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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Yьksel Inєaat A.Є. v. Erdogan Koparal
Case No. D2002-0285
1. The Parties
The Complainant in theseadministrative proceedings is Yьksel Inєaat A.Є., SIM Sogutozu Is Merkezi SogutozuCad. No.14/A 06560 Bestepeler, Ankara, Turkey.
The Respondent is Erdogan Koparal, 193 Millet Cad. Istanbul, 02355,Turkey.
2. The Domain Names and Registrar
The domain names in disputeare <yukselinsaat.com>, <yukselinsaat.net>, and <yukselinsaat.org>.
The Registrarwith which said domain names are registered is TierraNet Inc. DBA DomainDiscover (hereinafter “the Registrar”).
3. Procedural History
On March 26, 2002 the Complaintwas received by the WIPO Arbitration and Mediation Center ("theCenter") by e-mail and in hard copy on April 2, 2002.
On April 3, 2002 the Center sent aRequest for Registrar Verification to the Registrar. On April 10, 2002 theRegistrar responded, confirming that it is the registrar of said domain namesand that the Respondent was the current registrant, Administrative Contact,Technical Contact and Zone Contact for each said registration. The Registrarfurthermore confirmed in respect of each said registration that the UniformDomain Name Dispute Resolution Policy (hereinafter “the Policy”) applied toeach said registration, that the language of the registration agreement wasEnglish, and that the registrant had submitted in his registration agreement tothe jurisdiction at the location of the principal office of the Registrar forcourt adjudication of disputes concerning or arising from the use of the domainnames.
In accordance with Paragraph 4(a)of the Rules for Uniform Domain Name Dispute Resolution Policy ("theRules") and paragraph 5 of the WIPO Supplemental Rules for Uniform DomainName Dispute Resolution Policy ("the Supplemental Rules") the Centerreviewed the Complaint to ascertain whether it satisfied the formalrequirements of the Policy, the Rules and the Supplemental Rules and thatpayment in the required amount had been made by the Complainant.
On April 12, 2002, the Center senta Notification of Complaint and Commencement of Administrative Proceedings tothe Respondent. Said Notification was sent to the Respondent by Post/Courier(with enclosures) and by e-mail (Complaint without attachments). A copy of saidNotification was sent to the authorised representative of the Complainant bye-mail. Further copies of said Notification were sent to the InternetCorporation for Assigned Names and Numbers ("ICANN") and to theRegistrar by e-mail.
The Center received confirmation via the courier’s Package Tracking Report that the Notification of Complaint and Commencement of Administrative Proceedings was successfully delivered on April 16, 2002. Service of the Notifications by e-mail to the addresses firstname.lastname@example.org, email@example.com, and firstname.lastname@example.org failed due to permanent fatal errors. Similarly delivery to the Respondent at the e-mail address provided by the Respondent for administrative contact purposes failed due to a permanent error.
SaidNotification of Complaint and Commencement of Administrative Proceeding inter alia advised the Respondent thatthe Administrative Proceeding had commenced on April 12, 2002 and that theRespondent was required to submit a Response to the Center on or before May 2,2002.
NoResponse was received by the Center and on May 4, 2002, the Center sent aNotification of Respondent Default to the Respondent by e-mail. A copy of saidNotification of Respondent Default was on the same date sent to the authorisedrepresentative of the Complainant by e-mail.
OnMay 15, 2002, after having received a Statement of Acceptance and Declarationof Impartiality from him in accordance with paragraph 7 of the Rules, theCenter proceeded to appoint James Bridgeman as the Administrative Panel. On thesame day the case file was transmitted to the Administrative Panel.
TheComplainant and a person purporting to represent the Respondent sent furthere-mail communications both directly to this Administrative Panel and to theCenter. Such further communications are not encouraged by the Rules, andcommunication directly with the Administrative Panel is prohibited by theRules. In the circumstances this Administrative Panel has not considered thecontent of same in reaching this decision.
