WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Yurtici Kargo Servisi v. yavuz yavuzkaya2@hotmail.com

Case No: D2002-0763

The Complainant in this administrative proceeding is YURTICI KARGO SERVISI A.S.

Eski Buyukdere Cd., a company organized and existing under the laws of Turkey, with its principal place of business located at Giz 2000 Plaza, No:7, 80670 Maslak İstanbul, Turkey.

The Respondent is yavuz yavukaya2@hotmail.com 0312256888888, Ankara, bu domain satliktir ankara bu domain satliktir 06600. The administrative and billing Contact provided for the domain name in the is also yavuz yavukaya2@hotmail.com 0312256888888, Ankara, bu domain satliktir ankara bu domain satliktir 06600.

The disputed domain name is <yurticikargo.com>.

The Registrar of the domain name is OnlineNIC, Inc., 2315 26th Ave San Francisco, CA 94116, USA.

3.1 On August 15, 2002, Complainant submitted a Complaint to the World Intellectual Property Organization Arbitration and Mediation Center ("Center") pursuant to the Uniform Domain Name Dispute Resolution Policy ("the Policy") implemented by the Internet Corporation for Assigned Names and Numbers ("ICANN") on October 24, 1999, and under the Rules for the Uniform Domain Name Dispute Resolution Policy, implemented by ICANN on the same date ("the Rules"). The Complaint and Exhibits were received by the Center in e-mail on August 26, 2002, and in hardcopy on August 15, 2002. The Center acknowledged receipt of the Complaint on August 15, 2002.

3.2 On August 15, 2002, a Request for Registrar Verification was transmitted to OnlineNIC. In an e-mail to the Center dated August 26, 2002, OnlineNIC, Inc. confirmed that it is the Registrar for the domain name <yurticikargo.com>.

3.3 Having verified that the Complaint satisfied the formal requirements of the Policy and the Rules, the Center sent on September 10, 2002, a Notification of Complaint and Commencement of Administrative Proceeding to the Complainant’s authorized representative by e-mail; to the Respondent by post and e-mail. The Center advised the Respondent that the Response was due no later than September 30, 2002.

The transmission by post and to the Respondent’s e-mail-address failed.

3.4 No Response was filed by the Respondent within the time specified in the Notification of Complaint. A Notification of Respondent Default was sent by the WIPO Center to the Respondent, and copied to the Complainant, by e-mail and courier on October 1, 2002. As of the date of this decision, no response had been filed by the Respondent.

3.5 Having received no Response from the Respondent within the specified time in the Notification of Complaint, the WIPO Center proceeded to appoint a single-member Panel and invited Dr. Torsten Bettinger to serve as a Panelist in this Administrative Proceeding.

Having received the Panelist’s Declaration of Impartiality and Independence, the Center issued a Notification of Appointment of Administrative Panel on October 16, 2002, and set a decision date, with the Panelist’s deadline for issuing a decision of October 30, 2002.

The Complaint asserted, and provided evidence in support of the following facts:

The Complainant "Yurtici Kargo" is a Turkish company rendering transportion and cargo services since 1982.

The Complainant is the owner of trademark registration No. 99 011341 "Yurtici Kargo" (and device) registered with the Turkish Patent Office on July 14, 1999, for transportation services.

The Respondent is the registrant of the domain name <yurticikargo.com>.

The postal address of the Respondent and its contact details, as contained in the Registrar’s registry, are incorrect.

Prior to the issuing of the Complaint, the Complainant was contacted by a private individual, Yavuz Kaya, who seems to be the real registrant of the domain name at issue. In an e-mail correspondence of June 16 and 23, 2002, Yavuz Kay first requested US$ 10.000 and then US$ 8.000 for the transfer of the domain name <yurticikargo.com>.

The Complainant provides documentary evidence of a website available at "www.yurticikargo.com" on which the domain name <yurticikargo.com> is offered for a sum of US$20.000.

At present the domain name <yurticikargo.com> is directed to the Complainant’s website.

The Complainant asserts that: (1) The domain name <yurticikargo.com> is identical or confusingly similar to the trademark "Yurtici Kargo" in which the Complainant has exclusive rights; that (2) the Respondent has no rights or legitimate interests with respect to the domain name; that (3) the domain name was registered and is being used in bad faith.

The Complainant contends that bad faith can be based on the fact that the domain name was registered or acquired primarily for the purpose of selling or otherwise transferring the domain name to the Complainant for valuable consideration in excess of the Respondent’s out-of-pocket costs directly related to the domain name.

