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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Turkcell Iletisim Hizmetleri A.S. v. kara tara

Case No. D2010-1184

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 kara tara of Ankara, Turkey.

2. The Disputed Domain Name and Registrar

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

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 19, 2010. On July 19, 2010, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the disputed domain name. On July 19, 2010, GoDaddy.com, Inc. 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 July 21, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was August 10, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 11, 2010.

The Center appointed Selma Ünlü as the sole panelist in this matter on August 16, 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.

4. Factual Background

The evidence attached to the Complaint reveals the following:

(1) The Complainant is one of the first and leading GSM-based mobile communications companies of Turkey, established in 1994 and since then offering a variety of mobile communications services both nationally and internationally under the TURKCELL mark also constituting the trade name of the Complainant.

(2) The Complainant is the registered owner of a number of TURKCELL trademarks with the Turkish Patent Institute since September 9, 1996 and the <turkcell.com> and <turkcell.com.tr> domain names since April 17, 1996 and November 10, 1996 respectively.

(3) As a result of its both national and international ongoing use since 1994, the Complainant has acquired a significant goodwill in the TURKCELL mark and the TURKCELL mark enjoys an overwhelming well-known status in Turkey especially with respect to mobile communication services.

Panel’s observation on the case file reveals the following:

(1) The disputed domain name <turkcell.biz> is registered in the name of the Respondent since September 2009.

(2) The disputed domain name does not relate to a business in relation to the Respondent whereas it is seen that sponsored links to web sites within a wide range of commercial areas including mobile communication are presented within the Respondent’s web site.

(3) The contact information of the Respondent as indicated in the publicly available WhoIs information and provided by the registrar indicates that the Respondent is apparently located in Turkey.

5. Parties’ Contentions

A. Complainant

The Complainant requests the Panel to issue a decision transferring the disputed domain name to the Complainant on the following grounds:

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

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

(iii) The disputed domain name was registered and is being used in bad faith.

(i). Identical or Confusingly Similar

The Complainant alleges that the disputed domain name is identical to its well-known TURKCELL trademark as it wholly contains this mark. The Complainant further argues that the “.biz” generic top level domain suffix used in the disputed domain name is not sufficient to overcome the confusing similarity between this domain name and the trademark by relying on VAT Holding AG v.Vat.com, WIPO Case No. D2000-0607 and Rolls-Royce PLC v. Hallofpain, WIPO Case No. D2000-1709.

(ii). Rights or Legitimate Interests

The Complainant alleges that the Respondent has no rights or legitimate interests in respect of the disputed domain name since the Respondent has no relationship with or permission from the Complainant for the use of its service mark. Further, the disputed domain name is not a mark by which the Respondent became commonly known and the disputed domain name was registered by the Respondent despite its knowledge of the Complainant’s established rights in the TURKCELL mark.

(iii). Registered and Used in Bad Faith

The Complainant argues that with respect to its well-known status, the Respondent was well aware of the Complainant’s TURKCELL mark and has registered the disputed domain name in bad faith for the purpose of its sale, rental or transfer which can be perceived by the fact that the Respondent’s web site is an inactive one, not relating to a business created by the Respondent, however providing the Respondent or a third party revenue through web traffic and sponsored results which has been found to indicate bad faith use in many UDRP decisions.

The Complainant further alleges that the false identity and contact information provided during registration of the disputed domain name, the apparent knowledge of the Respondent of the Complainant’s well-known trademark and the Respondent’s will to infringe the Complainant’s established rights clearly present the Respondent’s bad faith while registering the disputed domain name.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

According to paragraph 15(a) of the Rules, the Panel shall decide the Complaint 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 is satisfied:

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

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

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

Paragraph 4(a) of the Policy states that the Complainant has the burden of proving that all these requirements are fulfilled.

