The Complainant is Turkcell Iletisim Hizmetleri A.S. of Tepebasi, Istanbul, Turkey, represented by Istanbul Patent & Trademark Consultancy Ltd., Turkey.
The Respondents are Hey Travel and Baris Meletlioglu both of Istanbul, Turkey.
The disputed domain names <seyahatcell.com>, <turkcellbiletcell.com>
<turkcellbilet.com>, <turkcellotel.com>, <turkcellseyahat.com>, <turkcelltatil.com> are registered with Tucows Inc.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 3, 2010 for the domain name <turkcellseyahat.com>. On February 3, 2010, the Center transmitted by email to Tucows Inc. a request for registrar verification in connection with the disputed domain name <turkcellseyahat.com>. On February 3, 2010, Tucows Inc. transmitted by email to the Center its verification response confirming that the Respondent, Mr. Meletlioglu is listed as the registrant of the disputed domain name <turkcellseyahat.com> 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, Mr. Meletlioglu of the Complaint, and the proceedings commenced on February 8, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was February 28, 2010. On February 26, 2010 the Complainant filed supplemental submissions for the addition of the following disputed domain names to the proceedings: <seyahatcell.com>, <turkcellbiletcell.com>, <turkcellbilet.com>, <turkcellotel.com>, and <turkcelltatil.com>.
On February 26, 2010, the Center transmitted by email to Tucows Inc. a further request for registrar verification in connection with the disputed domain names <turkcelltatil.com>, <turkcellbiletcell.com>, <turkcellbilet.com>, <turkcellotel.com> and <seyahatcell.com>. On March 1, 2010, Tucows Inc. transmitted by email to the Center its verification response confirming that the Respondent, Mr. Meletlioglu, is listed as the registrant disputed domain names <turkcelltatil.com>, <turkcellbiletcell.com>, <turkcellbilet.com>, <turkcellotel.com> and the Respondent, Hey Travel, is the registrant of the disputed domain name <seyahatcell.com> and providing the contact details.
Due to the addition of the above domain names to the proceedings the Response due date was extended to March 11, 2010.
On February 26, 2010 the Center received an informal email communication from the Respondent, Mr. Meletlioglu. However the Respondents did not submit any formal Response.
The Center appointed Kaya Köklü as the sole panelist in this matter on March 23, 2010. 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.
The date scheduled for the issuance of the Panel's decision was April 6, 2010.
In accordance with the Rules, paragraph 11, and since the Parties have not agreed otherwise, the language of the administrative proceedings is the language of the Registration Agreement (i.e. English).
The Complainant is a leading GSM operator in Turkey. The company was established in 1994 and its shares are listed on the Istanbul and the New York Stock Exchange.
The Complainant is a widely-known company in Turkey, mainly providing a large range of telecommunication services.
The Complainant is the main sponsor of the Turkish National Soccer Team and the official sponsor of the Turkish National Basketball Team. In addition, the Turkish premier soccer league itself is sponsored by the Complainant and is now officially named “TURKCELL Süperlig”.
As shown in the Complaint, the Complainant is the registered owner of several TURKCELL trademarks, the first two ones registered with the Turkish Patent Institute as of September 9, 1996 (renewed in 2006) followed by the registration of several figurative trademarks in 1998 and 2001.
As evidenced by Complaint Annex 12, the Turkish Patent Institute recognized in 2007 the sign TURKCELL in combination with a figurative sign as a famous trademark in Turkey.
In addition to the Turkish trademarks, the Complainant is also the owner of a TURKCELL Community trademark, which was registered on January 4, 2002 and a TURKCELL United States trademark, registered on January 20, 2004.
Further to its TURKCELL trademarks, the Complainant has established since 2001, a trademark family consisting of a series of Turkish trademarks comprising a generic term together with “cell” as a suffix. As evidenced by the Supplemental Filing of February 26, 2010, the Complainant is the registered owner of more than 100 Turkish trademarks with “cell” as a suffix.
In addition, the Complainant holds and operates various Internet sites including “www.turkcell.com” and “www.turkcell.com.tr”.
Finally, it is mentioned that Turkcell is used by the Complainant as its commonly known trade name.
The disputed domain names were created on the following dates:
<seyahatcell.com> created on May 11, 2007;
<turkcelltatil.com> created on June 4, 2009;
<turkcellseyahat.com> created on June 4, 2009;
<turkcellbiletcell.com> created on February 8, 2010;
<turkcellbilet.com> created on February 8, 2010;
<turkcellotel.com> created on February 14, 2010.
There was no content provided under these domain names, when the Panel visited the websites on April 2, 2010.
