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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Turkcell Iletisim Hizmetleri A.S. v. Tolga Murtezaoglu
Case No. D2008-1589
1. The Parties
The Complainant is Turkcell Iletisim Hizmetleri A.S., of Tepebasi, Istanbul, Turkey, represented by Istanbul Patent & Trademark Consultancy Ltd., Turkey.
The Respondent is Tolga Murtezaoglu, of Kadikoy, Istanbul, Turkey.
2. The Domain Name and Registrar
The disputed domain name <turkcell.net> is registered with Network Solutions, LLC.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the вЂњCenterвЂќ) on October 18, 2008. On October 21, 2008, the Center transmitted by email to Network Solutions, LLC a request for registrar verification in connection with the disputed domain name. On October 21, 2008, Network Solutions, LLC 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 вЂњPolicyвЂќ or вЂњUDRPвЂќ), the Rules for Uniform Domain Name Dispute Resolution Policy (the вЂњRulesвЂќ), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the вЂњSupplemental RulesвЂќ).
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 7, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was November 27, 2008.
On various dates from November 25, 2008, the Center received informal email communications from the Respondent which will be discussed further below. Even though the Respondent has failed to submit a response in compliance with paragraph 5 of the Rules and in hard copy, the Panel has decided to consider all pieces of evidence put forth by the Respondent. The Panel believes that the powers enumerated under paragraph 10 and paragraph 15 of the Rules permits him to consider the arguments of the Respondent despite the fact that it has not met a technical requirement of the Rules.
The Center appointed Nasser A. Khasawneh as the sole panelist in this matter on December 15, 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, 1994 and which later signed a 25 year GSM license agreement with the Turkish Ministry of Transportation in April, 1998. As of July, 2000, the ComplainantвЂ™s shares were listed on both the Istanbul Stock Exchange and the New York Stock Exchange.
As shown by Annex 3, the Complainant operates under its main domain names at the website, вЂњwww.turkcell.comвЂќ and вЂњwww.turkcell.com.trвЂќ, the latter of which the Complainant has held since November 10, 1996. Additionally, as evidenced in its Complaint, the ComplainantвЂ™s service marks TURKCELL have been registered as of September 9, 1996 with the Turkish Patent Office (Registration Nos. 173130 and 174691) on вЂњcommunications/telecommunications services via portable phonesвЂќ 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 Network Solutions, LLC, the record for the disputed domain name of <turkcell.net> was created on December 13, 1998 by the Respondent.
5. PartiesвЂ™ Contentions
The Complainant avers that it is one of the largest GSM operators in both Turkey and Europe with over 30 million subscribers. The Complainant states 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 goods and services offered under the TURKCELL mark as emanating, being affiliated or being endorsed by the Complainant.
In arguing its case under paragraph 4 of the Policy, the Complainant notes that the word вЂњTurkcellвЂќ is the ComplainantвЂ™s main trademark and the name of its business. The Complainant states that all of their trading operations, advertisements and promotions are conducted with the TURKCELL mark, which the Complainant has utilized since 1994. The Complainant further states that the disputed domain name of <turkcell.net> wholly incorporates the ComplainantвЂ™s mark TURKCELL.
The Complainant first registered their mark in 1996, 2 years before the records for the disputed domain name were created. The Complainant further alleges under paragraph 4(a)(ii) of the Policy that the Respondent has no existing rights in the TURKCELL mark and that <turkcell.net> was registered to confuse Internet users and not for any legitimate non-commercial or fair use purpose. The Complainant avers that the Respondent was not granted any rights or licensed by Turkcell to use its marks or any domain name incorporating the mark. To the ComplainantвЂ™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.
Due to the fact that the Complainant has rights in the TURKCELL mark, the Complainant finds it inconceivable that the Respondent can utilize the domain name <turkcell.net> without permission. The Complainant further avers that since the Respondent is shown to be a Turkish citizen located in Turkey, it is likely that the Respondent was aware of Turkcell and the TURKCELL mark since the Complainant contends to be the largest wireless telecommunications services provider in Turkey. In addition to numerous advertisings and business services, the Complainant also has a significant presence in the Turkish community in general.
The Complainant alleges that the Respondent registered the mark possibly to confuse Internet users, as well as to sell the domain name back to the Respondent at a profit. It appears that the Respondent has failed to make a substantive use of the disputed domain name for its business and is utilizing <turkcell.net> to obtain вЂњclick through revenueвЂќ. The Complainant notes that the RespondentвЂ™s attempt to utilize the ComplainantвЂ™s mark with the hope that Internet users would be directed to the RespondentвЂ™s website is not a legitimate interest under the Policy.