The Complainant requests that the Administrative Panel issue a decision that the domain name <yurticikargo.com> be transferred to the Complainant.

The Respondent did not file a Response to the Complaint.

Pursuant to paragraph 4(a), the Complainant must prove that each of the following three elements are present if it is to prevail:

(i) The Respondent’s "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 with respect to the domain name;" and

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

The Complainant has registered the domain name <yurticikargo.com>. This domain name is identical to Complainant’s trademark "Yurtici Kargo", except that the domain name adds the generic top-level-domain ".com" and leaves out the graphical element.

It is well established that the specific top level of the domain name such as ".org", ".net" or ".com" does not affect the domain name for the purpose of determining whether it is identical or confusingly similar (See for examples WIPO cases Nos D2000-0135, D2000-0429 and D2000-1400). Also the addition of the graphic elements which anyway cannot be reproduced in a domain name is without legal significance in determining similarity in this case (See WIPO Case No. D2001-0032)

The Panel therefore concludes that the domain name is confusingly similar to a trademark or service mark in which the Complainant has prior exclusive rights.

The Respondent has not provided evidence of the type specified in paragraph 4(c) of the Policy, or any other circumstances giving rise to a right or legitimate interest in the Domain Name. The Complainant showed that the Respondent has neither a license nor any other permission to use the name in dispute. In the absence of evidence brought forward by the Respondent or even an assertion as to Respondent’s the rights and interests in the disputed domain name the Panel concluded that Respondent has no rights or legitimate interests in the domain name <yurticikargo.com> and that the requirement of the Policy Paragraph 4(a) (ii) is satisfied.

The fact that the Respondent has chosen not to submit a Response is particularly relevant to the issue of whether the Respondent has registered and is using the domain name in bad faith. Paragraph 14(b) of the Rules provides that, in the absence of exceptional circumstances, a Panel shall draw such inferences as it considers appropriate from the failure of a party to comply with a provision or requirement of the Rules. This Administrative Panel finds there is no exceptional circumstances for the failure of the Respondent to submit a Response. This Administrative Panel draws from this failure the following two inferences: (i) the Respondent does not deny the facts which the Complainant asserts, and (ii) the Respondent does not deny the conclusions which the Complainant asserts can be drawn from these facts.

Nevertheless, this Administrative Panel still has the responsibility of determining which of the Complainant’s assertions are established as facts, and whether the conclusions asserted by the Complainant can be drawn from the established facts (see. WIPO Case No. D2000-0438).

The Complainant provided evidence of facts, which are clearly relevant to the issue of whether the Respondent registered and is using the domain name in bad faith.

Paragraph 4 (b) of the Policy specifies the circumstances that evidence registration in bad faith and provides that this can be asserted, if the domain was registered or acquired primarily for the purpose of selling, renting, or otherwise transferring the domain name registration for a valuable consideration in excess of the Respondent’s out-of-pocket expenses (Paragraph 4 (b) (i)) to the Complainant.

The Panel has no doubt that these prerequisites are fulfilled.

The Respondent’s e-mails of June 19 and and 23, 2002, and the Respondent’s website available at "www.yurticicargo.com" were an obvious offer to sell the Domain Name to the Complainant. The sum of US$ 10.000 (and 8.000) is clearly a sum in excess of the costs for obtaining, registering and maintaining the domain name.

Such use of the domain name is use of the type contemplated by Paragraph 4(b)(i) of the Policy, and accordingly is sufficient ground to persuade the Administrative Panel that the domain name <yurticikargo.com> was registered and being used by the Respondent in bad faith.

The Panel therefore concludes that Respondent registered and is using the domain name <yurticikargo.com> in bad faith and that the requirement of Paragraph 4 (a) (iii) of the Policy is satisfied.

The Panel thus decides that:

1) the domain name <yurticikargo.com> is confusingly similar to the trademark Yurtici Kargo.com (and device);

2) The Respondent has no rights or legitimate interest with respect to the domain name <yurticikargo.com>;

3) the domain name <yurticikargo.com> has been registered and used in bad faith by the Respondent.

Pursuant to paragraph 4(i) of the Policy and pursuant to Paragraph 15 of the Rules, the Panel requires that the Registrar, OnlineNIC, Inc. transfer the name <yurticikargo.com> to the Complainant.