The Complainant alleges that it has more than 30 million subscribers and is the third largest GSM operator in Europe. The Complainant sets forth that it uses the mark TURKCELL as well its trademark family comprising the sign CELL in connection with a huge variety of services.
The Complainant argues that its TURKCELL trademarks as well as its trademark family comprising the sign CELL are well recognized brands among the Turkish population and are clearly understood by consumers as signs for services provided by the Complainant.
The Complainant claims the transfer of the disputed domain names and argues that (i) the disputed domain names are identical or at least confusing similar to the famous trademarks registered by the Complainant, (ii) the Respondents have no rights or legitimate interests in respect of the disputed domain names and (iii) the Respondents have registered the disputed domain names in bad faith.
In particular, the Complainant argues that it never granted a permission or license to the Respondents to use the trademarks TURKCELL or the suffix “cell” as the distinctive part of its trademark family. In addition, the Complainant alleges that the Respondents have never used the signs TURKCELL or CELL in connection with a bona fide offering of goods and services.
As an indication of the Respondents' bad faith, the Complainant further refers to an email received from the Respondent, Mr. Meletlioglu, who offered to start negotiations on the transfer of the disputed domain names to the Complainant.
The Respondents did not formally reply to the Complainant's contentions.
However, the Respondent, Mr. Meletlioglu, sent an informal email to the Center on February 26, 2010. In this email, the Respondent, Mr. Meletlioglu alleges that the disputed domain name <turkcellseyahat.com> has been registered for noncommercial purposes only. The Respondent, Mr. Meletlioglu asserts that the content will relate to “ethnical worship places (like monasteries or churches) in Turkey”, but admits that the Internet site is currently under construction.
A preliminary procedural issue which arises for consideration is whether it is appropriate for the Complainant to have brought this Complaint in respect of multiple domain names. Paragraph 3(c) of the Rules provides that “The complaint may relate to more than one domain name, provided that the domain names are registered by the same domain-name holder.”
Further, paragraph 1 of the Rules defines Respondent “as the holder of a domain-name registration against which a complaint is initiated”. See Kimberly-Clark Corporation v. N/A, Po Ser and N/A, Hu Lim, WIPO Case No. D2010-1345 where the panel held that:
“The use of the word ‘holder' rather than ‘registrant' suggests that the ‘holder' of a domain name may be someone other than the registrant of it. Indeed, this must be so because there are situations in which the registrant of a domain name is not in fact the person who holds the true interest in the domain name.”
[…]
“Another instance of the situation where the ‘holder' of the disputed domain name includes someone other than the registrant of record is where the registrant is in some way under the control of another person. In that situation, it seems appropriate to consider the other (i.e. the controlling) person as a holder of the disputed domain name. A number of panels deciding cases under the Policy have permitted a single complaint in respect of multiple domain names for which the registrants were not the same person, where the circumstances suggested that the registrants (being the named respondents) were controlled by a single entity – see, e.g., Asset Marketing Systems, LLC v. SmartBuy Corporation, Chan Organization, Mitchell de la Cruz, Gongju Jung et. al., WIPO Case No. D2004-0492 (different registrants/respondents “related and under common control”); and Dr. Ing. h.c.F. Porsche AG v. Kentech, Inc. a.k.a. Helois Lab a.k.a. Orion Web a.k.a. Titan Net a.k.a. Panda Ventures a.k.a. Spiral Matrix and Domain Purchase, NOLDC, Inc., WIPO Case No. D2005-0890 (different domain names/respondents ‘controlled by the same entity').”
The Panel is of the view that it is possible for the Registrants of record to be, in fact, one and the same entity. Previous UDRP panels have found such situations to exist. See Kimberly-Clark Corporation v. N/A, Po Ser and N/A, Hu Lim supra and the decisions cited therein.
In the current Complaint and as confirmed by the registrar in its verification replies to the Center, the disputed domain names <turkcelltatil.com>, <turkcellseyahat.com>, <turkcellbiletcell.com>, <turkcellbilet.com> and <turkcellotel.com> are registered to the Respondent “Mr. Meletlioglu”. The disputed domain name <seyahatcell.com> is registered to the Respondent “Hey Travel”. The Panel has noted that the administrative contact of the domain name <seyahatcell.com> is a Mr. Meletlioglu of Istanbul Turkey utilizing the same email address as that of the Registrant in the other five disputed domain names.
