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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Koc Holding A.S. v. Oguz Tufekci

Case No. D2015-1046

1. The Parties

The Complainant is Koc Holding A.S of Istanbul, Turkey, represented by June Intellectual Property Services Inc., Turkey.

The Respondent is Oguz Tufekci of Istanbul, Turkey, self-represented.

2. The Domain Name and Registrar

The disputed domain name <kocgroup.com> is registered with GoDaddy.com, LLC (the "Registrar").

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on June 18, 2015. On June 19, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 19, 2015, the Registrar 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 June 26, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was July 16, 2015. The Respondent filed email communications with the Center on June 26, 2015 and June 28, 2015. The Center notified the parties of the commencement of the Panel appointment process on July 17, 2015. Subsequently, the Respondent filed email communications with the Center on July 17, 2015 and July 20, 2015.

The Center appointed Kaya Köklü as the sole panelist in this matter on July 27, 2015. 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.

In accordance with the Rules, paragraph 11(a), and since the parties have not agreed otherwise, the Panel finds that the language of the administrative proceedings is the language of the Registration Agreement, i.e., English.

4. Factual Background

The Complainant is one of the largest industrial and service groups in Turkey. It ranks as one of the 50 largest publicly traded companies in Europe and among the largest 200 companies in the world. The Complainant has a long history which started with a company foundation by Vehbi Koç on May 31, 1926. It is well-known and enjoys a high reputation around the world, particularly in Turkey.

The Complainant is the owner of the mark KOÇ, which is registered as a word and figurative mark in various jurisdictions, especially in Turkey. According to the provided information in the case file, the earliest trademark application supplied by the Complainant dates back to the year 1999. The Complainant is also the owner of the Turkish trademark for KOÇ GRUBU ("Koç Group" in English), which was applied for on June 27, 2014 and registered on May 25, 2015.

The Complainant further owns and operates various domain names like <koc.com> and <koc.com.tr>.

The disputed domain name was created on October 11, 2004.

The Respondent is an individual from Istanbul, Turkey.

The disputed domain name directs Internet users to a website, which mainly provides information on printing, manufacturing, copying and selling CDs and DVDs.

5. Parties' Contentions

A. Complainant

The Complainant requests the transfer of the disputed domain name.

It is of the opinion of the Complainant that the disputed domain name is confusingly similar to the KOÇ trademark owned by the Complainant.

Furthermore, the Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name. In particular, the Complainant states that it has never granted a license or any other permission to the Respondent to use its trademark KOÇ. The Complainant further alleges that the Respondent has never used and does not intend to use the KOÇ trademark in connection with a bona fide offering of goods and services.

Finally, the Complainant is of the opinion that the Respondent has registered and is using the disputed domain name in bad faith. The Complainant believes that due to the notoriety of the KOÇ trademark in Turkey, the Respondent was or should have been aware of the mark when it registered the disputed domain name.

B. Respondent

The Respondent did not formally reply to the Complainant's contentions.

However, the Center received various email communication from the Respondent in English language.

In essence, the Respondent argues that he uses the trademark KOÇ as an abbreviation for "culture and society organizations group". He argues that he has had the idea 13 years ago and is about to launch a website linked to the disputed domain name soon.

Furthermore, the Respondent refers to the first come, first served rule on domain name registrations and points out that he has spent money and time in the last 10 years to maintain the disputed domain name. Furthermore, he argues that he never intended to use the disputed domain name for commercial purposes or even in bad faith.

6. Discussion and Findings

According to paragraph 14(a) and 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 trademarks 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.

It is further noted that the Panel has taken note of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0") and, where appropriate, will decide consistent with the WIPO Overview 2.0.

A. Identical or Confusingly Similar

The Panel finds that the disputed domain name is confusingly similar to the KOÇ trademark of the Complainant.

First, the Panel confirms that the Complainant has satisfied the threshold requirement of having relevant trademark rights. As evidenced in the Complaint, the Complainant is the owner of various word and figurative trademarks comprising KOÇ in several jurisdictions worldwide, particularly in Turkey.

Although not identical, the disputed domain name fully incorporates the Complainant's KOÇ trademark.

