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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Akbank v. Gurlercafe

Case No. D2001-1489

 

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 Gurlercafe Internet Hizmetleri, an internet-café serving in Turkey.

 

2. The Domain Name and Registrar

The disputed domain name is <akbank.net>.

The Registrar of the domain name is ItsYourDomain with an address in Illinois, United States of America.

 

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 email 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 8, 2002, a Request for Registrar Verification was transmitted to ItsYourDomain. In an e-mail to the Center dated January 8, 2002, ItsYourDomain confirmed that it is the Registrar for the domain name <akbank.net>.

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 9, 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 January 29, 2002.

The transmission by facsimile and to one e-mail-address (postmaster@akbank.net) 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 (two addresses) on January 31, 2002, and post on February 1, 2002. The postmaster address failed again. 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 Proceeding.

Having received the Panelist’s Declaration of Impartiality and Independence, the Center issued a Notification of Appointment of Administrative Panel on February 14, 2002, and set a decision date, with the Panelist’s deadline for issuing a decision of February 28, 2002. The Center transmitted the case file to the Panelist on February 14, 2002.

 

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;

Registration No:	Service Marks:	Intl. Classes	Registration Dates:
180391	AKBANK	36	24.06.1996
181151	AK (Device mark)	36	24.06.1996
180358	AK	36	24.06.1996

The Complainant has also the following international registrations registered under Intl. Madrid Protocol:

Int. Registration No:	Service Marks:	Intl. Classes	Registration Dates:
750014	AKBANK	36	19.10.2000
750065	AK	36	19.10.2000

The Respondent is the registrant of the domain name <akbank.net>. The domain was registered on September 12, 1999.

The Respondent operates an internet-café in Turkey. It registered the domain with the following data:

Administrative Contact:
domain for sale (AO57-IYD) <mailto:domainbu@hotmail.com>
05121111111
domain for sale
hell, 66 27650 MARS
[…]

The Respondent has no license or any other permission to use the name "AKBANK".

A representative of the Respondent offered the sale of the disputed domain name for US $200,000.00 to the Complainant in a telephone conversation with the chief manager of the law department of the Complainant. The Complainant rejected the offer. During another telephone conversation the Respondent offered the sale of the domain name for US $50,000.00. The Complainant also rejected this offer.

At present the domain name <akbank.net> does not resolve to a web site or other on-line presence.

 

5. Parties’ Contentions

A. Complainant

The Complainant asserts that: (1) The domain name <akbank.net> is identical or confusingly similar to the trademark "AKBANK" in which the Complainant has exclusive rights; (2) the Respondent has no rights or legitimate interests with respect to the domain name; and that (3) the domain name was registered and is being used in bad faith.

The Complainant requests that the Administrative Panel issue a decision that the domain name <akbank.net> be transferred to the Complainant.

B. Respondent

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.net>. 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 rights.

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 domain 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.net> 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 faith.

aa) Rule 4(b)(i) 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 to the Complainant who is the owner of the trademark.

The Complainant’s trademark is widely known. In the absence of evidence or even an assertion by the Respondent the Panel also accepts as fact that the Respondent registered the domain names knowing that they were the trade marks of the Complainants and that the objective was to sell the domain names to the Complainants for a valuable consideration well in excess of the Respondent’s out-of-pocket expenses.

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 only WIPO Cases No. D2000-1074 and D2000-0003).

cc) The Panel therefore concludes that Respondent registered and is using the domain name <akbank.net> in bad faith and that the requirement of the UDRP Paragraph 4(a)(iii) is satisfied.

 

7. Decision

The Panel thus decides that:

1) the domain name <akbank.net> 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.net>;

3) the domain name <akbank.net> 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, ItsYourDomain, transfer the domain name <akbank.net> to the Complainant.

 

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Dr. Torsten Bettinger
Sole Panelist

Dated: March 1, 2002