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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Turkcell Iletisim Hizmetleri A.S. v. Mr. Suleyman Sahin

Case No. D2008-1625

1. The Parties

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

The Respondent is Mr. Suleyman Sahin, of Eyup, Istanbul, Turkey.

2. The Domain Name and Registrar

The disputed domain name <turkcell.org> is registered with GoDaddy.com, Inc.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 24, 2008. On the same date, the Center transmitted by e-mail to GoDaddy.com, Inc. a request for registrar verification in connection with the disputed domain name. Again on October 24, 2008 GoDaddy.com, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and provided the contact details.

The Center verified that the Complainant 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 14, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was December 30, 2008.

On October 29, 2008, the Respondent applied to the Center for an extension of time in which to file its Response. On December 11, 2008, the Center granted an extension of time first to December 4, 2008, after to December 18, 2008.

The Response was filed with the Center on December 30, 2008.

The Center appointed Mr. Gökhan Gökçe as the sole panelist in this matter on January 12, 2009. 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 leading mobile phone (GSM) operator of Turkey and the company was incorporated in 1994 under the laws of Turkey. By the end of September 2008, the company had 36.3 million subscribers, making it not only a leading operator in Turkey but the third biggest operator in Europe. Turkcell is the first Turkish company to be listed on the New York Stock Exchange, where its shares have been traded since July 11, 2000 along with trading on the Istanbul Stock Exchange and enjoys worldwide recognition.

On April 27, 1998, Turkcell signed a 25 year GSM licence agreement with the Ministry of Transportation of the Republic of Turkey. Since then, Turkcell has been growing and expanding in fields of mobile communication of voice and data.

Turkcell has several trademark registrations before the Turkish Patent Institute containing the word turkcell.

Furthermore, Turkcell has a trademark registration for the word turkcell with the Office for Harmonization in the Internal Market and the United States Patent and Trademark Office.

The Complainant is also the owner of the domain name <turkcell.com> and <turkcell.com.tr>. which is used to access its website used by millions of customers.

Pursuant to information provided by GoDaddy.com, the domain name <turkcell.org> was registered on January 10, 2000 in the name of “Internet Amele Birligi”, which translates from Turkish as “Internet Worker Association”. Although its name suggests it is an association, the Panel has not been provided any official documentation to evidence that it is a registered association under the Law on Associations No. 5253.

The Respondent, Mr. Suleyman Sahin, has been registered as the administrative and technical contact. In light of the foregoing information, the Respondent, is deemed to be the registrant of the domain name.

Pursuant to the information provided by Mr. Suleyman Sahin, he claims that he is an individual who has been actively involved in informatics and is one of the oldest Internet users in Turkey (since May 1993).

Currently, when one visits the “www.turkcell.org” web page, one is forwarded to “http://www.turkistan.net/” which provides information on various dialects of the Turkish language.

5. Parties’ Contentions

A. Complainant

The Complainant contends that the contentious domain name <turkcell.org> should no longer be registered with the Respondent and should be transferred to the Complainant.

The Complainant submits that

(1) the domain name <turkcell.org> is identical or confusingly similar to the trademark or service mark TURKCELL, in which the Complainant has rights;

(2) the Respondent has no right or legitimate interest in respect of the domain name;

(3) the domain name was registered and is being used in bad faith.

Furthermore, the Complainant submits that its trademark TURKCELL is a well-known trademark in Turkey and the Respondent who is a citizen of Turkey, had knowledge of the trademark when he registered the domain name <turkcell.org> in 2000.

Identical or confusingly similar

The Complainant contends that the disputed domain name is identical to Complainant’s trademark as it wholly includes the TURKCELL trademark, which was registered in 1996 well before the establishment of the Respondent’s domain name.

The Complainant submits that since November 10, 1996, it has been the legal owner of the domain name <turkcell.com.tr> which is still being used and TURKCELL is recognized as “well known mark” by the TPI.

It is also noted that TURKCELL is the trade name of the Complainant.

