WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

TRT GENEL MÜDÜRLÜĞÜ (Türkiye Radyo ve Televizyon Kurumu) v. Moniker Online Services LLC / Florian Koerner, SANI Webmarketing GmbH

Case No. D2021-0287

1. The Parties

The Complainant is TRT GENEL MÜDÜRLÜĞÜ (Türkiye Radyo ve Televizyon Kurumu), Turkey, represented by TURKTICARET.NET YAZILIM HIZMETLERİ SANAYI VE TICARET A.S., Turkey.

The Respondent is Moniker Online Services LLC, United States of America / Florian Koerner, SANI Webmarketing GmbH, Austria, self-represented.

2. The Domain Name and Registrar

The disputed domain name <trtspor.com> is registered with Moniker Online Services, LLC (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 29, 2021. On January 29, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 1, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on February 2, 2021, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on February 2, 2021.

The Center verified that the Complaint, together with the amendment to 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on February 3, 2021. In accordance with the Rules, paragraph 5, the due date for Response was February 23, 2021. The Response was filed with the Center on February 18, 2021.

The Center appointed Luca Barbero as the sole panelist in this matter on February 24, 2021. 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 Complainant is TRT GENEL MÜDÜRLÜĞÜ, a national public broadcaster established in 1964 in Ankara, Turkey. Known as TNT until 1990, the Complainant became the sole provider of radio and television in Turkey with 15 TV channels broadcasting in Europe, Asia, Africa, and Australia. One of the channels, called “TRT SPOR”, is the second most watched TV station and primarily focuses on news broadcast programs.

The Complainant is the owner of trademark registrations for TRTSPOR including the following, as per trademark certificate submitted as annexes to the Complaint: Turkey trademark registration n. 2018 22319 for TRTSPOR figurative mark, registered on July 3, 2018, in international classes 38 and 41;

The Complainant also owns 260 domain names that include the term “TRT” and in particular the domain name <trtspor.com.tr> registered on May 26, 2009, and used to promote the services of the Complainant. Other pertinent domain names include: <trtspor.web.tr>, <trtspor.tv>, <trtspor.eu>, and <trtspor.net.tr>.

The disputed domain name <trtspor.com> was registered by the Respondent in 2018 and is pointed to an undeveloped website publishing the following message: “International sports website coming soon”.

5. Parties’ Contentions

A. Complainant

The Complainant contends that disputed domain name <trtspor.com> is identical to the trademark TRTSPOR in which the Complainant has rights as it reproduces the trademark in its entirety with the mere addition of the generic Top-Level Domain “.com”.

With reference to rights or legitimate interests in respect of the disputed domain name, the Complainant states that though the disputed domain name resolves to an undeveloped website publishing the message “International sports website coming soon”, the Respondent very likely registered the domain name with the Complainant in mind, in order to generate revenue, misleadingly divert consumers and tarnish the trademark at issue.

The Complainant further highlights that the Respondent in not commonly known by the disputed domain name nor has he acquired any trademark or service mark rights.

With reference to the circumstances evidencing bad faith, the Complainant indicates that the Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services and has deliberately chosen the disputed domain name to intentionally attract, Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation or endorsement of the website.

The Complainant emphasizes that the Respondent also adopted a Privacy shield to conceal his identity which must be considered as an indication of bad faith registration and also as an attempt to make impossible any contact with the Respondent aimed at dissuading him from using the disputed domain name.

B. Respondent

On February 18, 2021, the Respondent replied to the Complainants contentions as follows:
With regards to the disputed domain name being identical or confusingly similar to the trademark, the Respondent claims he conducted a search on the EUIPO and WIPO websites, and noticed the term “trtspor” had not been registered either in the European Union nor in the rest of the world and though it may be a protected trademark in Turkey, it is not protected Europe-wide or worldwide.

With reference to rights or legitimate interests in respect of the disputed domain name, the Respondent states that his company purchased the disputed domain name in good faith on a domain marketplace in 2018 and had plans to develop a website using that domain name.

He further contends that he has never been interested in selling the disputed domain name and, since 2018, he never received a request from the Complainant to purchase the disputed domain name.

Moreover, the Respondent asserts that a traffic log search, on the disputed domain name, showed that there was virtually no type-in traffic and assumes that people in Turkey are not interested in entering the disputed domain name in their browsers because they assume it is related to the Complainant.

With reference to the circumstances evidencing bad faith, the Respondent emphasizes that the disputed domain was purchased in good faith to develop a website in the future, but that the fact that the website is still not active does not mean the intentions changed over time. He further contends that it is very common to buy “good domains” when they are available and develop the projects much later.

The Respondent also disagrees with the Complainant’s statement regarding the impossibility of contacting the Respondent and points out that the WhoIs contact details contained a valid email address.

6. Discussion and Findings

According to paragraph 15(a) of the Rules: “A Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.” Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:

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

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

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

A. Identical or Confusingly Similar

The Panel finds that the Complainant has established rights over the trademark TRTSPOR in Turkey based on the trademark registrations cited under section 4 above and the related trademark certificates submitted as annex 5 to the Complaint.

As highlighted in section 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), the first element functions primarily as a standing requirement, and the threshold test for confusing similarity typically involves a side-by-side comparison of the domain name and the textual components of the relevant trademark to assess whether the mark is recognizable within the disputed domain name.

