks, when it registered the disputed domain name.
c) The Respondent registered the disputed domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a disputed domain name.
d) The Respondent provided false contact information in the disputed domain name registration, for the purpose of being unreachable.
e) The registration of corporate or trade names of third parties with which a respondent has no connection whatsoever may also be considered as a circumstance demonstrating bad faith.
The Panel is of the opinion that according to the Policy, paragraph 4(b), the Respondent has registered the disputed domain name in bad faith since the Panel observed the circumstances that the Respondent registered the disputed domain name to be primarily for the purpose of selling to the Complainant who is the owner of the trademark for valuable consideration as evidenced by the correspondences annexed to the Complaint between the Respondent and the Complainant between February 5-17, 2010.
In particular when considering the fact that the Respondent also registered three other similar trademarks, comprising “kalelock” element as the key word and that the Respondent has offered to sell to the Complainant for 20,000 USD all four domain names, the Panel concludes that the offer to sell the disputed domain name for a price exceeding the direct costs of its registration is evidence of bad faith.
Furthermore, the Panel finds that the disputed domain name consists of a confusingly similar element of Complainant's trademarks and trade name which are very well-known in Turkey where the Respondent is also domiciled. It is very likely that the Respondent knew of the Complainant's trade mark and the Panel finds that that the registration of domain name incorporating a well-known trademark without demonstrating a legitimate interest indicates strongly a registration in bad faith.
Hence, the Panel is convinced that the disputed domain name was registered and used in bad faith and that the Complaint satisfied the third element under paragraph 4(a)(iii) of the Policy.
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, <kalelock.tk> be transferred to the Complainant.
Selma Ünlü Sole Panelist
Dated: June 11, 2010
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