Further, as evidenced by Annex 1 to the Supplemental Filing of February 26, 2010, the Respondent contacted the legal representatives of the Complainant regarding a possible transfer of the disputed domain names to the Complainant. In its email, the Respondent offered to enter into a project partnership or to start negotiations concerning the transfer of all disputed domain names. Furthermore, the Respondent indicated in his email that he is the registered owner of comparable domain names incorporating the names of the Complainant's main competitors Vodafone and AVEA in Turkey, like “www.vodafoneseyahat.com” or “www.aveaseyahat.com”.
In its request for consolidation, the Complainant asserts that these circumstances establish that the registrants of record are one and the same entity. In the absence of any evidence from the Respondents to the contrary, this Panel is willing to find that there is a single entity that has practical control over the disputed domain names. Accordingly, this Panel finds that this single Complaint is properly brought and notified against both Respondents, despite the fact that the registrant of record for the domain names is different. For practical reasons, the Panel will henceforth refer to both Respondents as “Respondent”.
According to paragraph 15(a) of the Rules, the Panel shall make a decision in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable and on the basis of the Complaint where no Response has been submitted.
In accordance with paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements are satisfied:
(1) The domain name is identical or confusingly similar to the trademark in which the Complainant has rights; and
(2) The Respondent has no rights or legitimate interests in respect of the domain name; and
(3) The domain name has been registered and is being used in bad faith.
Paragraph 4(a) of the Policy states that the Complainant bears the burden of proving that all these requirements are fulfilled, even if the Respondent has not formally replied to the Complaint, Stanworth Development Limited v. E Net Marketing Ltd., WIPO Case No. D2007-1228.
In the event of a lack of a response, the Panel may – as appropriate — accept the provided factual allegations in the Complaint as true, Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110.
In this regard, it is mentioned that an independent research by visiting the Internet site linked to the disputed domain names has been performed by the Panel on April 2, 2010. The competence of the Panel to perform such independent research is in line with previous panel decisions, e.g. Hesco Bastion Limited v. The Trading Force Limited WIPO Case No. D2002-1038.
The Panel finds that the disputed domain names are confusingly similar to the Complainant's trademarks.
First, the Panel confirms that the Complainant has satisfied the threshold requirement of having trademark rights regarding the sign TURKCELL as well as regards the sign CELL as part of a trademark family.
It is non-contested that the Complainant owns several TURKCELL trademarks, which are partly even recognized as famous by the Turkish Patent Institute since 2007.
Furthermore, the Complainant has provided sufficient evidence that it has established a well-known trademark family comprising generic terms with the suffix “cell”. As evidenced by the Supplemental Filing, the Complainant is the owner of more than 100 Turkish trademarks consisting of a generic term in connection with the suffix “cell”, e.g. “bizimcell”, “cepcell”, “datacell” and “infocell”.
Although not identical, the disputed domain names <turkcelltatil.com>; <turkcellseyahat.com>; <turkcellbiletcell.com>; <turkcellbilet.com> and <turkcellotel.com> fully incorporate the Complainant's trademark TURKCELL.
The Panel finds that simply adding generic terms like “tatil” (vacation), “seyahat” (holiday trip), “bilet” (ticket) or “otel” (hotel) is not sufficient to distinguish Respondent's domain names from the Complainant's trademarks and, hence, do not exclude the likelihood of confusion. In this regard, the Panel refers to previous UDRP decisions like Yahoo! Inc. and Overture Services, Inc. v. Registrant (187640), a/k/a Gary Lam, a/k/a Birgit Klosterman, a/k/a XC2, a/k/a Robert Chua, a/k/a Registrant WIPO Case No. D2004-0896.
With regard to the disputed domain name <seyahatcell.com>, the Panel finds that there is as well a likelihood of confusion with the Complainant's family trademarks comprising the suffix “cell”. The Complainant has sufficiently demonstrated that it is the registered owner of more than 100 Turkish trademarks comprising the suffix “cell”.
As the suffix “cell” appears in the disputed domain name <seyahatcell.com>, the Panel finds that there is a likelihood of confusion with the Complainant's family trademark CELL as well. This is in particular the case as it is combined with the generic term “seyahat” in the Turkish language (which means “holiday trip” in the English language). By this combination, the domain name <seyahatcell.com> needs to be assessed as confusingly similar to the Complainant's trademark family comprising the suffix “cell”.
Hence, the Panel finds that the first requirement in paragraph 4(a) of the Policy is fulfilled.
The Panel also finds that the Respondent has not demonstrated a right or legitimate interest in the disputed domain names.
While the burden of proof in principle rests with the Complainant, the Panel has recognized that this would result in the impossible task of proving a negative, in particular as requiring the lack of rights or legitimate interests, is primarily within the knowledge of the Respondent. Therefore, the Panel believes that the Complainant is only required to make out a prima facie case in order to meet the requirements in paragraph 4(a)(ii) of the Policy, Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455.
