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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Akbank Turk A.S. v. Mr. Arda Alpar

Case No. D2008-0574

 

1. The Parties

Complainant is Akbank Turk A.S. of Istanbul, Turkey, represented by Istanbul Patent & Trademark Consultancy Ltd., Turkey.

Respondent is Mr. Arda Alpar of Istanbul, Turkey.

 

2. The Domain Name and Registrar

The disputed domain name <akbank.info> is registered with DomainName, Inc. d/b/a domainname.com.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 14, 2008. On April 15, 2008, the Center transmitted by email to DomainName, Inc. d/b/a domainname.com a request for registrar verification in connection with the domain name at issue. On April 21, 2008, DomainName, Inc. d/b/a domainname.com transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).

In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on May 7, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was May 27, 2008. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on May 28, 2008.

The Center appointed Nasser A. Khasawneh as the sole panelist in this matter on June 4, 2008. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.

 

4. Factual Background

Complainant Akbank is a top tier bank and offers a wide range of retail and commercial banking products and other financial services in Turkey and abroad. Complainant’s bank was founded in 1947 and is currently headquartered in Istanbul, and has an extensive branch network throughout Turkey. The shares of Akbank are traded on the Istanbul Stock Exchange.

Akbank holds a considerable number of trade and service marks registrations in Turkey and in other jurisdictions in addition to International registrations under the Madrid Protocol. The oldest of the Turkish registrations dates back to an application date of 1996.

Respondent first registered the disputed domain name <akbank.info> on February 11, 2006. The disputed domain name <akbank.info> currently resolves to a parking page with sponsored advertising links.1 Some of those links use the Akbank name and apparently promote financial services of third parties.

 

5. Parties’ Contentions

A. Complainant

Complainant seeks transfer of the disputed domain name on the basis of the following contentions:

1. That Complainant owns an extensive portfolio of trademarks including the AKBANK trademarks and service marks, that Complainant is now the largest bank in Turkey, is widely known in Turkey, regionally and internationally, and that the disputed domain name is identical to Complainant’s marks;

2. That Respondent has no rights or legitimate interest in the disputed domain name, that Respondent has not been commonly known by the name, that the only interest that Respondent may have is “to somehow create a connection to the Complainant and its trademark AKBANK,” and that the only way Respondent would have a right to use the disputed domain name would be if Complainant had specifically granted that right, which Complainant did not grant;

3. That Respondent, as a Turkish citizen, is clearly aware of Complainant’s extensive goodwill and reputation in its AKBANK trade and service marks;

4. That Respondent registered and is using the disputed domain name in bad faith, and that Respondent registered the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the owner of the trademark for valuable consideration in excess of the domain name registrant’s out-of-pocket costs for the following reasons:

a. The website to which the disputed domain resolves is inactive, and this fact alone supports bad faith use and registration;

b. Respondent is located in Turkey, so it would be difficult to imagine that he would not have been aware of the trademarks of Complainant, and this is a strong indication that Respondent intends to create an association with Complainant’s trademark;

c. That registering a domain name of a well-known trademark is necessarily in bad faith where there were no legitimate plans for permissible uses.

5. That Respondent registered the disputed domain name in order to prevent Complainant from reflecting the mark in a corresponding domain name, as Respondent has constructive knowledge of the trademark rights of Complainant in the disputed domain name;

6. That any use of the disputed domain name by Respondent would necessarily result in infringing the trademark rights of Complainant.

B. Respondent

Respondent did not reply to Complainant’s contentions.

 

6. Discussion and Findings

The Rules require the Panel to decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. Rules, paragraph 15(a). Complainant must establish each element of paragraph 4(a) of the Policy, namely:

(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;

(ii) Respondent has no rights or legitimate interests in respect of the domain name; and

(iii) the disputed domain name has been registered and is being used in bad faith.

Complainant must establish these elements even if Respondent does not reply. The Vanguard Group, Inc. v. Lorna Kang, WIPO Case No. D2002-1064. In the absence of a Reply, the Panel may also accept as true the factual allegations in the Complaint. E.g., ThyssenKrupp USA, Inc. v. Richard Giardini, WIPO Case No. D2001-1425 (citing Talk City, Inc. v. Michael Robertson, WIPO Case No. D2000-0009).

A. Identical or Confusingly Similar

The Panel finds that the disputed domain name is identical or confusingly similar to Complainant’s registered AKBANK trademarks. The disputed domain name <akbank.info> is identical to Complainant’s trademarks as panels disregard the gTLD suffix in evaluating confusing similarity. E.g., VAT Holding AG v. Vat.com, WIPO Case No. D2000-0607; Shangri-La International Hotel Management Limited v. NetIncome Ventures Inc., WIPO Case No. D2006-1315.

The requirements in paragraph 4(a)(i) of the Policy therefore are fulfilled.

B. Rights or Legitimate Interests

The Panel also concludes that Respondent has no rights or legitimate interests in the disputed domain name.

The Policy contains a non-exhaustive list of circumstances that may demonstrate when a respondent has rights or legitimate interests in a domain name. The list includes: (1) using the domain name in connection with a bona fide offering of goods and services; (2) being commonly known by the domain name; or (3) making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers. Policy, paragraphs 4(c)(i) – (iii).

