WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Koninklijke Philips Electronics NV v. Ramazan Goktas
Case No. D2000-1638
1. The Parties
The Complainant is Koninklijke Philips Electronics NV of Groenewoudsweg 1, 5621 BA Eindhoven, The Netherlands ("Philips").
The Respondent is Ramazan Goktas of K. Karabekir, Mah.15 Sok. No. 22 Essenler, Istanbul 34200, Turkey (Mr Goktas).
2. The Domain Name and Registrar
The domain name at issue is <philips.org>. The Registrar is Register.com, Domain Registrar, 575 8th Avenue, New York, NY 10018, USA.
3. Procedural History
The complaint was filed by email on November 24, 2000 with a hard copy on December 1, 2000. The response was filed on January 6, 2001.
All the payments appear to have been duly made by Philips.
The Panelist has submitted a Statement of Acceptance and Declaration of Impartiality and Independence. The language of the proceeding is English.
4. Factual Background
Philips is a multi-national manufacturer, distributor, and seller of electrical and electronic goods ranging from consumer appliances to security systems and semi-conductors. It is the registered proprietor of world-wide trade marks in the name "Philips".
The domain name of which complaint has been made was registered on
September 26, 2000, well after the registration of the trade marks. The complaint was duly filed in December 2000 as indicated in Section 3 above.
5. The Partiesí Contentions
Philips contend that the domain name in question is identical or confusingly similar to its trade mark; that Mr Goktas has no right or legitimate interest in respect of the domain name; and that the domain name was registered and is being used in bad faith.
Philips point to the simple identicality of the domain name with its own trade mark to satisfy the first limb of the necessary requirements.
In relation to Mr Goktasí potential rights, Philips points out that, before complaint was made, the domain name resolved to a website which was identical to the front page of Philipsí own website. Subsequently, after complaint had first been made in a cease and desist letter on October 30, 2000, the domain name in question resolved to the web page of a competitor company, Sony. In relation to the issue of bad faith, Philips point to an apparent offer to sell the domain name for valuable consideration; a false representation of association through the use of an identical web page; an intention to deceive customers for commercial gain or to damage the reputation or goodwill of Philips; the use of banner advertising on the site belonging to the Registrar which, in the view of Philips, gives authenticity to the offending site; the possibility of fraud arising from confusion by Internet users; and the absence of any demonstrable plan to use the domain name for a bona fide purchase.
Mr Goktas alleges that the name "Philip" is generic and that it is unreasonable for Philips to seek to monopolise it. He argues defences based on free speech and fair use and contends that the website is a "complaint site" which is engaged in no commercial activity.
In a somewhat contradictory fashion, he also argues that he intended to use the name for a travel site based on the trading title "Philipís Organisation".
He asserts that the website was not offered for sale for a significant amount of money, but contends that "it is absolutely possible in any free market society to ask a question of anybody whether they are interested in buying any privately owned thing".
6. Panelís Findings
Under paragraph 4 of the UDRP, the Complainantís burden is to prove in relation to the complaint, that:-
(i) the domain name at issue is identical or confusingly similar to a trade mark or 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 has been registered and is being used in bad faith.
The Complainant must prove that each of these three elements are present in order to make out a successful case.
The first part of the test is straight forward. The domain name "Philips.org" is quite simply identical to the remaining trade marks registered by Philips around the world. It is a well-established principle of these decisions that the suffix ".org" or its equivalent do not detract from the identicality of the substance of the domain name itself, in this case the word "Philips" is identical to the Complainantís trade mark. Accordingly, the Complainant has satisfied the first limb of the test.
The representatives of Philips appear to be a little muddled in their contentions regarding second and third limbs of the test. Issues which are properly relevant to the question of the Respondentís legitimate rights or interest have been referred to under the heading of "Bad Faith" and vice versa. However, it is perfectly possible for the Panelist to extract the relevant reasoning and apply it to the facts.
In relation to the second limb of the test, namely the requirement to show that the Respondent has no right or legitimate interest, Philips have made their assertion, backed up by the visible facts and Mr Goktas has responded. In those circumstances, the burden effectively passes to the Respondent to demonstrate that he does have a right or legitimate interest. Mr Goktas asserts that he was making legitimate use of the domain name in relation to his "travel business". However, he has produced absolutely no evidence to suggest that that is the case, and his contentions are contradictory because elsewhere he indicates that the domain name is in fact a "complaint site", though why that would justify using a page design identical to that of the original Philips website is hard to see.
In the absence of any meaningful contention from Mr Goktas, the Panelist is satisfied that the second limb of the test is also satisfactorily made out.
The question of bad faith is the last to be considered and is usually the most difficult. However, in this case, that is not so. The UDRP helpfully provides examples of circumstances which, if found by the Panel to be present, are evidence of registration and use in bad faith.
The first of these circumstances is an indication that the domain name has been registered or acquired primarily for the purpose of selling, renting or otherwise transferring the valuable consideration, although there is some evidence of this in the shape of Mr Goktasí email "www.philips.org is for sale!". It is certainly true to say that no consideration was mentioned, though the somewhat emphatic tone of the email does indicate that Mr Goktas had financial expectations. He was right to point to the fact that the domain names are tradable commodities, but in any market it is generally frowned upon if one person, by wrongful means, puts himself in a position to make financial gain. In this case, the wrongful act would be the registration of a domain name which was so clearly designed to be equivalent to that of the trade marks of the Philips organisation.
The notion that the domain name was intended to denote a "complaint site" is simply unsustainable. There is no indication of that whatsoever. On the contrary, the fact that after the Complainants had raised their complaint in the form of a cease and desist letter, Mr Goktas changed the resolution on the website to introduce the web page of a competitor, is clear evidence of bad faith for the purposes of paragraph 4(b) of the UDRP. This inevitably creates a likelihood of confusion, and may be detrimental to the Philips mark generally.
Accordingly, Philips have satisfied its requirements in order to make out a full case under the UDRP.
In light of the foregoing, the Panel decides that the domain name in dispute, "Philips.org" is identical or substantially similar to the registered trade marks and trading names of Philips; that Mr Goktas has no rights or legitimate interest in respect of the domain name; and that the domain name was registered and has been used in bad faith.
Accordingly, the Panel orders that the registration of the domain name in issue be transferred to Philips.
Gordon D Harris
Dated: 8 February 2001