The Panel finds that the Complainant has satisfied this requirement, while the Respondent has failed to demonstrate any right or legitimate interest in the disputed domain names according to the Policy, paragraph 4(a)(ii) and 4(c).
With its Complaint, the Complainant has provided non-contested prima facie evidence that the Respondent has no trademark, license or any other similar right to use the disputed domain names.
As already indicated before, the Panel can confirm that – when it visited the disputed domain names on April 2, 2010 – there was no provided content. It rather appears that the disputed domain names have been passively held.
By not submitting a proper response, the Respondent failed to demonstrate any circumstance that could be brought forward to support a legitimate noncommercial or fair use of the domain name without the intent for commercial gain to misleadingly divert consumers or to tarnish the trademarks at issue.
In the informal email sent by the Respondent to the Center on February 26, 2010, it was simply stated that the disputed domain name <turkcellseyahat.com> will in future be used for noncommercial purposes only. This allegation is neither convincing nor sufficient to show a right or a legitimate interest in the disputed domain names.
The Panel finds that there is no indication that the disputed domain names are used in connection with a bona fide offering of goods and services. In addition, there is no indication that the Respondent has been commonly known by the domain names.
The Panel finds that the Complainant has satisfied the requirements of 4(a)(ii) of the Policy.
The Panels finds that according to the Policy, paragraph 4(b), the Respondent has registered and used the disputed domain names in bad faith.
The Panel is well aware of the notoriety and reputation of the Complainant's trademarks TURKCELL and its family trademarks with the suffix CELL.
In the present case, all disputed domain names obviously refer to the Complainant's trademarks, slightly amended by adding a generic term as a suffix.
In line with several previous decisions, the Panel finds that the registration of domain names incorporating a famous trademark without demonstrating a legitimate interest strongly indicates a registration in bad faith, AT&T Corp. v. John Zuccarini d/b/a Music Wave and RaveClub Berlin, WIPO Case No. D2002-0440; Turkcell Iletisim Hizmetleri A.S. v. GWT, WIPO Case No. D2007-0614.
In particular, the Panel is convinced that the Respondent was aware that a legitimate use of the disputed domain names would not have been possible without infringing the Complainant's trademark rights, Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003.
This assessment is supported by the fact that the Respondent, who is located in Turkey, must have known the Complainant and its famous trademarks at the time of registration of the disputed domain names. This is in particular indicated by the fact that all the disputed domain names have been registered after 2007 (some of them just recently in February 2010), i.e. well after the registration of the relevant trademarks of the Complainant and years after the Complainant started its business and has become the leading GSM operator in Turkey.
The Panel also finds that the registration of more than one domain name (in the present case there are 6 disputed domain names) incorporating the Complainant's trademarks is further evidence for the bad faith of the Respondent, as such registrations are regularly made to harm the Complainant's reputation and to gain legally unjustified commercial benefit only. This assessment is also demonstrated by the fact that the Respondent contacted the legal representatives of the Complainant in order to enter into negotiations about the transfer of the disputed domain names. The Panel is convinced that this attempt by the Respondent was nothing else than the first step to offer the disputed domain names for sale. In light of the Policy, paragraph 4(b)(i), this approach by the Respondent indicates that the disputed domain names have been registered primarily for the purpose of selling or otherwise transferring them to the Complainant for a significant valuable consideration likely exceeding the Respondent's documented out-of-pocket costs related to the disputed domain names, CBS Broadcasting, Inc. v. Gaddor Saidi, WIPO Case No. D2000-0243; Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr., WIPO Case No. D2000-1525.
In this regard, the Panel also believes that the Respondent's lack of a formal Response additionally supports the impression that he has registered the disputed domain names in bad faith without any legitimate interest to use them, Awesome Kids LLC v. Selavy Communications, WIPO Case No. D2001-0210. The Respondent's informal email communication to the Center of February 26, 2010, stating that it is intended to use the domain name <turkcellseyahat.com> for noncommercial purposes only, does not change this impression as this allegation could not convince the Panel of a intended future use in good faith.
All in all, the Panel cannot see based on the current record any possibility of conceiving a good faith use of the disputed domain names by the Respondent.
In the light of the findings above, the Panel is convinced that the disputed domain names were registered and used in bad faith and that the Complainant has satisfied the third element of the Policy, namely 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 names, <seyahatcell.com>; <turkcelltatil.com>; <turkcellseyahat.com>; <turkcellbiletcell.com>; <turkcellbilet.com>; <turkcellotel.com> be transferred to the Complainant.
Kaya Köklü
Sole Panelist
Dated: April 6, 2010