A complainant must show a prima facie case that a respondent lacks rights or legitimate interests. E.g., Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455. The absence of rights or legitimate interests is established if a complainant makes out a prima facie case and the respondent enters no response. Id., (citing De Agostini S.p.A. v. Marco Cialone, WIPO Case No. DTV2002-0005).

Complainant avers that Respondent is not commonly known by the disputed domain name, that as a Turkish citizen, Respondent necessarily knew of Complainant’s marks, intended to trade on their notoriety, and that Respondent was without any license or authorization by Complainant.

Since Respondent did not submit a Reply, the Panel accepts as true Complainant’s specific factual averments that: Respondent is not commonly known by the disputed domain name; that Respondent was and is aware of Complainant’s marks; and that Respondent lacked license or authorization by Complainant to use its marks in the disputed domain name.

The Panel cannot, however, accept Complainant’s averment that Respondent’s website was inactive. As noted above, the disputed domain name currently resolves to a parking page which presents sponsored link advertising.

The Panel infers that Respondent receives revenues when it diverts traffic through link advertisements on Respondent’s website. E.g., The Bear Stearns Companies Inc. v. Darryl Pope, WIPO Case No. D2007-0593 (“[t]he Panel is free to infer that Respondent is likely receiving some pecuniary benefit . . . in consideration of directing traffic to that site” (citing COMSAT Corporation v. Ronald Isaacs, WIPO Case No. D2004-1082)). See Fat Face Holdings Ltd v. Belize Domain WHOIS Service Lt, WIPO Case No. D2007-0626; Sanofi-aventis v. Montanya Ltd, WIPO Case No. D2006-1079.

The Panel therefore finds that Respondent’s use of the disputed domain name demonstrates Respondent’s lack of a legitimate noncommercial interest in, or fair use of, the domain name. E.g., Pfizer Inc. v. jg a/k/a Josh Green, WIPO Case No. D2004-0784.

The Panel also finds there is no bona fide offering of goods or services by Respondent.

Respondent’s commercial activities undertaken through use of the disputed domain name are neither fair use nor bona fide under the Policy. See, e.g., America Online, Inc. v. Xianfeng Fu, WIPO Case No. D2000-1374, cited in Hoffmann-La Roche Inc. v. Onlinetamiflu.com, WIPO Case No. D2007-1806.

Filing no response, Respondent has not invoked any of the circumstances of paragraph 4(c) of the Policy to support the existence of its rights or legitimate interests in the disputed domain name.

Accordingly, the Panel finds that paragraph 4(a)(ii) of the Policy is satisfied

C. Registered and Used in Bad Faith

The Panel finds that the third element of paragraph 4(a) of the Policy, bad faith registration and bad faith use, is also established.

Using a domain name to intentionally attract Internet users, for commercial gain, by creating a likelihood of confusion, may be evidence of bad faith registration and use. Policy, paragraph 4(b)(iv). See, e.g., LґOrйal, Biotherm, Lancфme Parfums et Beautй & Cie v. Unasi, Inc, WIPO Case No. D2005-0623. Panels may draw inferences about bad faith registration or use in light of the circumstances, such as whether there is no response to the complaint, concealment of identity, and a lack of conceivable good faith uses for the domain name. Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003.

The Panel finds that Respondent initially registered the disputed domain name in bad faith, which is supported by the fact that Respondent appears to have provided incomplete address information to the registrar. Telstra Corp., supra, cited in Oxygen Media, LLC v. Primary Source, WIPO Case No. D2000-0362.

The Panel infers that Respondent was aware of Complainant’s trademarks at the time of registration of the disputed domain name. The Panel further infers that Respondent, a Turkish resident, registered the disputed domain name intending to trade on the fame of Complainant’s trademark, which was registered and used for many years before the registration of the disputed domain name. The Panel concludes that in so doing, Respondent deliberately attempted to attract Internet users to its website for commercial gain, by creating a likelihood of confusion with Complainant’s mark.

Presently available online screen shots from Respondent’s website show that the disputed domain name is used to promote sales of Complainant’s competitors in the financial services and banking industry. The Panel concludes that this activity demonstrates bad faith use by Respondent. Pfizer Inc. v. jg a/k/a Josh Green, supra (citing Google, Inc v. wwwgoogle.com and Jimmy Siavesh Behain, WIPO Case No. D2000-1240; Casio Keisanki Kabushiki (Casio Computer Co., Ltd.) v. Jongchan Kim, WIPO Case No. D2003-0400; Downstream Technologies, LLC v. Bartels System GmbH, WIPO Case No. D2003-0088).

The Panel therefore concludes that the disputed domain name was registered and is being used by Respondent in bad faith under paragraph 4(b)(iv) of the Policy.

 

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <akbank.info> be transferred to Complainant.


Nasser A. Khasawneh
Sole Panelist

Date: June 18, 2008


1 The Panel has undertaken limited factual research by visiting Respondent’s website. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions section 4.5.

 

Источник информации: https://internet-law.ru/intlaw/udrp/2008/d2008-0574.html

 

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