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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Genelkurmay Baskanligi v. Genelkurmay Inc.
Case No. D2001-1279
1. The Parties
The Complainant is Genelkurmay Baskanligi, 06100 Bakanliklar-Ankara, Turkey, and is represented by Mr. Abdullah Kaya, Generalkurmay Baskanligi Adli Musavirligi Prj.Sb. 06100 Bakanliklar-Ankara, Turkey.
The Respondent is Genelkurmay Inc, 900 S. Quince Street B-213 Denver, Co 80231, USA.
2. The Domain Name and Registrar
The Domain Name at issue is <genelkurmay.net>. The Registrar is Network Solutions, Inc., P.O. Box 17305 Baltimore, MD 21297-0525 USA (NSI).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the Center) by e-mail on October 22, 2001, and a hardcopy was received by the Center on October 30, 2001. The Center acknowledged the receipt of the Complaint on October 24, 2001.
On October 26, 2001, the Center sent to NSI a request for verification of registration data and on October 30, 2001, NSI confirmed that it is the Registrar, that the Respondent is the Registrant of the domain name <genelkurmay.net>, that the administrative and billing contact is Cicek, Ahmet, Genelkurmay Inc, 900 S. Quince Street B-213 Denver, Co 80231, USA, that the technical contact is DNS Administrator – HyperMart, Infospace Inc., 601 108th Ave NE 1200, Bellevue, WA 980004, USA, and that the domain name is in active status.
WIPO verified that the Complaint satisfies the Rules for Uniform Domain Name Dispute Resolution Policy ("the Rules") and the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy ("Supplemental Rules") and that payment was properly made. The Panel is satisfied this is the case.
On October 30, 2001, the Complaint was notified and on November 2, 2001, the notification was corrected, in accordance with the Rules, paragraph 2(a), and the administrative proceedings commenced. On November 26, 2001, the Center sent to the Respondent the Notification of Respondent Default.
On December 4, 2001, the Center notified the Parties that an Administrative Panel, composed of a single member, Dr. Gerd F. Kunze, had been appointed and that the Panelist had duly submitted a Statement of Acceptance and Declaration of Impartiality and Independence to the Center.
No further submissions were received by the Center or the Panel. The date scheduled for issuance of the Panel’s decision is December 18, 2001.
4. Factual Background
The Complainant is the Chief of the General Staff ("Genelkurmay") who is the commander of the armed forces of the Republic of Turkey. The function of the Chief of Gemelkurmay is in execution of Art. 117 of the Constitution of the Republic of Turkey regulated by Law No 1324 ("Code of the Authority and duties of the Chief of General Staff"). In these legal codes, of which the original and the English translation are attached to the Complaint, "Genelkurmay" is mentioned as an official institution independent from any ministries, working under the supervision of the Prime Minister. In principle the tasks of the General Staff are of sovereign nature and the Complainant is, at least generally, not acting under private law. In execution of its authority, the General Staff issues a monthly Bulletin, called GENELKURMAY BÜLTENI.
The Respondent registered on September 4, 1999, the domain name <genelkurmay.net>. According to the Complainant, the Respondent entertains (or at least entertained) under that domain name a website in Turkish language.
5. Parties’ Contentions
The Complainant submits that (1) the domain name <genelkurmay.net> is identical or confusingly similar to a trademark or service mark, in which the Complainant has rights; (2) the Respondent has no rights or legitimate interests in respect of the domain name; (3) the domain name was registered and is being used in bad faith.
The Respondent failed to submit a Response.
6. Discussion and findings
Paragraph 4(a) of the Policy lists three elements that the Complainant must prove to merit a finding that the domain name of the Respondent be transferred to the Complainant:
1) The domain name is identical or confusingly similar to a trademark or service mark ("mark") in which the Complainant has rights; and
2) The Respondent has no rights or legitimate interests in respect of the domain name; and
3) The domain name has been registered and is being used in bad faith.
