WIPO

 

WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Turkcell Iletisim Hizmetleri A.S. v. Celile Gun

Case No. D2008-0128

 

1. The Parties

The Complainant is Turkcell Iletisim Hizmetleri A.S. of Istanbul, Turkey, represented by Istanbul Patent & Trademark Consultancy Ltd., Turkey.

The Respondent is Celile Gun of Istanbul Turkey.

 

2. The Domain Name and Registrar

The disputed domain name <turkcelltechnology.com> is registered with Direct Information Pvt Ltd d/b/a PublicDomainRegistry.com.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 28, 2008. On January 29, 2008, the Center transmitted by email to Direct Information Pvt Ltd d/b/a PublicDomainRegistry.com a request for registrar verification in connection with the domain name at issue. On January 30, 2008, Direct Information Pvt Ltd d/b/a PublicDomainRegistry.com 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”), 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 February 8, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was February 28, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 10, 2008.

The Center appointed Syed Naqiz Shahabuddin as the sole panelist in this matter on March 25, 2008. 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

4.1 The Complainant is a Turkish corporation established in 1994. It is listed on both the Istanbul Stock Exchange and the New York Stock Exchange. The Complainant is also known as “Turkcell”.

4.2 It enjoys the status of being the leading Global System for Mobile communications (“GSM”) operator in Turkey and the third largest GSM operator in Europe having operations, through its group of companies, in Azerbaijan, Kazakhstan, Georgia, Moldova, North Cyprus and Ukraine. As of September 30, 2006, it recorded a base of 30.1 million subscribers.

4.3 Being the leading operator in Turkey and the region, the Complainant has also been serving on the 21-seat Board of Directors of the GSM Association since 2003. The GSM Association has nearly 690 members from 214 territories and plays a pivotal role in the formulation of global strategies relating to the communications market. The Complainant is also one of the world’s leading operators in international roaming, having concluded agreements with 541 operators in 193 countries.

4.4 The Complainant has introduced various services such as “TurkcellEDGE”, “TurkcellBlackBerry”, “TurkcellConnect”, “TurkcellE-Postaci” (e-postman), “TurkcellMobil÷deme” (mobile payment), “Ceptecevap” (answer in the pocket) and “Turkcell-im” (single point access) to its customers. On April 1, 2005, the Complainant also introduced the “Turkcell Youth Club” which now boasts 11 million members.

4.5 The Complainant is ISO 9001: 2000 certified. It has also received various international awards for its achievements including being placed 43rd in the “INFO Tech 100” in 2006, a rated listing of companies in the fields of telecommunications and information technology based on data originated from Standard & Poor.

4.6 The Complainant is the main sponsor of the Turkish National Soccer Team and an official sponsor of the Turkish National Basketball Team. Having secured the sponsorship of the Turkey Super League for five straight seasons commencing from 2005-06, the league is now known as the Turkcell Super League. The Complainant sponsors 12 teams in the league. The Complainant also undertakes the “Free Sports Schools” project in cooperation with the Women’s Commission of the Olympics Committee that has so far produced approximately 20,000 youths with the opportunity to engage in sports activities under the guidance of coaches.

4.7 The Complainant had first registered its corporate name and the TURKCELL mark and device on September 9, 1996 with the Turkish Patent Office (“TPO”) (Registration Nos. 173130 and 174691). Variations of the TURKCELL marks and device have been registered with the TPO subsequent thereto. The Complainant has also registered the TURKCELL mark and device before the Office for Harmonization in the Internal Market as a Community Trademark and the United States Patent and Trademark Office in Class 38.

4.8 On January 22, 2007, the Complainant also filed the TURKCELLTEKNOLOJI mark with the TPO in various classes. The mark is a combination of two separate words, namely, “Turkcell” and “Teknoloji”. The word “Teknoloji” is the Turkish equivalent of the word “Technology”.

