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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Turkcell Iletisim Hizmetleri A.S. v. SUN ADMIN SUN ADMIN SUN ADMIN

Case No. D2008-1588

1. The Parties

The Complainant is Turkcell Iletisim Hizmetleri A.S., of Istanbul, Turkey, represented by Istanbul Patent & Trademark Consultancy Ltd., of Istanbul, Turkey.

The Respondent is SUN ADMIN SUN ADMIN SUN ADMIN, of Istanbul, Turkey.

2. The Domain Name and Registrar

The disputed domain name <turkcell.info> is registered with OnlineNic, Inc. d/b/a China-Channel.com.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 18, 2008. On October 21, 2008, the Center transmitted by email to OnlineNic, Inc. d/b/a China-Channel.com a request for registrar verification in connection with the disputed domain name. On October 22, 2008 (with further clarification received on October 28, 2008), OnlineNic, Inc. d/b/a China-Channel.com transmitted by email to the Center its verification response confirming that the 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” or “UDRP”), 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 the Respondent of the Complaint, and the proceedings commenced on November 13, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was December 3, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 4, 2008.

The Center appointed Nasser A. Khasawneh as the sole panelist in this matter on December 16, 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

The Complainant is a well-known GSM-based mobile communications company that has existed in Turkey since February of 1994 and which later signed a 25 year GSM license agreement with the Turkish Ministry of Transportation in April of 1998. As of July of 2000, the Complainant’s shares were listed on both the Istanbul Stock Exchange and the New York Stock Exchange.

As shown by Annex 3 of the Complaint, the Complainant operates its websites under its main domain names at “www.turkcell.com” and “www.turkcell.com.tr”, the latter of which the Complainant has held since November 10, 1996. Additionally, as evidenced in its Complaint, the Complainant’s service marks TURKCELL have been registered as of September 9, 1996 with the Turkish Patent Office (Registration Nos. 173130 and 174691) regarding “communications/telecommunications services via portable phones” under class 38. The Complainant also owns a number of other trade and service marks both in Turkey and abroad that are evidenced in its Complaint.

As evidenced by an email from the registrar OnlineNic, Inc., the record for the disputed domain name <turkcell.info> was created on June 12, 2006 by the Respondent.

5. Parties’ Contentions

A. Complainant

In its Complaint and the accompanying Annexes, the Complainant claims that it has used the mark TURKCELL in connection with a wide variety of goods and services and as a result the public has come to perceive a number of goods and services offered under the TURKCELL mark as emanating from, being affiliated with or being endorsed by the Complainant.

In arguing its case under paragraph 4 of the Policy, the Complainant notes that TURKCELL is the Complainant’s main trademark and the name of its business and that they have continuously conducted all of their trading operations, advertisements and promotions under the TURKCELL mark since 1994. The Complainant further states that the disputed domain name <turkcell.info> wholly incorporates the Complainant’s TURKCELL mark and as a result the disputed domain name is identical to the Complainant’s mark.

The Complainant notes that the company’s trade and service marks had been registered well before the creation date of the Respondent’s domain name <turkcell.info> as well as the fact that they have been the legal owner of the domain name <turkcell.com.tr> since November 10, 1996. As a result, the Complainant avers that the first requirement of paragraph 4 of the Policy has been met.

The Complainant further alleges under paragraph 4(a)(ii) that the Respondent has no existing rights in the TURKCELL mark and that <turkcell.info> was registered to confuse Internet users and not for any legitimate noncommercial or fair use purpose. The Complainant states that the Respondent was not granted any rights or licensed by Turkcell to use its marks or any domain name incorporating the mark. The Complainant notes that it has prior rights in the TURKCELL mark that have priority over the Respondent’s registration of the disputed domain name <turkcell.info>. As a result of the Complainant’s scope of business and community involvement both in Turkey and abroad, the Complainant contends that the Respondent must have known of the goodwill and reputational value of the TURKCELL name at the time the disputed domain name was registered.

To the Complainant’s knowledge, the Respondent has acquired no trademark or service mark rights in the disputed domain name or the TURKCELL mark and the Respondent is not commonly known by or associated with the TURKCELL mark or by the disputed domain name. Furthermore, the Respondent is not an institution and has never been licensed or granted any authority to use the TURCKELL mark. As a result the Complainant argues that the Respondent has no rights or legitimate interests in the disputed domain name.

