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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Akbank v. Dr. Mehmet Kahveci
Case No. D2001-1488
1. The Parties
The Complainant in this administrative proceeding is Akbank Turk A.S., a bank
organized and existing under the laws of Turkey, with its principal place of
business located at Sabanci Center 80745, Istanbul, Turkey.
The Respondent is Dr. Mehmet Kahveci, 177B State Street, McKinley Building,
Boston, Massachusetts, U.S.A.
2. The Domain Name and Registrar
The disputed domain name is <akbank.com>.
The Registrar of the domain name is Network Solutions Inc., 505 Huntmar Park
Drive, Herndon, Virginia, U.S.A.
3. Procedural History
Issuance of Complaint
3.1 On December 24, 2001, Complainant submitted a Complaint to the World Intellectual
Property Organization Arbitration and Mediation Center ("Center")
pursuant to the Uniform Domain Name Dispute Resolution Policy ("UDRP")
implemented by the Internet Corporation for Assigned Names and Numbers ("ICANN")
on October 24, 1999, and under the rules for the UDRP implemented by ICANN on
the same date ("UDRP Rules"). The Complaint and exhibits were received
by the Center via e-mail on December 24, 2001, and in hardcopy on December 28,
2001. The Center acknowledged receipt of the Complaint on December 28, 2001.
Confirmation of registration details
3.2 On January 7, 2002, a Request for Registrar Verification was transmitted
to Network Solutions, Inc. In an e-mail to the Center dated January 11, 2002,
Network Solutions confirmed that it is the Registrar of the domain name <akbank.com>.
Notification of Respondent
3.3 Having verified that the Complaint satisfied the formal requirements of
the UDRP and the UDRP Rules, the Center sent on January 15, 2002, a Notification
of Complaint and Commencement of Administrative Proceeding to the Complainant’s
authorized representative by e-mail; to the Respondent by post, facsimile and
e-mail (two addresses). The Center advised the Respondent that the Response
was due no later than February 4, 2002.
The transmission by facsimile and to the e-mail address email@example.com failed.
The other two methods of communication were successful.
Filing of Response
3.4 No Response was filed by the Respondent within the time specified in the
Notification of Complaint. A Notification of Respondent Default was sent by
the WIPO Center to the Respondent, and copied to the Complainant, by e-mail
and courier on February 7, 2002. As of the date of this decision, no Response
had been filed by the Respondent.
Constitution of Administrative Panel
3.5 Having received no Response from the Respondent within the specified time
in the Notification of Complaint, the WIPO Center proceeded to appoint a single-member
Panel and invited Dr. Torsten Bettinger to serve as a Panelist in this Administrative
Having received the Panelist’s Declaration of Impartiality and Independence,
the Center issued a Notification of Appointment of Administrative Panel on February 20,
2002, and set a decision date, with the Panelist’s deadline for issuing a decision
of March 6, 2002. The Center transmitted the case file to the Panelist on February
4. Factual Background
The Complaint asserted, and provided evidence in support of the following facts:
The Complainant is well-known as "AKBANK" and is now the largest
bank in Turkey in terms of assets. The Complainant has been ranked by the
Banker Magazine in 2000 among the top 500 banks in the world in terms
of asset size and shareholders' equity. In addition, it was awarded 'Best Bank
in Turkey' by Euromoney Magazine in 1992, 1993, 1998 and 2001(Annex 3).
The Complainant operates through its Head Office in Istanbul and in 13 regional
offices throughout Turkey and offices in other countries of the world.
The Complainant has provided documentary evidence of the following trademark
registration registered with the Turkish Patent Office;
AK (Device mark)
The Complainant has also the following international registrations registered
under the Madrid Protocol:
The Respondent is the registrant of the domain name <akbank.com>. The
domain was registered on September 12, 1999.
According to Network Solution’s WHOIS database, the Respondent is Dr. Mehmet
Kahveci, 177B State Street McKinley Building, Boston, MA 02109 U.S.A.
The Respondent has no license or any other permission to use the name "AKBANK".
At present the domain name <akbank.com> does not resolve to a website
or other on-line presence.
5. Parties’ Contentions
The Complainant asserts that (1) The domain name <akbank.com> is identical
or confusingly similar to the trademark "AKBANK" in which the Complainant
has exclusive rights; that (2) the Respondent has no rights or legitimate interests
with respect to the domain name; that (3) the domain name was registered and
is being used in bad faith.
The Complainant states that the Respondent has Turkish nationality and is a
very famous "domain name collector" in the Turkish Internet world
who owns dozens of domain name registrations almost all of which were identical
to various well-known Turkish companies’ such as
"<uki.com>, <yapi.com>, <akpa.com>, <cebitas.com>,
<cukurova.com>, <showtv.com>, <denizcilik.com>, <iktisat.com>,
<vakif.com>, <turyat.com>, <cankurtaran.com>, <profilo.com>,
<tekel.com>, <santeks.com>, <bilkont.com>, <tarmak.com>,
<orsa.com>, <ulusoy.com>, <ziraat.com>, <transturk.com>,
<yasar.com>, <tupras.com>, <ulker.com>"
The Complainant requests that the Administrative Panel issue a decision that
the domain name <akbank.com> be transferred to the Complainant.
