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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

DoДџan Gazetecilik Anonim Sirketi v. Metin Polat

Case No. D2009-0224

1. The Parties

The Complainant is DoДџan Gazetecilik Anonim Sirketi, Istanbul, Turkey, represented by Ankara Patent Bureau Ltd., Ankara, Turkey.

The Respondent is Metin Polat, Istanbul, Turkey.

2. The Domain Name and Registrar

The disputed domain name <postagazetesi.net> is registered with Melbourne IT Ltd.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on February 19, 2009. On February 20, 2009, the Center transmitted by email to Melbourne IT Ltd a request for registrar verification in connection with the disputed domain name. On February 24, 2009, Melbourne IT Ltd 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 February 27, 2009. In accordance with the Rules, Paragraph 5(a), the due date for Response was March 19, 2009. The Respondent did not submit any Response. Accordingly, the Center notified the Respondent`s default on March 20, 2009.

The Center appointed GГ¶khan GГ¶kçe as the sole panelist in this matter on March 31, 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.

No further submissions were received by the Center or the Panel. The date scheduled for the issuance of the Panel`s decision is April 14, 2009.

Finally, in accordance with Paragraph 11 of the Policy, the language of the administrative proceeding will be the language of the registration agreement (i.e. English) since the Parties have not agreed otherwise and since the registration agreement, which the present dispute is based upon, does not provide otherwise.

4. Factual Background

The Complainant is one of the largest media companies under DoДџan Sirketler Grubu A.S. which is Turkey`s leading media group. The Complainant is primarily active in newspaper and magazine publishing and releases seven daily newspapers namely, Hurriyet, Milliyet, Radikal, Fanatik, Referans, Turkish daily News and Posta.

The Complainant offers a broad selection of newspapers appealing to a wide audience and enjoys 40% market share of circulation in Turkish newspaper media with an average circulation of 4.1 million of newspapers daily. The Complainant is well known by the general public, its newspapers are recognised to be the Complainant`s product and provide an attractive platform for advertisers.

Posta is one of the Complainant`s dailies and is a mass market newspaper that has achieved its own loyal readership in the past ten years and is the highest selling newspaper in Turkey.

The Complainant has registered and uses the trademark POSTA for a comprehensive list of good and services. The trademark POSTA was registered at the Turkish Patent Institute on May 31, 1995 and renewed it in 2005, and DUNDEN BUGUNE POSTA on January 31, 2003.

The Respondent is an individual who registered the disputed domain name <postagazetesi.net>. The Respondent registered the disputed domain name on June 9, 2005.

5. Parties` Contentions

A. Complainant

In accordance with Paragraph 4 of the Policy, the Complainant requests that the domain name <postagazetesi.net> should be transferred to the Complainant.

The Complainant submits the grounds for these proceedings are listed in Paragraph 4(a) of the Policy.

Identical or Confusingly Similar

The Complainant registered its trademark POSTA with Turkish Patent Institute on May 31, 1995 and renewed it in 2005. Furthermore, the Complainant submits that its trademark POSTA is a well known trademark and Posta is a daily newspaper commonly known by the public.

The Complainant contends that the disputed domain name <postagazetesi.net> is identical or confusingly similar to the Complainant`s trademark POSTA as the distinctive part of the domain name is identical to the Complainant`s trademark.

Rights or Legitimate Interests

The Complainant submits that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant contends the Respondent is not using the domain name in connection with a bona fide offering of goods or services, is not commonly known by the disputed domain name and is not using the domain name for legitimate non-commercial or fair use.

The Complainant asserts that significant sums of money have been invested in the promotion and achieving distinctiveness of "Posta Gazetesi" establishing a reputation. As "Posta Gazetesi" is one of the best selling dailies, it is common knowledge that Posta is a newspaper published by DoДџan Gazetecilik which is part of DoДџan Sirketler Grubu A.S. and therefore the public identify and associate "Posta Gazetesi" with the Complainant. The Complainant has achieved recognition and the use of the name Posta Gazetesi is recognised by the public as indicating association with the Complainant.

The Complainant notes that the disputed domain name redirects users to an online news paper that clearly displays the words Posta Gazetesi and contains misleading information. It is submitted that the Respondent does not any express any grounds for legitimate or fair use and that, the disputed domain name redirects the user to a website containing information criticising the Complainant. The Complainant states this clearly demonstrates the Respondent`s intention and lack of rights.