4.9 The Complainant has also secured the registration of and uses the domain names <turkcell.com>, <turkcell.com.tr> and <turkcellteknoloji.com.tr> in the ordinary course of its business.

4.10 The disputed domain name <turkcelltechnology.com> was registered on April 18, 2007, well after the Complainant had secured the registration of its TURKCELL trademarks and not long after the Complainant started using its TURKCELLTEKNOLOJI trademarks. The domain name resolves to a website which offers the domain name for sale.

4.11 The Respondent had written to the Complainant via emails of January 7 and 9, 2008 offering to sell the domain name in dispute for a sum of 75,000.00 New Turkish Liras (or equivalent to approximately USD 65,510.00 as of January 28, 2008). The English translated contents of the exchange of emails between the Complainant and the Respondent are set out as follows:

From Respondent to Complainant (January 7, 2008):

“Hi! Mr. Sureyya, I have a domain name (www.turkcelltechnology.com – http:///www.turkcelltechnology.com -), which may be needed by Turkcell, of which, I know you are Chief Executive Officer. In case you are interested, I may transfer it to you for consideration. We may communicate for details.”

From Ms Ozlem Baysal (on behalf of the Complainant) to Respondent (January 9, 2008):

“Hi! We have been informed with your email below that you have the domain name “www.turkcelltechnology.com”. We request that you forward us your proposal for the transfer of the subject domain.”

From Respondent to Complainant (January 10, 2008)

“Hi! Ms Ozlem, I can transfer the subject domain to your firm for 75,000 (Seventyfive thousands) New Turkish Liras.”

 

5. Parties’ Contentions

A. Complainant

The Complainant contends as follows:

5.1 The <turkcelltechnology.com> domain name contains not only the Complainants’ TURKCELL mark but it also contains the English equivalent of the word “teknoloji”. Hence, the Respondent’s domain name is confusingly similar to the Complainant’s TURKCELL and TURKCELLTEKNOLOJI marks.

5.1.2 The Respondent has no rights or legitimate interests in respect of the domain name. In support thereof, the Complainant relies on the following factors:

(a) The Respondent is not using the domain name in connection with a bona fide offering of goods and services. By using a famous mark, the Respondent intends to confuse Internet users to divert them to the Respondent’s website or to simply resell the domain name to the Complainant.

(b) The Complainant has not licensed or otherwise permitted the Respondent to use the TURKCELL or TURKCELLTEKNOLOJI marks or to apply for, or use any domain name incorporating these marks.

(c) The domain name is not a mark by which the Respondent is commonly known.

(d) The TURKCELL mark is a famous mark especially in Turkey and since the Respondent is an individual located in Turkey, it is highly unlikely that s/he was not aware of the Complainant’s rights to the mark. As such, the Respondent was fully aware that the Complainant had established rights in the TURKCELL marks at the time s/he registered the domain name.

5.1.3 The domain name was registered and is being used in bad faith. In this regard, the Complainant relies on the following circumstances:

(a) The Respondent intended to resell the domain name to the Complainant for a substantial profit (beyond the costs of registration) when s/he registered the domain name. The offer by the Respondent to resell the domain name for 75,000 New Turkish Liras and the notice for sale placed in the resolving website evidences this intent.

(b) The Respondent has intentionally provided contact details which are false, incorrect or incomplete.

B. Respondent

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

 

6. Discussion and Findings

In order to succeed in its Complaint, the Complainant is required to establish the following elements set out under paragraph 4(a) of the Policy:

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

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

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

A. Identical or Confusingly Similar

The Panel is satisfied that the Complainant has rights to the TURKCELL and TURKCELLTEKNOLOJI marks. This is supported by the evidence of goodwill and use submitted by the Complainant and the relevant certificates of registration and trademark applications.