In the view ofthe Administrative Panel, proper procedures were followed and thisAdministrative Panel was properly constituted.
4. Factual Background
According to the Complaint, on March 15, 2002, on theapplication of the Complainant, the 30th Basic Civil Court of Ankaradirected that the Respondent’s Internet site be stopped until the case isresolved.
The Complainant isengaged in the construction industry in Turkey and the owner of a Turkishregistered trademark and service mark device mark YЫKSEL INЄAAT A.Є andDEVICE, registration number 188944. The Complainant has registered the domainname <yukselinsaat.com.tr>.
In the absence of a Response, the onlyinformation relating to the Respondent is to be found in the registrationdetails provided to the Registrar and the information posted on theRespondent’s web site at the <yukselinsaat.com> web address in which, hestates that he established the web site to encourage debate about certaincollapsed buildings in Turkey.
5. Parties’ Contentions
The Complainantrequests that said domain names be transferred to the Complainant.
The Complainant alleges that said domain names are identical orconfusingly similar to a trademark or service mark in which the Complainant hasrights; that the Respondent has no rights or legitimate interests in respect ofsaid domain names; and that said domain names were registered and are beingused in bad faith.
The Complainant states that it is the owner of the above referencedregistered trademark and has provided a photocopy of said registration as anannex to the Complaint. The trademark is registered in respect of constructionservices relating to railways, airports, bridges, underground structures, andmulti-story buildings.
The Complainant further submits that said domain name<yukselinsaat.com> is particularly confusingly similar to theComplainant’s domain name <yukselinsaat.com.tr>.
The Respondent is not related to the Complainant and has no connectionwith any other construction business or person named Yuksel Insaat. Neither isthe Respondent related to any business or person with a name that isconfusingly similar to the Complainant’s name.
Furthermore the Complainant submits that the results of a WHOIS queryconducted by the Complainant in the Registrar’s database on March 3, 2002against the domain name <yukselinsaat.com>, produced a web page on whichthe statement “for sale, for sale, for sale, for sale, tr” was posted. TheComplainant has submitted a copy of said web page with the Complaint.
The Complainant submits that by permitting said statement “for sale, forsale, for sale, for sale, tr” to be posted on the Registrar’s WHOIS database,the Respondent shows that he has commercial interests in the domain name.
Furthermore the Complainant submits that the domain name<yukselinsaat.com> should be considered as having been registered andused in bad faith because the Respondent’s web site established at the<yukselinsaat.com> address, contained statements that purported torepresent that web site as the official web site of the Complainant. TheComplainant has submitted a number of screen shots of pages of the Respondent’sweb site accessible at the address www.yukselinsaat.com/indexEn.xp., toillustrate this point.
In the English language version of this site, the following words appear:
“Yьksel Construction Co., Inc. TЫV CERT ISO 9001 YЬKSEL PROJE importantpublic announcement.”
The web page contained a number of photographs of people and a photographof what appears to be a collapsed building captioned “Yьksel Complex, Yalova,Turkey (following Agust (sic) earthquake)”
The web page further contained the following statements:
“Our buildings are collapsing: 316 people died in Yalova Complex (Agust(sic) 1999) – Bolu Tunnel collapsed (October 12 1999) – Aksary IstanbulUnderground construction collapsed.”
The web page further stated:
“So many innocent people lost their lives. Despite the fact that allthese innocent people died in the buildings that we built, to this date, wehave not made any public statement. Now the next anticipated Istanbulearthquake is immanent. We have our signatures on many familiar buildings thatare home to thousands of people in Istanbul. It really scares us to think thepossibility of loosing (sic) thousands of more people in the next inevitableearthquake. That is why we have decided to judge ourselves (sic) in front ofyou with our good deeds and sins on these pages…”
Further down the web page there is a statement:
“As you have guessed it, this can not be a site that Yьksel Insaat Co.put together and obviously, it is not. This site is an invitation to thinkingand talking about what is going on here. Why have we built this site? Becausewe have lost 4 of our own family members under those buildings…”
The Complainant submits that this web site has harmed the commercialreputation of the Complainant. The Complainant has furthermore provided copiesof newspaper articles published in the Turkish newspaper Hьrriyet.