Registered and Used in Bad Faith

The Complainant notes that it registered its trademark POSTA long before the disputed domain name which was registered in 2005. The Complainant submits that the disputed domain name has been registered in bad faith as the Respondent had knowledge of the Complainant`s ownership rights in the trademark POSTA at the time of registration of the domain name. The Complainant relies on this fact and asserts that the Respondent knew that the disputed domain name was identical to the Complainant`s trademark which is an indication of registration in bad faith.

The Complainant suggests that the Respondent knew that the disputed domain name was identical or confusingly similar to the Complainant and it is with that purpose that the registration was made.

The Complainant submits that the Respondent registered the domain name for the purpose of confusing Internet users and to divert them to an unofficial website. The Complainant points to the fact the disputed domain name <postagazetesi.net> will cause the Complainant`s customers confusion as they would expect the disputed domain name to resolve in the Complainant`s well known newspaper but the disputed domain name resolves in an online newspaper that is not published by the Complainant. The online newspaper clearly displays the words "Posta Gazetesi", and the Complainant submits this causes further confusion and the Internet users are likely to conclude that the online newspaper which contains misleading information is hosted by the Complainant, which is not the case.

The Complainant states that there is nothing to suggest good faith and the disputed domain name was registered and is being used in bad faith.

B. Respondent

The Respondent did not reply to the Complainant`s contentions. Pursuant to Paragraph 5(e) of the Rules, if a Respondent does not submit a Response, in the absence of exceptional circumstances, the Panel shall decide the dispute based upon the complaint.

However, failure to respond in a Policy proceeding does not constitute an admission of any pleaded matter. The Panel will proceed to evaluate Complainant`s evidence and his own examination of Respondent`s website against the requirements of Paragraph 4(a) of the Policy, Stanworth Development Limited v. E Net Marketing Ltd., WIPO Case No. D2007-1228.

6. Discussion and Findings

Paragraph 4(a) of the Policy sets forth the following three elements which the Complainant must prove, during the administrative proceedings, to merit a finding that the domain name of the Respondent be transferred to the Complainant:

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

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

(c) The domain name has been registered and is being used in bad faith.

Pursuant to Paragraph 15(a) of the Rules, the Panel shall 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.

In the absence of a reply from the Respondent the Complainant must still establish the elements of Paragraph 4(a) of the Policy, however the Panel may accept as true factual allegations in the complaint, Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110.

A. Identical or Confusingly Similar

The Policy requires the Complainant to demonstrate that the disputed domain name is identical or confusingly similar to a trademark in which the Complainant has rights.

The Complainant registered its trademark POSTA with Turkish Patent Institute on May 31, 1995 and renewed it in 2005. POSTA is a trademark with figurative elements with the most dominant element being the word POSTA. The Complainant at Annex 3 has provided evidence of ownership of trademark registrations consisting of or including the word POSTA. The Panel therefore accepts that the Complainant is the owner and has exclusive rights in the trademark POSTA, T. Rowe Price Associates, Inc. v. J A Rich, WIPO Case No. D2001-1044.

Before registering a trademark the Turkish Patent Institute carries out an examination and determination that there are no obstacles to registration, the fact that the trademark has been registered demonstrates that there were no absolute grounds for refusal, prior rights and no objections were filed.

The Panel notes that the Complainant has established wide recognition of its Posta newspaper. It is common knowledge in Turkey that the Posta newspaper is published by Complainant and the use of that newspaper name has come to be recognised by the general public as indicating an association with products produced exclusively by the Complainant. The Complainant at Annex 3 has provided evidence that Posta newspaper has been circulated since 1995 and has since enjoyed steady growth and recognition.

Furthermore, the Complainant refers to the following decisions in relation to identity or confusing similarity, Patek Phillippe v. Kupfer Jewelry Inc., WIPO Case No. D2008-1193; Akbank v. Mr. Arda Alpar, WIPO Case No. D2008-0574; Gianni Versace v. Nicolino Colonnelli and Compagnie Gervais Danone v. Xiaole Zhang, WIPO Case No. D2008-0570. The Panel follows the two stage test to be applied under this first element of the UDRP, 1) does the Complainant have rights in the trademark; and 2) is the domain name identical or confusingly similar to the Complainant`s trademark. Therefore once ownership is established the Complainant should establish that the domain name is identical or confusingly similar to a trademark in which the Complainant has rights. There is no doubt that the Complainant owns the trademark POSTA and therefore the first stage of the test is satisfied. Whether the disputed domain name is identical or confusingly similar to a trademark is based on an objective test. It has been stated in several decisions by other UDRP administrative panels that incorporating a trademark in its entirety into a domain name may be sufficient to establish that the domain name is identical or confusingly similar to a registered trademark, Bayerische Motoren Werke AG, Sauber Motorsport AG v. Petaluma Auto Works, WIPO Case No. D2005-0941.