In terms of satisfying the third element of paragraph 4 of the Policy, the Complainant notes that the Respondent sent the Complainant an email dated October 2, 2008 offering to sell <turkcell.net> for anywhere between USD50,000 to USD55,000. The Complainant contends that this is evidence that the Respondent registered the domain name for the purpose of selling it as per paragraph 4(b)(i) of the Policy.
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 ComplainantвЂ™s marks prior to the registration of <turkcell.net> is strong evidence of the fact that the domain name was registered in bad faith. Since the Respondent knew of Turkcell at the time of registration, the Complainant argues that the RespondentвЂ™s act of registering <turkcell.net> which wholly incorporated the ComplainantвЂ™s mark is evidence of bad faith since the Respondent knew they would be unable to use the domain name without violating the ComplainantвЂ™s rights.
Due to the fact that the Respondent has wholly incorporated the ComplainantвЂ™s marks into the disputed domain name and has not demonstrated any bona fide offering of goods or services under <turkcell.net>, bad faith is also shown through the RespondentвЂ™s use of the disputed domain name. The Respondent has included superficial links leading to third party commercial sites that purport to relate to the Complainant but instead are used primarily for вЂњclick through revenueвЂќ. The Complainant argues that the use of such a domain name to obtain revenue through web traffic has repeatedly been held to constitute bad faith.
The Respondent did not formally respond to the ComplainantвЂ™s contentions in accordance with paragraph 5 of the Rules, but instead the Respondent has presented their argument in an email.
The Respondent notes that his intention was to design a portal that would cater to all Turkish citizens and Turkish-oriented individuals around the world. Each cell, working in a similar fashion to Facebook, would be used for these individuals to share their culture and discuss various topics. The RespondentвЂ™s goal was to obtain a Turkish network site, hence the <turkcell.net> purchase.
The Respondent further notes that as they had registered the disputed domain name around 10 years ago and prior to the Complainant, they should have the right to keep it. The Respondent also avers that they did not intend to sell <turkcell.net> to the Complainant, but that due to the ComplainantвЂ™s consistent inquiries as well as the possibility of obtaining funds for the RespondentвЂ™s next project, they offered to sell the domain name for anywhere between USD50,000 and USD55,000. The Respondent contends that this amount was based on amounts that previous websites had sold for.
The Respondent further notes that he was contacted first, and that the Complainant insisted that he send an email with an offer for the Complainant to purchase the domain name. The Respondent alleges that he is being painted as an opportunist and that if he had wanted to sell the domain name, the Respondent would not have waited 10 years to do so.
The Respondent acknowledges that he knows the ComplainantвЂ™s company, however he had not intended to use their name to benefit or achieve any profit. The Respondent indicates that he has not intended to host any links or data on this disputed website or to profit in any way, but only to realize his initial network goal. The Respondent notes that the links were included after he had selected the вЂњpark this domainвЂќ option with the Registrar.
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 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 RespondentвЂ™s domain name of <turkcell.net> wholly incorporates the trademark TURKCELL, of which the Complainant holds a number of trademarks in as evidenced above. Additionally the addition of the suffix вЂњ.netвЂќ is an irrelevant distinction that does not alter the likelihood of confusion. Rolls-Royce PLC v. Hallofpain,
WIPO Case No. D2000-1709.
In light of the evidence, the Panel finds that the 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 a case has been made, the Respondent must demonstrate that they have rights or a legitimate interest in the domain name. See Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case D2003-0455; Belupo d.d. v. WACHEM d.o.o,
WIPO Case No. D2004-0110. The Respondent can utilize the non-exhaustive list of circumstances provided under paragraph 4(c) of the Policy, as well as evidence of other circumstances. 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 they have a number of priority rights to the trademark and trade name TURKCELL both in Turkey and abroad. Furthermore, the Complainant has never licensed or authorized the Respondent to utilize the TURKCELL mark. Additionally, the Respondent has not shown that they have any previous association or rights under the TURKCELL mark or trade name as well as with the Complainant.
After reviewing the disputed domain name itself, the Panel notes that the disputed domain name contains no services or goods itself, but instead offers links to third parties that purport to relate to the business of the Complainant. The Respondent notes however that these links were not actively provided by him, but were incorporated once the вЂњpark this domainвЂќ feature on Network Solutions was selected. In both cases however, neither use would create a legitimate right or interest to the domain name.