A. Identical or Confusingly Similar

Based on the evidence submitted by the Complainant containing trademark and domain name registrations in relation to TURKCELL, the Panel finds that the Complainant has successfully demonstrated registered rights on the TURKCELL mark. Further, as the disputed domain name wholly contains the TURKCELL mark, the disputed domain name needs to be regarded as at least confusingly similar to such mark. (See, e.g., Dr. Ing. H.c.F. Porsche AG v. Vasily Terkin, WIPO Case No. D2003-0888, Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr., WIPO Case No. D2000-1525)

Further the Panel finds that the TLD suffix is irrelevant when comparing a disputed domain name to a trademark as the addition of generic top level domains (gTLDs) or country code top level domains (ccTLDs) does not affect the confusing similarity or identity between the domain name and the trademarks in issue. Therefore the TLD suffix “.biz” is ignored as commonly accepted by former decisions. (Ahmanson Land Company v. Vince Curtis, WIPO Case No. D2000-0859; Monty and Pat Roberts, Inc. v. J. Bartell, WIPO Case No. D2000-0300; and J.P. Morgan & Co., Incorporated and Morgan Guaranty Trust Company of New York v. Resource Marketing, WIPO Case No. D2000-0035). Accordingly the Panel finds that the confusing similarity cannot be overcome by the use of the “.biz” generic top level domain name suffix in the disputed domain name.

Consequently, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s mark and the first requirement under paragraph 4(a) of the Policy is satisfied.

B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy rules that, a respondent may establish its rights or legitimate interests in the domain name, among other circumstances, by showing any of the following elements:

“(i) before any notice to you [the Respondent] of the dispute, your 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) you [the Respondent] (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or

(iii) you [the Respondent] are 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.”

The burden of proof rests with the Complainant who must demonstrate a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. Should there be no rebuttal by the Respondent, the Complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy. The Respondent may, by, inter alia, showing one of the above elements, prove rights or legitimate interests in the disputed domain name.

The Panel finds that the Complainant has made a prima facie case as to the Respondent’s lack of right or legitimate interest in the disputed domain name and that the Respondent has not provided evidence of the circumstances of the type specified in paragraph 4(c) of the Policy, or of any other circumstances giving rise to a right to or legitimate interest in the disputed domain name. Thus, the Panel finds that the Respondent is unable to adduce evidence to show that it has rights or legitimate interests in the disputed domain name.

Also the Panel confirms that – when it visited the disputed domain name on August 25, 2010 – there was no provided content on the web site under the disputed domain name. It rather appears that the disputed domain name is being passively held.

Thus, based on the content of the case file and its own findings, the Panel concludes that the use of TURKCELL trademark has not been authorized or licensed to the Respondent, the disputed domain name does not apparently correspond to the Respondent’s name by which it has become commonly known and the Respondent cannot be regarded as using the disputed domain name in connection with a bona fide offering of goods or services.

Hence, as the rights or legitimate interests of the Respondent could not be duly demonstrated under paragraph 4(c) of the Policy, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy enumerates four, non-exclusive, circumstances that, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:

“(i) circumstances indicating that you [the respondent] have registered or have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or

(ii) you [the respondent] have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you [the respondent] have engaged in a pattern of such conduct; or

(iii) you [the respondent] have registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, you [the respondent] have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.”

The foregoing considered, the Panel is of the opinion that with regard to the overwhelming well-known status of the Complainant’s mark, with the Respondent seemingly being located in Turkey, the Respondent most likely was aware of the Complainant’s existence.

Based on this, the Panel considers that the disputed domain name was registered primarily either;

i) for the purpose of transfering it to the Complainant, by taking into account the lack of any content related to a business created by the Respondent, or,

ii) for the purpose of diverting Internet users to the Respondent’s web site to create web traffic through the Complainant’s well-known mark, by taking account of the sponsored links presented in the web site. Such intention to divert Internet users would tend to indicate the Respondent’s bad faith (See also, e.g., NVT Birmingham, LLC d/b/a CBS 42 WIAT-TV v. ZJ, WIPO Case No. D2007-1079)

Hence, the Panel is convinced that the disputed domain name has been registered and is being used in bad faith and that the Complainant has satisfied the third element under paragraph 4(a)(iii) of the Policy.

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 disputed domain name <turkcell.biz> be transferred to the Complainant.

Selma Ünlü
Sole Panelist
Dated: August 29, 2010

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