Blistex Inc. brought a UDRP against Noktala Co. Ltd., who was represented by The Muscovitch Law Firm on the domain name Kanka.com
Blistex owns a trademark on the term KANK-A.
The domain was going to a parked page with a sales link.
Apparently the complainant offered to buy the domain, but their offers were rejected, although the decision did not report the amount of the offers.
In all a very good decision for domain holders.
Here are the relevant facts and findings by the three member WIPO Panel:
?Factors a panel tends to look for when assessing whether there may be rights or legitimate interests in a domain name comprised of a dictionary word would include the status and fame of the trademark, whether the respondent has registered other domain names containing dictionary words or phrases and whether the domain name is used in connection with a purpose relating to its generic or descriptive meaning?
?In this case the Panel has not seen persuasive evidence of the status and fame of the Complainant?s trademark.?
?The Complainant has not provided any evidence of facts which might indicate that the Respondent knew or should have known of its trademark registrations. Nothing in the Policy can be construed as requiring a person registering a domain name to carry out a prior trademark search in every country of the world.?
?Since it is not shown that the Respondent knew or should have known of the existence of the Complainant?s registered trademarks for KANK-A, there is no evidence suggesting that the disputed domain name has been chosen with the intent to profit or otherwise abuse the Complainant?s trademark rights.?
?The Respondent has registered other domain names containing dictionary words or phrases. ?
?The Complainant has not disputed the fact that the Respondent owns other domain names which represent words in the Turkish dictionary.?
?Whilst in the past the Panel accepts that the disputed domain name resolved to a homepage which included links titled ?For Mouth Pain? and ?Kanka chat?, the Panel considers that the Complainant?s evidence indicates the two different meanings of ?kanka? ? one a buddy and the other a trademark ? which algorithms in the website platform used to form the Related Searches.?
?In conclusion, the Panel finds that the Respondent has legitimate rights and interests in the disputed domain name in accordance with paragraph 4(c)(i) of the Policy.?
On the issue of bad faith the panel found:
?As stated in relation to rights or legitimate interests, it is not shown that the Respondent knew or should have known of the existence of the Complainant?s registered trademarks for KANK-A.
T?he Complainant has submitted evidence that for eight years the disputed domain name resolved to a homepage which showed various Related Searches including links titled ?For Mouth Pain?, ?Kanka chat? and ?Car rental discounts?. The Respondent contends that the Related Searches are formed by algorithms that recognize through the use of cookies the Internet user?s recently searched terms.?
?The Panel considers that the Complainant?s evidence indicates the two different meanings of ?kanka?- one a buddy and the other a trademark ? and that these were both recognized by the algorithms used on the website platform to generate automated searches.?
?The Panel does not find that the Respondent intentionally used the disputed domain name to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with the Complainant?s mark as to the source, sponsorship, affiliation, or endorsement of the respondent?s website or location or of a product or service on its website or location.?
?Currently the disputed domain name resolves to a search engine, the homepage of which has links to websites for roommates, pen pals and classmates which relate to the Turkish meaning of ?kanka?. ?
?To reach websites that promote the goods and services of the Complainant?s direct competitors, the Internet user must insert a term into the search engine which relates to the goods and services of the Complainant?s competitors. This is how an Internet user would carry out a search through any other search engine.?
?The Panel finds that the Respondent has not used the disputed domain name in bad faith.?
?Further, the Panel finds that the Respondent did not register the disputed domain name for the purpose of disrupting the business of a competitor.?
?In relation to the offer to sell the disputed domain name, this is shown in a banner which is automatically generated by the website platform not the Respondent.?
?This is not something that is within the control of the Respondent. ?
?Further, the Respondent did not accept the Complainant?s offers to buy the disputed domain name.?
?Therefore, the Panel finds that the Respondent did not register or acquire the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant (the owner of the trademark or service mark) or to a competitor of that complainant, for valuable consideration in excess of documented out-of-pocket costs directly related to the disputed domain name.?
Source: http://www.thedomains.com/2012/10/13/noktala-beats-back-udrp-on-kanka-com-brought-by-bllistex/
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