The Complainant submits that while the Respondenthas not yet established a web site to which the domain names<yukselinsaat.org> and <yukselinsaat.net> resolve, the Complainantis concerned at the possibility that the same content may be published on websites at these addresses.
There was no Response filed by theRespondent.
6. Discussion and Findings
Court Proceedings and the Jurisdiction of this Administrative Panel
Sub-paragraph4(k) of the Policy addresses “Availability of Court Proceedings” and providesthat the mandatory administrative proceeding requirements set forth inParagraph 4 shall not prevent either party from submitting the dispute to acourt of competent jurisdiction for independent resolution before suchmandatory administrative proceeding is commenced or after such proceeding isconcluded.” It follows that the factthat the Complainant has commenced court proceedings in Turkey is no bar to thejurisdiction of this Administrative Panel.
Inaccordance with paragraph 4(a) of the Policy, the Complainant must prove that:
(i) the domain names registered by theRespondent are identical or confusingly similar to a trademark or service markin which the Complainant has rights; and
(ii) the Respondent has norights or legitimate interests in respect of the domain names in question; and
(iii) the domain names have been registered andare being used in bad faith.
Identical or Confusingly Similar
It is clear that the Complainanthas rights in the Turkish registeredtrademark and service mark device mark YЫKSEL INЄAAT A.Є andDEVICE, registration number 18894. In the view of this AdministrativePanel, it is further clear that the said domain names and each of them areconfusingly similar to the Complainant’s trademark and service mark, and thisis evidenced by the fact that the Complainant registered the domain name <yukselinsaat.com.tr> torepresent its company name, and trade mark, in the Turkish domain.
The Complainant has thereforesucceeded in establishing the first element in the test set out in paragraph4(a) of the Policy.
Rights or Legitimate Interests
It is clear that the Respondenthas no commercial association with the Complainant and has no rights orlegitimate interest in the trademark or service mark YЫKSEL INЄAAT A.Є and DEVICE or any similar trademark such as YUKSELINSAAT. The question arises as to whether the Respondent has any rights in thedomain names as distinct from the trademark or service mark.
The web site established at thedomain name address <yukselinsaat.com>is clearly a gripe site and the other domain names, <yukselinsaat.org> and <yukselinsaat.net>, do notresolve to any web site. In the view of this Administrative Panel, while theRespondent is entitled to freely express his views, provided that he does notcontravene the laws of libel, such right does not extend to having a right touse the Complainant’s trademark as a domain name for the purposes ofestablishing a web site to express such views.
This would equally be the caseregardless of whether the views were laudatory or otherwise.
In paragraph 4(c) of the Policythere is a non-exhaustive list of ways in which the Respondent can establishthat he has rights or legitimate interest in the domain names in issue. In theview of this Administrative Panel, the activities of the Respondent do not fitinto any of the categories. The Respondent is not using the domain names inconnection with any offering of goods or services, bona fide or otherwise. Neither is the Respondent an individual,business, or other organization that has been commonly known by the domainnames or any of them.
This Administrative Panel hasconsidered whether it could be argued that the Respondent is making alegitimate non-commercial or fair use of the domain names, without intent forcommercial gain to misleadingly divert consumers or to tarnish the trademark orservice mark at issue and has concluded that this is not the case either.
Firstly there is the submission ofthe Complainant, supported by the evidence of the print out of the WHOIS searchresults, that the Respondent has offered one of the domain names for sale. Thisindicates that the Respondent is not engaged in a “non-commercial” use of that domainname, and by inference of all three of the domain names in issue. Secondly itis clear that the content of the web site established by the Respondent isdesigned to tarnish the Complainant’s trademark and service mark as detailedbelow.