The Respondent did not file a Response to the Complaint.
6. Discussion and Findings
Pursuant to paragraph 4(a), the Complainant must prove that each of the following
three elements are present if it is to prevail:
(i) The Respondent’s "domain name is identical or confusingly similar
to a trademark or service mark in which the Complainant has rights;" and
(ii) The Respondent has "no rights or legitimate interests with respect
to the domain name;" and
(iii) The "domain name has been registered and is being used in bad faith."
a. Identical or confusingly similar (paragraph 4(a)(i))
The Respondent has registered the domain name <akbank.com>. This domain
name is identical to Complainant’s trademark "AKBANK", except that
the domain name adds the generic top-level-domain ".com".
It is well established that the specific top level of the domain name such
as ".org", ".net" or ".com" does not affect the
domain name for the purpose of determining whether it is identical or confusingly
similar (See for examples WIPO Case Nos. D2000-0135,
D2000-0429 and D2000-1400).
The addition of the generic top-level-domain (gTLD) ".com" is without
legal significance in determining similarity.
The Panel therefore concludes that the domain name is identical or confusingly
similar to a trademark or service mark in which the Complainant has prior exclusive
b. Rights or legitimate interests (paragraph 4(a)(ii))
The Respondent has not provided evidence of the type specified in paragraph
4(c) of the Policy, or any other circumstances giving rise to a right or legitimate
interest in the Domain Name. The Complainant showed that the Respondent has
neither a license nor any other permission to use the name in dispute. In the
absence of evidence brought forward by the Respondent the Panel cannot find
a legitimate interest.
The Panel therefore concludes that Respondent has no rights or legitimate interests
in the domain name <akbank.com> and that the requirement of the UDRP Paragraph
4 (a) (ii) is satisfied.
c. Bad faith (paragraph 4 (a) (iii))
The fact that the Respondent has chosen not to submit a Response is particularly
relevant to the issue of whether the Respondent has registered and is using
the domain name in bad faith. Rule 14(b) of the Uniform Rules provides that,
in the absence of exceptional circumstances, a Panel shall draw such inferences
as it considers appropriate from the failure of a party to comply with a provision
or requirement of the Uniform Rules. This Administrative Panel finds there is
no exceptional circumstances for the failure of the Respondent to submit a Response.
This Administrative Panel draws from this failure the following two inferences:
(i) the Respondent does not deny the facts which the Complainant asserts,
and (ii) the Respondent does not deny the conclusions which the Complainant
asserts can be drawn from these facts.
Nevertheless, this Administrative Panel still has the responsibility of determining
which of the Complainant’s assertions are established as facts, and whether
the conclusions asserted by the Complainant can be drawn from the established
facts (see WIPO Case No. D2000-0438, Inter-IKEA
Systems B.V. v. Hoon Huh).
The Complainant provided evidence of facts, which are clearly relevant to the
issue of whether the Respondent registered and is using the domain name in bad
Rule 4 (b) of the Policy specifies the circumstances that evidence registration
in bad faith and provides that this can be asserted, if the domain was registered
or acquired primarily for the purpose of selling, renting, or otherwise transferring
the domain name registration (Rule 4 (b) (i)) to the Complainant or to prevent
the Complainant from reflecting its trademark in a corresponding domain name,
provided that the owner of the domain name has engaged in a pattern of such
conduct (Rule 4 (b) (ii)).
aa) The Panel has no doubt that these prerequisites for cancellation or transfer
of the domain name are fulfilled.
The Complainant’s trademark is long established and widely known. In the absence
of evidence or even an assertion by the Respondent to the contrary the Panel
accepts as fact that the Respondent registered dozens of domain names that are
identical to various well-known Turkish companies’ names and registered the
domain name <akbank.com> knowing that it was the trademark of the Complainant.
When this pattern of conduct and knowledge is combined with the fact that the
Respondent has not right or legitimate interest in the domain name there is
ground on which the Panel can conclude that that the objective was to sell the
domain name to the Complainant for a valuable consideration well in excess of
the Respondent’s out-of-pocket expenses or in order to prevent the Complainant
from reflecting its trademark "AKBANK" in a corresponding domain name.
bb) The fact that the domain is inactive does not prevent from this assertion.
On the contrary, inaction itself can constitute "use in bad faith",
where the Domain Name comprises a name which can only sensibly refer to the
Complainant or where there is no obvious possible justification for the selection
of the Domain Name (see WIPO Cases No. D2000-1074
cc) The Panel therefore concludes that Respondent registered and is using the
domain name <akbank.com> in bad faith and that the requirement of the
UDRP Paragraph 4 (a) (iii) is satisfied.
The Panel thus decides that:
1) the domain name <akbank.com> is confusingly similar to the trademark
in which the Complainant has rights;
2) The Respondent has no rights or legitimate interest with respect to the
domain name <akbank.com>;
3) the domain name <akbank.com> has been registered and used in bad faith
by the Respondent.
Pursuant to paragraph 4(i) of the Policy and pursuant to paragraph 15 of the
Rules, the Panel requires that the Registrar, Network Solutions Inc., transfer
the domain name <akbank.com> to the Complainant.
Dr. Torsten Bettinger
Dated: March 6, 2002