1) Confusing similarity with a mark in which the Complainant has rights
The Complainant does not submit to have (registered or unregistered) trademark rights in the word "genelkurmay". It only refers to its rights, arising from the Constitution and from Law, and follows from these rights that it has its own rights to protect the intellectual property of the word "genelkurmay" in the domain name registration system. It is not surprising that the Complainant does not dispose of a trademark registration for the word "genelkurmay", since for the exercise of its tasks and duties, which normally do not include offering goods or services on the market for sale, the Complainant does not need such trademark protection.
The Panelist can accept the argument of the Complainant that, within its authority, it has the right to register domain names, such as the domain name <genelkurmay.tr>. However, the Complainant has not exercised such right and, in view of the principle, generally applied for domain name registrations, "first come, first served", the Complainant cannot now register the domain name <genelkurmay.net>, since it has already been registered by the Respondent. Under the Policy, the Complainant can only request the transfer of that domain name under the condition that the three elements listed above are fulfilled. The very first condition of the Policy is that the Complainant has rights in a mark (trademark or service mark).
The Complainant has neither stated that it has such rights nor has it submitted
any evidence to that extent. It has simply submitted two specimen of the monthly
Bulletin GENELKURMAY BÜLTENI as annex to the Complaint, without any comments
as to the manner in which that Bulletin is distributed. The Panelist therefore
assumes that this Bulletin is just a means of information and not a brochure
offered on the market for sale. Therefore, the use of the word "genelkurmay"
as part of the title GENELKURMAY BÜLTENI of that brochure does not constitute
use as a mark. Even if the Bulletin were offered on the market in order to be
purchased by interested customers, and if such use of the word "genelkurmay
as title of that Bulletin were to be considered as trademark use, this does
not necessarily mean that the Complainant has rights in a mark. Such rights
normally are acquired by trademark (respectively service mark) registration.
Only exceptionally trademark protection is granted (by Trademark Law or by common
law principles) based on use. However, in such cases simple use is generally
not sufficient. For example, under German Trademark Law the sign must have been
used to an extent that as a consequence of such use it has acquired secondary
meaning as a mark for the goods or services offered under that sign. Similar
provisions exist in the Trademark Laws of some other European countries. Since
the Complainant has submitted no arguments or evidence of use of the term "genelkurmay"
as a mark, the Panelist sees no need to enter in a study of Turkish Trademark
Law in order to check whether and, if yes, under which conditions marks may
be protected by the Law without being registered. Also, the Panelist need not
determine whether the Complainant may have other intellectual property rights
at the name "genelkurmay" (such as the right in a personal name under
general principles of private law), since for the time being the application
of the Policy is restricted to rights in a mark (it is under discussion, whether
the Policy should be extended to other Intellectual Property Rights, however
no decision has been taken yet). Unregistered trademark rights held by public
bodies have been found to meet the first condition in other UDRP cases, such
as, The State of the Netherlands v. Goldnames, Inc., WIPO
Case No. D2001-0520 and Skattedirektoratet v. Eivind Nag, WIPO
Case No. D2000-1314. However, in the said two cases the Complainants filed
sufficient evidence to prove that unregistered trademark rights were established.
In the present case, such evidence has not been filed by the Complainant.
In conclusion the fact that the Complainant, for the execution of its tasks and duties under its authority accorded to it by law, normally does not need trademark protection by registration for the term "genelkurmay", and therefore may not have envisaged to achieve such trademark registration, is fatal for the Complainant under the Policy.
Since the Complainant does not fulfill the first condition of the Policy, to have rights in a mark, to which the domain name <genelkurmay.net> may be identical or confusingly similar, there is no need to enter into a discussion whether the Respondent has rights or legitimate interests in that domain name and whether it registered and has been using it in bad faith. The Panelist does not exclude that, in a juridical case (e.g. under Turkish Law) the Complainant may succeed in a court against the registration and use of the domain name <genelkurmay.net> by the Respondent. However, under the Policy the request of the Complainant must be denied.
The Panel decides that the Complainant has not proven that it has rights in a mark, to which the domain name <genelkurmay.net> might be identical or confusingly similar. The request of the Complainant to grant the transfer the domain name in dispute to the Complainant is therefore denied.
Dr. Gerd F. Kunze
Dated: December 18, 2001