In the view of this AdministrativePanel the Respondent has no rights or legitimate interests in said domain namesand the Complainant has therefore succeeded in establishing the second elementof the test in paragraph 4(a) of the Policy.
Paragraph 4(b) of the ICANN Policysets out the following examples of circumstances that will be considered by anAdministrative Panel to be evidence of the bad faith registration and use of adomain name viz. circumstances indicating :
(i) that the domain name was registered oracquired primarily for the purpose of selling, renting, or otherwisetransferring the domain name registration to the complainant who is the ownerof the trademark or service mark or to a competitor of that complainant, forvaluable consideration in excess of the domain name registrant’s out-of-pocketcosts directly related to the domain name; or
(ii) the domain name was registered in order toprevent the owner of the trademark or service mark from reflecting the mark ina corresponding domain name, provided that the domain name registrant hasengaged in a pattern of such conduct; or
(iii) the domain name was registered primarilyfor the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the domain nameregistrant intentionally attempted to attract for financial gain, Internetusers to the registrant’s web site or other on-line location, by creating alikelihood of confusion with the complainant’s mark as to the source,sponsorship, affiliation, or endorsement of the registrant’s web site orlocation or of a product or service on the registrant’s web site or location.
Whilethere is no evidence that the Respondent approached the Complainant directlywith an offer to sell any of the domain names, there is evidence that theRespondent has offered the domain name <yukselinsaat.com> for sale on theRegistrar’s WHOIS page. While this is inconsistent with the Respondent’sstatement on the web page at the <yukselinsaat.com> address, that he built theweb site to start a debate because he lost four members of his family incollapsed buildings, this Administrative Panel is sensitive to the fact thatthis may well be the case and has great sympathy with the family of victims ofsuch a disaster.
Nonetheless the fact that the “for sale” statements were posted, amountto circumstances indicating that the domain names were registered oracquired primarily for the purpose of selling, renting, or otherwisetransferring the domain name registrations to the complainant who is the ownerof the trademark or service mark or to a competitor of that complainant, forvaluable consideration in excess of the domain name registrant’s out-of-pocketcosts directly related to the domain name.
Furthermore on the balance of probabilities thisAdministrative Panel does not accept that the said domain names were registeredand are being used by the Respondent to facilitate a debate on the issue ofcollapsed buildings in Turkey. It is noteworthy that only one of the domainnames resolves to a web site viz.<yukselinsaat.com>. Neither <yukselinsaat.net> nor<yukselinsaat.org> resolve to any web site. Even if the Respondentdid want to set up a bona fide gripesite, in the view of this Administrative Panel, he would not be entitled to useany of these domain names in any event as they are virtually identical to theComplainant's trademark. Nonetheless the fact that the Respondentregistered all three gTLD names indicates that he has another motive inholding these registrations. In the view of this Administrative Panel, on thebalance of probabilities, said domainnames were registered and are being used in order to prevent the Complainant,as owner of the trademark or service mark, from reflecting the mark in acorresponding domain name, and by registering the three gTLD names theRespondent has engaged in a pattern of such conduct.
ThisAdministrative Panel therefore finds that the Respondent has registered and isusing said domain names in bad faith.
With specific reference to Paragraphs 4(i) ofthe Policy and 15 of the Rules it is the decision of this Administrative Panelthat the Complainant has established that said domain names <yukselinsaat.com>, <yukselinsaat.net>and <yukselinsaat.org> andeach of them are confusingly similar to the trademark and service mark in whichthe Complainant has rights, that the Respondent has no rights or legitimateinterests in said domain names and that the Respondent has registered and isusing said domain names in bad faith.
This Administrative Panel therefore directsthat said domain names <yukselinsaat.com>,<yukselinsaat.net> and <yukselinsaat.org> shall be transferred to the Complainant.
Dated: May 28, 2002