The Panel recognises the Complainant`s rights and concludes that the domain name in issue is identical and confusingly similar to the Complainant`s trademark. The Panel finds that the addition of a generic word after the Complainant`s registered trademark does not adequately distinguish the disputed domain name and that it is likely to increase the likelihood of confusion. The requirements in Paragraph 4(a)(i) of the Policy are fulfilled, consequently, the Panel finds for the Complainant on the first element of the Policy.

B. Rights or Legitimate Interests

The Panel visited <postagazetesi.net> on April 1, 2009 and it resolved to a web page that states there is no DNS server for that domain name and therefore there is no redirection to a site hosted by the Respondent. The Complainant notes that the disputed domain name redirects users to another website at "www.gazeteposta.com" and submits evidence at Annex 3 in the form of print outs from this website. Nonetheless, the Panel notes that currently the Respondent is not making use of the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services and the domain resolves in an inactive website.

In order to satisfy the Policy the Complainant must show a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455. The Complainant submits the Respondent has no rights or legitimate interests and the Respondent has failed to demonstrate legitimate or fair use, the Respondent is not using the domain name in connection with a bona fide offering of goods or services, is not commonly known by the disputed domain name and is not using the domain name for legitimate non-commercial or fair use.

The Panel recognises the Complainant`s reputation in its field of activities and as the Respondent is located in Turkey the Panel is satisfied that it is unlikely that the Respondent would not have known about the Complainant`s trademark. Furthermore the disputed domain name translates to Posta Newspaper and the Panel is satisfied that the Respondent must have known of the Complainants daily Posta newspaper. The Panel finds that this suggests that the Respondent registered the domain name in order to create an association with the Complainant.

The Panel notes that the Respondent has not indicated any circumstances as enumerated in Paragraph 4(c) of the Policy. The Respondent did not file a Response and there is nothing before the Panel to support the existence of the Respondent`s rights in the disputed domain name or that any of the circumstances listed in Paragraph 4(c) of the Policy would apply.

The Complainant has satisfied the requirements of 4(a)(ii) of the Policy and consequently the Panel finds in favour of the Complainant on the second element of the Policy.

C. Registered and Used in Bad Faith

As discussed above, the Respondent`s domain name is confusingly similar to the Complainant`s POSTA trademark which was registered long before the registration of the domain name in dispute. As the Respondent appears to be resident in Turkey the Panel agrees it is unlikely that he was not aware of the Complainant`s rights in the Complainant`s POSTA trademark, furthermore the disputed domain name translates to Posta Newspaper. The Panel is of the opinion that the Respondent had knowledge of the Complainant`s trademark at the time of registration of the disputed domain name and draws an inference of bad faith, Parfums Christian Dior v. Javier Garcia Quintas and Christiandior.net, WIPO Case No. D2000-0226.

The Panel finds that the Respondent`s lack of Response further suggests bad faith, Awesome Kids LLC and/or Awesome Kids L.L.C v. Selvay Communications, WIPO Case No. D2001-0210. Furthermore, the Panel draws an inference of bad faith registration as the Respondent is not using the domain and it remains inactive.

It would appear that the Respondent has changed use of the disputed domain name since receipt of the Complaint as the Complainant has provided evidence of the use of the domain name and that it redirected to another site namely, "www.gazeteposta.net". However upon visiting the site it currently remains dormant and is not being used. This indicates bad faith and demonstrates an intention to mislead the Panel which further suggests the Respondent`s bad faith, Maplin Electronics Limited v. Lee Jeongsoon, WIPO Case No. D2006-0011.

In light of the foregoing, the Panel is of the view that the Respondent has registered and used the disputed domain name 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 <postagazetesi.net> be transferred to the Complainant.

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GГ¶khan GГ¶kçe
Sole Panelist

Dated: April 14, 2009