Legitimate right or interest

The Complainant claims that the Respondent has no right or legitimate interest in respect of the disputed domain name. The Complainant contends that the Respondent was never never authorized to use and register its trademark, or to seek the registration of any domain name that incorporated the trademark TURKCELL, and that the Respondent is not affiliated with the Complainant.

The Complainant contends that the Respondent’s use of the domain name is neither legitimate noncommercial use nor fair use. The Complainant points to the fact that visitors of the Respondent’s site “www.turkcell.org” are redirected to “www.turkistan.net”, which displays information on the geographical area of Turkistan, this is not related to the Complainant, its GSM based mobile operator activities or other activities. In fact, the Respondent’s use of the domain name, containing the word turkcell has caused actual confusion.

The Complainant is reliant on Article 4(c) (ii) of the Rules argues inter alia that as the Respondent has acquired no trade mark or service mark, and that the domain in question is not a mark by which the Respondent is commonly known.

Bad faith

The Complainant contends that:

- the domain name has been registered in bad faith as the Respondent, who is a Turkish citizen, had knowledge of ownership rights of the Complainant in the trademark, TURKCELL at the time of registeration of the domain name; the Respondent does not use the domain name, rather it uses a re-direct service forwarding Internet users to “www.turkistan.net”. The Respondent’s passive holding of the domain name is an indication of bad faith.

- the Respondent registered the domain name for the purpose of confusing Internet users and divert them to another website for its own benefit;

- the Respondent suggested several domain names to the Complainant such as <turkcellholding.com>, <turkcellgroup.com.tr> which indicates that the Respondent is aware of the rights of the Complainant in the <turkcell> domain name.

B. Respondent

Identical or confusingly similar

The Respondent states that the word TURKCELL is derived from two generic names “turk” and “cell” and that “turk cell” means Turk leukocyte and represents the Turkish World. It alleges that the disputed domain name is a descriptive term based on two generic words which cannot give rise to an exclusive right to use the expression as a trade mark and or as a domain name.

The Respondent adds that he is familiar with the Turkish world culture and he registered the domain names related with the TURK (history, culture, myths etc.) like <turkistan.net>, <gokturk.org>, <turkeyonline.org>, <turkiyeonline.org> and <travelturkiye.org> etc. The Respondent says that he dedicated himself to the Turkish world demonstarted by his actions, thoughts and life style, and since 1994 he has been working on a project to create a web site related to the Turkish World. He added that he created websites and cooperated with people to ensure and enable easy access to web sites related to the Turkish World such as “www.armory.com/ssahin/”, www.armory.com/ssahin/articles/ and “www.armory.com/ssahin/turk-world/turkic.html”. The Respondent alleges the reason he registered the domain names is to ensure that these domain names are not available to be registered to people with the intention of using them in bad faith against the Turkish nation.

The Respondent submits that the trademark of the Complainant was registered in 2004 with the United States Patent and Trademark Office (USPTO) and in 2003 with the Office for Harmonization in the Internal Market (OHIM). The fact that the disputed domain name was registered by the Respondent in 2000 shows that the Respondent or any other person was within their rights to register the trademark TURKCELL before 2003 in the USA or Europe.

Legitimate right or interest

The Respondent submits that he is one of the oldest Internet users in Turkey and the co-founder of a cyber Internet organization called “Internet Amele Birligi”, which does not seek any profit and which aims to help the development of the Internet in Turkey. He states that he tries to inform people about Turkey and Turkish people about other countries. The Respondent alleges that the disputed domain name is used for the project related to the Turkish world. The Respondent states that he and his organization are known in Turkey as they created a well-known website, “www.sozluk.net”.

The Respondent alleges that the Complainant uses generic names as a brand and that the Complainant even registered trademarks GEOCELL in Georgia, MOLDCELL in Moldova and AZERCELL in Azerbaijan, however it never registered these trademarks in the USA and Europe. The Respondent adds that the Complainant uses the domain name <geocell.com> eventhough the trademark GEOCELL is not owned by them. The Respondent contends that the Complainant use the name TURK to make money from Turkish people, and not only in Turkish people in Turkey but in Azerbaijan, Kazakstan, Uzbekistan, Moldova. The Respondent submits that every Turkish State and autonomous region is described as a “cell” and therefore it is a generic word.