The disputed domain name differs from the KOÇ trademark only by the addition of the generic term "group". In the Panel's view, the addition of such generic term does not negate the confusing similarity between the Complainant's trademark KOÇ and the disputed domain name. The Panel finds that this additional incorporation is purely descriptive and does not create a new distinctiveness separate from the Complainant's KOÇ trademark. On the contrary, the full inclusion of the Complainant's trademark in combination with the generic term "group", which directly refers to the Complainant as a holding and its group of companies, even enhances the false impression that the disputed domain name is officially related to the Complainant. The Panel furthermore finds that the disputed domain name is confusingly similar to the Complainant's KOÇ GRUBU mark, noting that the trademark and the disputed domain name differ only in the word "group"/"grubu" which have identical meanings in English and Turkish. The Panel concludes that the disputed domain name is likely to confuse Internet users in their believing that the disputed domain name is affiliated or endorsed by the Complainant or that the use of the disputed domain name is at least authorized by the Complainant.

In view of the above, the Panel is satisfied that the Complainant has met the requirements under paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

The Panel further finds that the Respondent does not have any rights or legitimate interests in the disputed domain name.

While the burden of proof remains with the Complainant on this point as well, the Panel recognizes that this would often result in the impossible task of proving a negative, in particular as the evidence needed to show the Respondent's lack of rights or legitimate interests is primarily within the knowledge of the Respondent. Therefore, the Panel agrees with prior UDRP panels that the Complainant is required to make out a prima facie case before the burden of production shifts to the Respondent to show that it has rights or legitimate interests in the disputed domain name in order to meet the requirements of 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 file any evidence or convincing argument to demonstrate a right or legitimate interest in the disputed domain name according to the Policy, paragraph 4(a)(ii) and 4(c).

With its Complaint, the Complainant has provided prima facie evidence that the Respondent has no rights or legitimate interests to use the Complainant's KOÇ trademark in the disputed domain name.

The Respondent, however, failed to provide any indication in his Response that he is commonly known by the disputed domain name. Furthermore, the Respondent has failed to demonstrate any of the other nonexclusive circumstances evidencing rights or legitimate interests under the Policy, paragraph 4(c) or any other evidence of a right or legitimate interest in the disputed domain name. Especially, the Respondent has failed to show that the disputed domain name has been or is intended to be used in connection with a bona fide offering of goods or services. In this regard, the Panel considers the Respondent's allegation that the disputed domain name has been created for the sole purpose of establishing a website for a "culture and society organizations group" as not convincing and a simple self-assertion that is not supported with any material evidence. Particularly, the Respondent failed to explain why he directs the disputed domain name to a commercial website of a CD and DVD printing company in Istanbul instead of creating the alleged noncommercial website.

Given the circumstances of this case, the Panel finds it hard to conceive of any use of this trademark in combination with the descriptive term "group" by the Respondent, which would qualify as a legitimate use.

Consequently, 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

The Panel is further convinced that the Respondent has registered and is using the disputed domain name in bad faith.

The Panel is of the opinion that the Respondent intentionally attempted to create a likelihood of confusion among customers with the Complainant's KOÇ trademark, apparently for commercial gain.

The Panel believes that the Respondent must have been well aware of the Complainant's KOÇ trademark when it registered the disputed domain name in October 2004. At the date of creation of the disputed domain name, the Complainant and its trademark KOÇ were already well known and highly recognized particularly in Turkey for already quite a long time.

The assessment of bad faith registration is further supported by the fact that the Respondent provided wrong or at least incomplete contact details in the Whois database, which indicates that he has deliberately tried to conceal his true identity.

Furthermore, the Respondent has tried to mislead Internet users searching for some kind of official information on the Complainant by directing the disputed domain name to a commercial website of a CD and DVD printing company in Turkey. The Panel believes that this kind of use of the disputed domain name constitutes a bad faith use in terms of the Policy.

Taking all facts of the case into consideration, the Panel is of the opinion that this is a typical cybersquatting case, which the UDRP was designed to address.

All in all, the Panel concludes that the disputed domain name was registered and is being used in bad faith and that the Complainant consequently has satisfied the third element of the Policy, namely, paragraph 4(a)(iii) of the Policy.

7. Decision

For 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, <kocgroup.com> be transferred to the Complainant.

Kaya Köklü
Sole Panelist
Date: August 10, 2015

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