The domain name at issue wholly comprises the Complainant’s TURKCELLmark and the English equivalent of the Complainant’s TURKCELLTEKNOLOJI mark. As such it is confusingly similar to the Complainant’s marks. Numerous Policy decisions have recognized that the incorporation of a trademark in its entirety is sufficient to establish that a domain name is identical or confusingly similar to a complainant’s trademark (See Yapi Ve Kredi Bankasi A.S. v. Internet Bazaar AS, NAF Case No.: FA0107000098243; Quixar Investments, Inc. v. Dennis Hoffman, WIPO Case No. D2000-0253).

The use of a generic term (i.e. “technology”) or the translated version of the Complainant’s mark does not, by itself, remove the element of confusing similarity in the context of this proceeding. Although the word “technology” on its own is a generic word, the use of the Complainant’s TURKCELL mark in combination therewith renders the domain name confusingly similar to the Complainant’s TURKCELL and TURKCELLTEKNOLOJI marks.

Based on the fact that the Respondent’s domain name is confusingly similar to the Complainant’s trademarks, the Panel is satisfied that the first element of paragraph 4(a) of the Policy has been proven by the Complainant.

B. Rights or Legitimate Interests

Based on the contact details, the Respondent is apparently not known by the name in which the domain name is registered. Neither has the Respondent replied to the assertions made by the Complainant to justify its rights or interests to the domain name. The Complainant has also asserted that it has not licensed or consented to the use of the marks by the Respondent. It does not, therefore, appear that the Respondent has rights or legitimate interests to the domain name in dispute.

Moreover, as the Complainant has adduced ample evidence to indicate the notoriety of its mark, especially in Turkey (which is apparently also the location of the Respondent) and the fact that the domain name resolves to a website which purports to resell the domain name, indicates that the Respondent is not using the domain name for a bona fide offering of goods or services. The only plausible reason to justify an interest in the domain name appears to be that the Respondent intended to resell the domain name to the Complainant. This is evidenced by the offer from the Respondent to resell the domain name to the Complainant at a price higher than that incurred for its registration.

The failure of the Respondent to respond to the Complainant’s contentions and the evidence adduced by the Complainant leads the Panel to find that the Respondent has no rights or legitimate interests in the domain name. The Panel could find no justification, rights or legitimate interests on the part of the Respondent to the words comprising the domain name in the evidence of record.

Based on the above circumstances, the Panel is satisfied that the second element of paragraph 4(a) of the Policy has been proven by the Complainant.

C. Registered and Used in Bad Faith

There are three convincing reasons to support a finding of bad faith on the part of the Respondent.

First, the acquisition of rights to the TURKCELL and TURKCELLTEKNOLOJI marks by the Complainant predate the registration of the domain name at issue. This establishes knowledge on the Respondent’s part.

Second, as discussed above, the Complainant has provided ample evidence to indicate that it has rights to the marks, which are widely-known in Turkey. Being located in Turkey, the Respondent must in all likelihood have known that s/he was securing the registration of a domain name which wholly comprised a widely-known mark in Turkey. This being the case, it is improbable that the Respondent was not aware of the Complainant’s rights to the mark comprising the domain name. This further establishes knowledge on the Respondent’s part.

Third, the notice for sale placed by the Respondent in the website which the domain name resolves to and the offer for sale of the domain name to the Complainant is indicative evidence of an intent of registration and use in bad faith. The sale price of 75,000 New Turkish Liras (equivalent to approximately USD 65,100 as at January 28, 2008) offered by the Respondent is well beyond the ordinary registration costs of a second level “.com” domain name. This has the hallmarks of a classic case of “cybersquatting” and further re-inforces the requisite bad faith intent on the part of the Respondent.

Accordingly, the Panel is also satisfied that the third element of paragraph 4(a) of the Policy has been satisfactorily proven by the Complainant.

 

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 domain name, <turkcelltechnology.com>, be transferred to the Complainant.


Syed Naqiz Shahabuddin
Sole Panelist

Dated: April 8, 2008