The disputed domain name is part of Turkish World Project which is a non profit project, and has never been engaged in activities in competitiion with the Complainant offering GSM services, phone ssles or any other related services and activities.

Bad faith

The Respondent contends that he never used the disputed domain name to cause damage or distress to the Complainant. He states that if he had intended to cause damage or act in bad faith he would have sold the domain name to the Complainant or to the Complainant’s competitior. He further states that when Complainant had problems with the local groups before the Turkish courts he was presented with plenty of opportunities to sell the domain name and had he been acting in bad faith he would have sold the domain name to a direct competitor of the Complainant.

The Respondent submits that he is not in the Mobile Telecommunications Business, he does not sell any thing related with the disputed domain name and he is not the Complainant’s competitor. He claims that he uses the domain name only for its content related with the Turkish world. Furthermore, he alleges that in Turkey, many portals and individuals use two generic words including TURK such as “www.haberturk.com”, “ www.cellturk.com”, “www.travelturk.com” as it is one of easier behavior for companies to get names with generic names.

The Respondent adds that he never sent spam or advertised on the site which can confuse Internet users. The Respondent further submits that the Complainant never provided any evidence to prove that the domain name was used in bad faith.

6. Discussion and Findings

Pursuant to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name, the Complainant must prove that:

(i) The 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 in respect of the Domain Name; and

(iii) The Domain Name has been registered in bad faith and is being used in bad faith.

A. Identical or Confusingly Similar

The Complainant has provided sufficient evidence of ownership of several national and international trademark registrations consisting of or including the word TURKCELL.

The Panel finds that the disputed domain name is identical or confusingly similar to the trademarks owned by the Complainant with the simple extension of the .org suffix.

The Complainant has relied on six registered trademarks with the Turkish Patent Institute and shown that it owned the trademark TURKCELL at the time the Complaint was lodged and that it is sufficient to establish its standing for the purpose of paragraph 4(a)(i) of the Policy.

The Respondent has submitted that the Complaint should be dismissed because the trademark relies on the fact that it consists solely of generic words which cannot distinguish the goods and services of the Complainant and consequently cannot afford the Complainant any exclusivity.

It has been stated in several decisions by other UDRP administrative panels that incorporating a trademark in its entirety into a domain name can be sufficient to establish that the domain name is identical or confusingly similar to a registered trademark. See Bayerische Motoren Werke AG, Sauber Motorsport AG v. Petaluma Auto Works, WIPO Case No. D2005-0941; Thaigem Global Marketing Limited v. Sanchai Aree, WIPO Case No. D2002-0358; Toyota France and Toyota Motor Corporation v. Computer-Brain, WIPO Case No. D2002-0002; Pfizer, Inc. v. Seocho and Vladimir Snezko, WIPO Case No. D2001-1199. In this context, the Panel does not share the Respondent’s view for the interpretation of this hybrid word. The Panel recognises the Complainant’s reputation in its field of activities and is satisfied with the fact that it is not possible for the Respondent to be unaware of the existence of the trademark TURKCELL. The Complainant established satisfactory evidence that TURKCELL is the Complainant’s trademark which has been granted protection both in national and international jurisdictions.

The Respondent submitted the fact that the disputed domain name was registered by the Respondent in 2000 and that the trademark of the Complainant was registered in 2004 with the United States Patent and Trademark Office and in 2003 with the Office for Harmonization in the Internal Market (OHIM) this demonstrates that the Respondent or any other person had the right to register the trademark of the Complainant in the USA or in Europe. However, it has been held in many WIPO UDRP decisions See Digital Vision, Ltd. v. Advanced Chemill Systems, WIPO Case No. D2001-0827; AB Svenska Spel v. Andrey Zacharov, WIPO Case No. D2003-0527; MADRID 2012, S.A. v. Scott Martin-MadridMan Websites, WIPO Case No. D2003-0598 that it is not necessary for the trademark to have been registered before the domain name, although that fact may, of course, become relevant when it is considered whether a respondent could have registered the domain name in bad faith at a time when no trademark with the same or similar name had been registered.