In the event that the links had been placed by the Respondent, the Panel finds that by creating a domain name that was confusingly similar to the ComplainantвЂ™s business and offering goods through third party links that were similar to those of the Complainant, the website was designed to perpetuate confusion among Internet users and was not a вЂњbona fideвЂќ offering of goods and services. Microsoft Corporation v. Microsof.com aka Tarek Ahmed,
WIPO Case No. D2000-0548.
However in the event that the domain name was simply вЂњparkedвЂќ, the Panel must take into consideration the fact that <turkcell.net> has been registered since December 13, 1998 and the Respondent has not yet made any use or evident preparations to use the domain name . As a result, the Panel is able to infer that the Respondent has not evidenced a legitimate commercial or bona fide use of the domain name. Euromarket Designs, Inc. v. Domain For Sale VMI,
WIPO Case No. D2000-1195.
The Panel accepts that the Complainant and the TURKCELL mark is a well-known mark in both Turkey and the telecommunications industry. The Respondent in this case appears to be a citizen of and/or operating out of Turkey, and acknowledged in his email response that the Respondent is aware of the TURKCELL mark, the company and the extent of Complainant's business. In light of this evidence, the Panel can reasonably conclude that the Respondent would likely have been aware of the reputation and goodwill associated with the TURKCELL mark at the time of registration of <turkcell.net>. See Scania CV AB v. Leif Westlye,
WIPO Case No. D2000-0169. In fact the Respondent has even noted in his email response to the Complainant that the Respondent is aware of the TURKCELLL mark, the company and the extent of the ComplainantвЂ™s business. As a result of this fact as well as the fact that the Respondent was not commonly known under the TURKCELL mark and was not authorized by the Complainant to use the mark, the Panels finds that the Respondent does not have any rights or legitimate use in the disputed domain name.
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. This list is not exhaustive however; in addition to those circumstances, a panel is also able to draw inferences about bad faith registration in light of the facts and circumstances of the case. Telstra Corporation Limited v. Nuclear Marshmallows,
WIPO Case No. D2000-0003.
In the present instance, as evidenced by Annex 13, the Complainant has shown that the Respondent offered to transfer the disputed domain name for an amount between USD50,000 and USD55,000. In the RespondentвЂ™s email allegations, the Respondent has noted that he was propositioned to sell first and that the amount was commensurate with amounts that previous websites had sold for. The Panel finds that the above amount appears to be in excess of the RespondentвЂ™s out-of-pocket costs for the registration and the Respondent has provided no evidence that this figure was an accurate amount. However since the website had been in existence since 1998 and the fact that there appears to be a dispute as to which party offered to transfer the domain name first, the Panel cannot conclude on this aspect alone.
That being said, the Respondent had registered the domain name after the ComplainantвЂ™s initial trademark filing in 1996 and had done so in a way that wholly incorporated the trademark of the Complainant. The Respondent appears to be a Turkish citizen with a Turkish address (as evidenced by the RegistrarвЂ™s documentation) and acknowledged in his email communication the existence and extent of the ComplainantвЂ™s business and marks. As a result, the Panel can legitimately conclude that the Respondent had actual knowledge of the Turkcell business and trademarks and chose to exploit that by incorporating links to other entities providing similar services as the Complainant or passively holding the domain name. Due to the facts above, as well as the particularly strong trademark rights of the Complainant, it is likely that at the time of registration the Respondent knew he could not make a legitimate use of the domain name without infringing the ComplainantвЂ™s rights. Telstra Corporation Limited v. Nuclear Marshmallows, supra. As a result the Panel finds that there was bad faith registration.
In terms of the RespondentвЂ™s use of the disputed domain, in accordance with paragraph 4(b)(iv) of the Policy, it is unclear whether the links to the third party commercial sites had been included by the Respondent or if the links were simply an element of the RegistrarвЂ™s parking of the domain name. In either case, neither use constitutes a bona fide, legitimate or good faith use of the disputed domain name. Based on the lack of preparation to create a network website for Turkish citizens by the Respondent, the Panel is of the opinion that the Respondent has intentionally tried to attract Internet users through confusion to the disputed domain name for commercial gain. The Panel finds that the evidence leading to this conclusion is based on the fact that the domain name wholly includes the trademark of the Complainant as well as the fact that the links provided on the website offer similar GSM and mobile services as the Complainant. Without actual evidence to the contrary, the Panel finds that the preponderance of the evidence indicates that the disputed domain name is also used in bad faith.
For the above reasons, the Panel finds that the Complainant has met the requirements of paragraph 4(a)(iii) of the Policy.
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, <turkcell.net> be transferred to the Complainant.
Nasser A. Khasawneh
Dated: December 29, 2008