In satisfying the final element under paragraph 4 of the Policy, the Complainant alleges that the Respondent registered the mark possibly to confuse Internet users, and/or to sell the disputed domain name back to the Complainant at a profit.

The Complainant states that an email was sent to the Respondent on June 12, 2008 regarding the transfer of the domain name <turkcell.info>, however the Respondent did not reply or initiate any action with respect to Complainant’s email. The Complainant further notes that there is not presently a web site under the disputed domain name and as a result the Respondent has made no substantive use of <turkcell.info> whether in connection with a business or otherwise. Additionally, there does not appear to be any intent or preparations for the Respondent to use the disputed domain name in the future. As a result, the Complainant contends that no such future use could be construed to legitimize the Respondent’s actions.

As stated above, the Complainant contends that the Respondent had knowledge of the Turkcell business, trademarks and reputation. The Complainant argues that this constructive and actual knowledge of the Complainant’s marks prior to the registration of <turkcell.info> is strong evidence of the fact that the disputed domain name was registered in bad faith in conjunction with the passive holding of the disputed domain name. Since the Respondent knew of Turkcell at the time of registration, the Complainant argues that the Respondent’s act of registering <turkcell.info>, which wholly incorporated the Complainant’s mark, is evidence of bad faith since the Respondent knew they would unable to use the disputed domain name without violating the Complainant’s rights.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

Under the Rules, a panel is required to render its decision “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)).

Additionally, a Complainant must establish each element of paragraph 4(a) of the Policy, which is as follows:

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

(ii) the 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.

The complainant must establish these elements regardless of whether the respondent replies to the complaint. The Vanguard Group, Inc. v. Lorna Kang, WIPO Case No. D2002-1064.

A. Identical or Confusingly Similar

As evidenced by the relevant Annexes, the Complainant initially registered the TURKCELL mark in 1996 and thereafter registered a number of other similar trade and service marks in the same name. Additionally the Complainant had used the trademark prior to the date of registration as part of its trade name. The Panel finds that the Complainant has evidenced through its trade and service marks, its existing domain names, as well as its services both in Turkey and internationally, that it is the legitimate owner of the TURKCELL mark and through its long use has acquired a certain reputation and goodwill associated with that mark.

The Panel finds that Respondent’s disputed domain name <turkcell.info> wholly incorporates the Complainant’s trademark TURKCELL. The disputed domain name <turkcell.info> is identical to Complainant’s TURKCELL trademark, and the Panel disregards the addition of the suffix “.info” as an irrelevant distinction that does not alter the likelihood of confusion. VAT Holding AG v. Vat.com, WIPO Case No. D2000-0607; Rolls-Royce PLC v. Hallofpain, WIPO Case No. D2000-1709.

In light of the evidence, the Panel finds that the disputed domain name is identical and confusingly similar to a trademark in which the Complainant has rights.

B. Rights or Legitimate Interests

Under paragraph 4(a)(ii) of the Policy, the complainant is required to make a prima facie case that the respondent lacks rights or legitimate interests in the disputed domain name. Once that case has been made, the respondent must demonstrate that it has rights or legitimate interests in the disputed domain name. See Belupo d.d. v. WACHEM d.o.o, WIPO Case No. D2004-0110; Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455. Paragraph 4(c) of the Policy contains a non-exhaustive list of circumstances that the respondent may use to demonstrate it possesses rights or legitimate interests in a domain name. The absence of rights or legitimate interests can also be 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).

In its Complaint and the accompanying Annexes, the Complainant has shown that it has rights to the trademark and trade name TURKCELL both in Turkey and abroad. Furthermore, it appears that the Complainant has never licensed or authorized the Respondent to utilize the TURKCELL mark. The Respondent has not shown that it has any previous association or rights under the TURKCELL mark, association with the Complainant, or that the Respondent is currently known under that name. The Complainant further contends, and the Panel finds plausible, that since the Respondent was a Turkish citizen and/or operating out of a Turkish address, they could not have been unaware of the reputation and goodwill associated with the TURKCELL mark. See Scania CV AB v. Leif Westlye, WIPO Case No. D2000-0169.