It is for these reasons, it is the view of this Panel that the domain name < turkcell.org> is confusingly similar to the trademarks owned by the Complainant.

B. Rights or Legitimate Interests

Under the paragraph 4(a)(ii), the Complainant has the burden of establishing that the Respondent has no rights or legitimate interests in respect of the domain name.

By the virtue of paragraph 4(c) of the Policy, it is open to a Respondent to establish its rights or legitimate interest in the domain name, among other circumstances, by showing any of the following elements:

(i) before any notice to the respondent of the dispute, the respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or

(ii) the respondent (as an individual, business, or other organization) has been commonly known by the domain name, even if the respondent has acquired no trademark or service mark rights; or

(iii) the respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

Thus, if the Respondent proves any of these elements or indeed anything else that shows it has a right or interest in the domain name, the Complainant will have failed to discharge its onus and the complaint will be dismissed.

The Panel concludes that the Complainant has adequately demonstrated that none of the three examples set forth in paragraph 4(c) of the Policy apply to the Respondent.

The Panel is satisfied that the Respondent does not possess a right over the name Turkcell and has no connection or affiliation with the Complainant, and that the Respondent was never granted permission to use the domain name.

The Panel concludes that the Respondent is not engaged in legitimate noncommercial or fair use of the domain name. The word turkcell has no apparent relevance to promoting Internet use, nor does the Panel find a compelling basis on the present record for the Respondent’s claim that the disputed domain name in particular is intended for use for a “Turkish World” project. It seems more likely to this Panel that the disputed domain name was registered with the Complainant’s well-known trademark in mind.

The Respondent has attempted to demonstrate a legitimate reason to possess the domain, however, the evidence put forward is not satisfactory. Consequently the Panel finds for the Complainant and concludes that the Respondent does not have rights or legitimate interest in the domain name.

C. Registered and Used in Bad Faith

The Complainant has established that the Respondent has registered and used the domain name in bad faith.

As noted above, the Respondent’s domain name is identical to the Complainant’s well-known trademark and domain name which was in use before the registration of the domain name in dispute. It is unreasonable to impute to the Respondent an awareness of the Complainant’s rights. The Panel, in accordance with previous decisions issued under the Policy, is of the opinion that actual knowledge of the Complainant’s trademark at the time of registration of the disputed domain name is to be considered as an inference of bad faith See Parfums Christian Dior v. Javier Garcia Quintas and Christiandior.net, WIPO Case No. D2000-0226.

It has also been held in many WIPO UDRP decisions (See e.g. General Electric Co. v. Fisher Zvieli, WIPO Case No. D2000-0377; The Sportman’s Guide, Inc. v. John Zuccarini, WIPO Case No. D2001-0617] that the misdirection of traffic to other websites from websites with domain names confusingly similar to a famous trademarks may be evidence of bad faith.

The Respondent does not appear to be achively using the domain name in dispute himself; rather he appears to use a re-direct service forwarding Internet users to a website “www.turkistan.net”. The Panel considers this to be similar to the Respondent’s passive holding of the domain name and prevents the owner of the well-known trademark from reflecting the mark in a corresponding domain name, and accordingly paragraph 4 (a)(iii) of the Policy provides additional support for determination of bad faith registration. The situation is clear to the Panel that the Respondent has not demonstrated any bona fide offering of goods or services using the disputed domain name. Nor has the Panel believes it likely that Respondent shown that it has been known by the disputed domain name. Rather, the Respondent has registered the domain name having the Complainant and its well-known trademark in mind and with the intention of profiting from the reputation of the Complainant’s trademark.

The Panel finds that the Respondent’s domain name was registered and used in bad faith.

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 <turkcell.org> be transferred to the Complainant.

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Gökhan Gökçe
Sole Panelist

Dated: January 26, 2009