The Complainant is Doğan Gazetecilik Anonim Şirketi of Istanbul, Turkey, represented by Dericioğlu & Yaşar Law Office, Turkey.
The Respondent is AZ Z Polat of Istanbul, Turkey.
The disputed domain name <gazeteposta.net> is registered with Melbourne IT Ltd.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 4, 2010. On February 5, 2010, the Center transmitted by email to Melbourne IT Ltd a request for registrar verification in connection with the disputed domain name. On February 9, 2010, Melbourne IT Ltd. 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 February 9, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was March 1, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on March 2, 2010.
The Center appointed Kaya Köklü as the sole panelist in this matter on March 15, 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.
No further submissions were received by the Center or the Panel. The date scheduled for the issuance of the Panel's decision was March 29, 2010.
In accordance with the Rules, paragraph 11, and since the Parties have not agreed otherwise, the language of the administrative proceedings is the language of the Registration Agreement (i.e. English), Telstra Corporation Limited v. Telsra.com/Telecomunicaciones Serafin Rodriguez y Asociados, WIPO Case No. D2003-0247; Advances Magazine Publishers Inc., v. Computer Dazhong, WIPO Case No. D2003-0668.
The Complainant is a company under Dogan Sirketler Grubu A.S., which is Turkey's leading media and entertainment group. Among other fields of business, the Complainant is mainly active in the publishing and sale of inter alia Turkish daily newspapers, magazines and books. by print and electronic media.
Its portfolio comprises several well-known and famous newspapers and magazines like Hürriyet, Radikal, Fanatik, Referans, Turkish Daily News and Posta.
Posta is a mass market daily newspaper that is commonly known among the Turkish population.
The Complainant is the registered owner of the (figurative) trademark POSTA. The trademark was registered on May 31, 1995 (renewed in 2005) for goods and services within class 16, in particular for newspapers. In addition, the Complainant is the registered owner of the (figurative) trademark “Dünden bugüne POSTA”. This trademark was registered on January 31, 2003 and claims protection for goods and services within class 16 and 41, including newspapers and magazines.
In addition, the Complainant holds and operates various websites including a homepage providing daily news under the website “www.posta.com.tr.”
The Respondent is an individual who registered the disputed domain name <gazeteposta.net> on July 18, 2008. There was no content provided under this domain name when the Panel visited the Internet site on March 22, 2010.
According to the provided information by the Complainant, Posta is the best-selling daily newspaper of its kind in Turkey with a circulation of more than 600,000. The Complainant sets forth that its newspaper Posta had a market share of 12 % in Turkey in 2007 and hence, is well recognized by the general public and commercial advertisers.
The Complainant requests the Panel to transfer the domain name <gazeteposta.net> and argues that (i) the disputed domain name is clearly identical to the trademarks registered by the Complainant, (ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name and (iii) the Respondent has registered the disputed domain name in bad faith.
In particular, the Complainant argues that it never granted any permission or license to the Respondent to use the trademark POSTA. In addition, the Complainant alleges that the Respondent has never used the name POSTA on any occasion before, in particular not with regard to the provision of news, either in print media or on the Internet.
As an indication of the Respondent's bad faith, the Complainant also states that the name and surname in the WhoIs records for the registration of the disputed domain name are fragmentary only. It is also argued that the registration only reveals the city and the country where the Respondent is located, but not its full address details, which should be assessed as further evidence of the bad faith of the Respondent.
The Respondent did not reply to the Complainant's contentions.
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 are satisfied:
- The domain name is identical or confusingly similar to the trademark in which the Complainant has rights; and
- The Respondent has no rights or legitimate interests in respect of the domain name; and
- The domain name has been registered and is being used in bad faith.
Paragraph 4(a) of the Policy states that the Complainant bears the burden of proving that all these requirements are fulfilled, even if the Respondent has not replied to the Complaint, Stanworth Development Limited v. E Net Marketing Ltd., WIPO Case No. D2007-1228.
However, in the case of a respondent's default, the Panel may – as appropriate – accept the reasonable provided factual allegations in the Complaint as true, Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110.