The Respondent has not entered any response to Complainant’s allegations. As a result the Respondent has not proactively shown under paragraph 4(c), or under any other circumstances, that it has any rights or legitimate interests in the disputed domain name. The disputed domain name currently leads to a blank web page and appears to be inactive. Due to the fact that <turkcell.info> has been registered since June of 2006 and the Respondent has not yet made any use or evident preparations to use the disputed domain name, the Panel can infer from the record before it that the Respondent has not evidenced a legitimate commercial or bona fide use of the disputed domain name. Euromarket Designs, Inc. v. Domain For Sale VMI, WIPO Case No. D2000-1195.

In the absence of the Respondent’s rebuttals to these claims, the Panel accepts as true the Complainant’s contentions that the Respondent was not commonly known by the disputed domain name, knew of the Complainant’s mark, and lacked authority to use the Complainant’s mark. Additionally the Respondent has not evidenced any existing intentions or preparations to use the disputed domain name in general as well as in a way that would not violate the Complainant’s rights in the TURCKELL trade and service marks.

As a result the Panel finds that the Complainant has satisfied the requirement of paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy provides a number of instances that constitute bad faith registration and use. In addition to those non-exhaustive circumstances, a Panel is also able to draw inferences about bad faith registration and use in light of the facts and circumstances of the case. Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003.

In this case, it does not appear that many of the examples under paragraph 4(b) of the Policy have been met as the Respondent has not initiated or responded to the Complainant’s request to transfer the domain name for an amount exceeding its out-of-pocket costs. Additionally there is little evidence in the present record that the Respondent was seeking to attract to its website Internet users for commercial gain, or that the Respondent’s intentions were to prevent the Complainant from using the disputed domain name in the future. After reviewing the disputed domain name <turkcell.info>, the Panel has found that the Respondent has done little with the disputed domain name and the web page is blank.

Many previous panels have found bad faith even when the domain holder has taken no active steps to sell the domain name or to contact the trademark holder. In instances of passive holding, circumstances that can evidence bad faith include the complainant having a well-known trademark, concealment of the domain holder’s identity, lack of response to the complaint, as well as the impossibility of a conceivable good-faith use for the domain name.

In the present case, the Complainant has shown that Turkcell is one of the largest GSM operators in Europe and has a significant presence in Turkey as well as throughout the region and abroad. Additionally, the Complainant has stated and provided evidence that Turkcell has continuously advertised its services in Turkey, and are involved with the local community in Turkey as well.

In such a case the Panel can reasonably conclude, based on Complainant’s widely-known mark in Turkey and the fact that the Registrar data shows that the Respondent is located in Istanbul, that the Respondent registered the disputed domain name with knowledge of the Complainant’s rights and interests. Jupiters Limited v. Aaron Hall, WIPO Case No. D2000-0574. Additionally, the Respondent has offered no reason why the disputed domain name was chosen nor has it demonstrated a legitimate purpose for utilizing the disputed domain name. As a result, the Panel is able to draw an inference, on a balance of probabilities, that the Respondent had hoped to capitalize off the reputation of the Complainant’s well-known trade and service marks.

The Respondent has also made no active use of the disputed domain name. In a number of previous cases, passive holding of a domain name was construed to fall within the meaning of paragraph 4(a)(iii) of the Policy, evidencing bad faith use in light of the circumstances. Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003.

In the present case the Complainant’s marks have a strong reputation and are widely advertized, the Respondent had registered the disputed domain name after the Complainant’s marks had been registered, the Respondent has presented no evidence of any actual or contemplated good faith use of <turkcell.info>, and the Respondent has presented minimal contact details and address information. The Panel believes that these facts and circumstances are enough to constitute, on a balance of probabilities, that such passive holding of the disputed domain name is indicative of bad faith registration and use.

In that respect, the Panel finds that the Complainant has met the requirements of paragraph 4(a)(iii) 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 disputed domain name <turkcell.info> be transferred to the Complainant.


Nasser Ali Khasawneh
Sole Panelist

Dated: December 30, 2008

 

Источник информации: https://internet-law.ru/intlaw/udrp/2008/d2008-1588.html

 

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