In the case at hand, the Complainant’s trademark TRTSPOR is entirely reproduced in the disputed domain name, with the mere addition of the Top-Level Domain “.com”, which is commonly disregarded under the first element confusing similarity test (section 1.11 of the WIPO Overview 3.0).

Therefore, the Panel finds that the Complainant has proven that the disputed domain name is identical to a trademark in which the Complainant has established rights according to paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

The Complainant must show that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent may establish a right or legitimate interest in the disputed domain name by demonstrating in accordance with paragraph 4(c) of the Policy any of the following:

“(i) before any notice to you 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 (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 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.”

It is well-established that the burden of proof lies on the complainant. However, satisfying the burden of proving a lack of the respondent’s rights or legitimate interests in respect of the domain name according to paragraph 4(a)(ii) of the Policy is potentially onerous, since proving a negative can be difficult considering such information is often primarily within the knowledge or control of the respondent.

Accordingly, in line with previous UDRP decisions, it is sufficient that the complainant show a prima facie case that the respondent lacks rights or legitimate interests in the disputed domain name in order to shift the burden of production on the respondent. If the respondent fails to demonstrate rights or legitimate interests in the disputed domain name in accordance with paragraph 4(c) of the Policy or on any other basis, the complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy (see, e.g., Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003 0455; Banco Itau S.A. v. Laercio Teixeira, WIPO Case No. D2007-0912; Accor v. Eren Atesmen, WIPO Case No. D2009-0701).

In the case at hand, the Complainant has made a prima facie case and the Respondent has failed to raise any convincing circumstance that could demonstrate, pursuant to paragraph 4(c) of the Policy, any rights or legitimate interests in the disputed domain name.

According to the evidence on record, there is no relationship between the Complainant and the Respondent and the Complainant has not authorized the Respondent to register or use its trademark or the disputed domain name. Furthermore, there is no indication before the Panel that the Respondent is commonly known by the disputed domain name, has made preparations to use the disputed domain name in connection with a bona fide offering of goods or services, or that it intends to make a legitimate, noncommercial or fair use of the disputed domain name and the Respondent has not provided in the Response any evidence to the contrary.

As mentioned above, the disputed domain name has been pointed to an undeveloped website, publishing the following message: “International sports website coming soon”. The Panel notes that the Respondent has failed to provide any convincing explanation as to the reason why it selected the disputed domain name, besides that of the plan to set up a website in 2018.

In view of the above-described use of the disputed domain name, the Panel finds that the Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use without intent for commercial gain to misleadingly divert consumers or to tarnish the Complainant’s trademark.

Therefore, the Panel finds that the Complainant has proven that the Respondent has no rights or legitimate interests in the disputed domain name according to paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

Paragraph 4(a)(iii) of the Policy requires that the Complainant prove that the disputed domain name was registered and is being used by the Respondent in bad faith.

The Panel finds that, in light of the prior registration and use of the Complainant’s trademark TRTSPOR in connection with the Complainant’s broadcasting services and of the identity of the disputed domain name with the Complainant’s trademark, the Respondent very likely registered the disputed domain name having the Complainant’s trademark in mind. Whereas the Respondent claims to have conducted preliminary searches regarding the status of “trtspor”, a cursory search on Google for the Complainant’s trademark yields pages of results pertaining to the Complainant, the first page of which only features links associated with the Complainant. Further, it stretches credulity to believe the Respondent coincidentally registered a domain name for a sports website with the term “trtspor” and not, for instance, “trtsport”. Lastly, the Respondent fails to provide any reason for incorporating the element “trt” in the domain name and omitting the “t” from “sport”, the intended subject-area of the website at the disputed domain name.

According to the statement of the Respondent, the disputed domain name was registered in good faith, to set up a website in 2018, which to date still has not been developed. The Panel notes that the Respondent has failed to provide any convincing explanation as to the reason why it selected the disputed domain name, besides the plan to set up a website. The Panel also notes that by indicating in the landing page corresponding to the domain name the message “International sports website coming soon” suggests that the Respondent registered the disputed domain name in bad faith.

The disputed domain name, at the time of this Decision, does not resolve to an active website. However, it is well-established that passive holding of a domain name could amount to bad faith under certain circumstances as decided, i.a., in Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003.

According to section 3.3 of the WIPO Overview 3.0, “From the inception of the UDRP, panelists have found that the non-use of a domain name (including a blank or “coming soon” page) would not prevent a finding of bad faith under the doctrine of passive holding. While panelists will look at the totality of the circumstances in each case, factors that have been considered relevant in applying the passive holding doctrine include: (i) the degree of distinctiveness or reputation of the complainant’s mark, (ii) the failure of the respondent to submit a response or to provide any evidence of actual or contemplated good-faith use, (iii) the respondent’s concealing its identity or use of false contact details (noted to be in breach of its registration agreement), and (iv) the implausibility of any good faith use to which the domain name may be put”.

In the case at hand, in view of the Respondent’s registration of a domain name identical to the Complainant’s trademark and the absence of any documented rights or legitimate interests of the Respondent in the disputed domain name, the Panel finds that the Respondent’s lack of use of the disputed domain name also amounts to bad faith.

Therefore, the Panel finds that the Complainant has also proven that the Respondent registered and has been using the disputed domain name in bad faith according to 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 <trtspor.com> be transferred to the Complainant.

Luca Barbero
Sole Panelist
Date: March 15, 2021