In this regard, it is mentioned that independent research, by visiting the Internet site linked to the disputed domain name, has been performed by the Panel. The competence of the Panel to perform such independent research is in line with previous panel decisions, e.g. Hesco Bastion Limited v. The Trading Force Limited, WIPO Case No. D2002-1038.
The Panel finds that the disputed domain name <gazeteposta.net> is confusingly similar to the Complainant's trademarks.
First, the Panel confirms that the Complainant has satisfied the threshold requirement of having trademark rights regarding the mark POSTA. It is not contested that the Complainant owns two figurative trademarks with the sign POSTA as the distinctive part within these trademarks.
The domain name in dispute comprises the word “posta” which is identical to the distinctive part of the Complainant's trademarks. The additional word “gazete” used in the disputed domain name is only a generic term (here, spelled in accordance with the Turkish language) and means “newspaper”. The Panel finds that simply adding a generic term like “gazete” does not ameliorate the likelihood of confusion and does not make the domain name distinctive as compared to the Complainant's trademarks. The Panel is even of the opinion that by using the additional word “gazete” in the disputed domain name, the likelihood of confusion with the Complainant's trademarks is increased as the word “gazete” clearly refers to the goods and services protected by the Complainant's trademarks.
Hence, the Panel finds that the first requirement under paragraph 4(a) of the Policy is fulfilled.
The Panel also finds that the Respondent has not demonstrated a right or legitimate interest in the disputed domain name.
While the burden of proof in principle rests with the Complainant, previous UDRP panels have recognized that this would result in the often impossible task of proving a negative, in particular as evidence concerning the Respondent's lack of rights or legitimate interests is primarily within the knowledge of the Respondent. Therefore, the Panel believes that the Complainant is thus required to make out a prima facie case in order to meet the requirements in paragraph 4(a)(ii) of the Policy, at which point the burden shifts to the Respondent to come forward with rebuttal evidence, 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 demonstrate any 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 non-contested prima facie evidence that the Respondent has no trademark, license or any other similar right to use the disputed domain name.
When the Panel visited the disputed domain name on March 22, 2010, there was no provided content at all and the Complainant has indicated that the domain name has been passively held.
Hence, there is no indication that the disputed domain name is used in connection with a bona fide offering of goods and services. There is also no indication that the Respondent has been commonly known by the domain name.
Finally, the Respondent failed to demonstrate that it makes a legitimate noncommercial or fair use of the domain name without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark at issue.
As a conclusion, the Panel finds that the Complainant has satisfied the requirements of 4(a)(ii) of the Policy.
The Panel finds that the Respondent has registered and used the disputed domain name in bad faith.
The Panel is aware of the reputation of the Complainant's newspaper Posta in Turkey. The Panel also recognizes the notoriety of the Complainant's trademarks and it believes that the Respondent, who is located in Turkey, must have known of the newspaper and the Complainant's trademarks when registering the disputed domain name on July 18, 2008.
It rather appears that the Respondent has registered the disputed domain name purely for the purpose of creating a connection with the Complainant's well-known Posta newspaper and website “www.posta.com.tr”.
This impression is supported by the fact that the Respondent did not provide its correct name and contact details to the registrar of the domain name. The Panel believes that this has been done by the Respondent intentionally in order to keep in hiding and to place the domain name out of reach of the Complainant, Eveready Battery Company, Inc. v. Oscar Haynes, WIPO Case No. D2003-1005; Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003; Jupiters Limited v. Aaron Hall, WIPO Case No. D2000-0574; Ladbroke Group Plc v. Sonoma International LDC, WIPO Case No. D2002-0131.
The Panel finally cannot see any possibility of conceiving a good faith use of the domain name by the Respondent and finds that the Respondent's lack of Response supports the impression that it has registered the disputed domain name in bad faith, Awesome Kids LLC and/or Awesome Kids L.L.C. v. Selavy Communications, WIPO Case No. D2001-0210.
In the light of the findings above, the Panel is convinced that the disputed domain name was registered in bad faith and that the Complainant has satisfied the third element of the Policy, namely paragraph 4(a)(iii) of the Policy.
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 <gazeteposta.net> be transferred to the Complainant.
Dated: March 27, 2010