World Intellectual Property Organization

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Merko Gida Sanayi Ve Ticaret Anonim Şirketi v. Dr.Mehmet Kahveci

Case No. D2010-1124

1. The Parties

The Complainant is Merko Gida Sanayi Ve Ticaret Anonim Şirketi of Istanbul, Turkey, represented by Leksium Danişmanlik Ve Sinai Mülkiyet Hizmetleri Ltd. Şti., Turkey.

The Respondent is Dr.Mehmet Kahveci of Boston, Massachusetts, United States of America.

2. The Domain Name and Registrar

The disputed domain name, <merko.com> (the “Domain Name”), is registered with Network Solutions, LLC. (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 7, 2010. On July 7, 2010, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On July 7, 2010, 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 July 23, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was August 12, 2010. The Respondent did not submit any Response. Accordingly, the Center notified the Respondent’s default on August 16, 2010.

The Center appointed Tony Willoughby as the sole panelist in this matter on August 19, 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.

Having noted that certain of the allegations set out in the Complaint were unsupported by any evidence, on August 23, 2010, the Panel issued a procedural order designed to clarify the extent to which if at all those allegations had merit. The Complainant responded to that order on August 25, 2010, but despite the fact that the Panel gave the Respondent an opportunity to respond, the Respondent has not done so.

4. Factual Background

The Complainant is a well-known Turkish food processing company, which was established in 1982. It is the proprietor of Turkish (84/082008) and International (747425) trade mark registrations for the mark MERKO in a stylised form in class 29 for various food products. The Turkish registration dates back to either 1984 or 19941.

The Domain Name was registered on April 17, 1996. For a period it was connected to the Complainant’s website, but currently it does not appear to connect to any website.

The Respondent resides in the United States of America. He has been the subject of at least three WIPO complaints under the UDRP, all involving the names of well-known Turkish companies, namely Vestel Elektronik Sanayi ve Ticaret AS v. Mehmet Kahveci, WIPO Case No. D2000-1244; Akbank v. Dr. Mehmet Kahveci, WIPO Case No. D2001-1488; and Yildiz Holding A.S., Ülker Gida Sanayi Ve Ticaret A.S. v. Dr. Mehmet Kahveci, WIPO Case No. D2002-1141.

5. Parties’ Contentions

A. Complainant

The Complainant contends that the Domain Name is identical or confusingly similar to its registered trade mark, that the Respondent has no rights or legitimate interests in respect of the Domain Name and that the Domain Name was registered and is being used in bad faith within the meaning of paragraph 4(b)(i) of the Policy.

B. Respondent

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

6. Discussion and Findings

A. General

According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name, the Complainant must prove each of the following, namely that:

(i) The Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and

(ii) The Respondent has no rights or legitimate interests in respect of the Domain Name; and

(iii) The Domain Name was registered and is being used in bad faith.

B. Identical or Confusingly Similar

The Domain Name comprises the Complainant’s name and trade mark MERKO and the generic “.com” domain suffix. For the purposes of assessing identity and confusing similarity under paragraph 4(a)(i) of the Policy the generic domain suffix may be ignored.

The Panel finds that the Domain Name is identical or confusingly similar to the Complainant’s trade mark.

C. Rights or Legitimate Interests

On the evidence before the Panel the only use ever made of the Domain Name was to connect it to the Complainant’s website, a use which terminated in about 2007. The evidence put before the Panel comprises the results of a DomainTools.com search.

The Complainant asserts that (a) the Respondent approached the Complainant with a view to selling it, (b) the Complainant tried to purchase the Domain Name and paid the Respondent’s brother USD1000 for it, (c) the transfer never materialized and the Complainant “had to accept to rent it for a while” (d) however, the Complainant was able to secure that any traffic to “www.merko.com be directed to its IP address until the Complainant changed service providers a few years ago and its IP number changed.

The Complainant has been unable to find any documentation verifying its communications with the Respondent or his brother, but has lodged a letter from its Chairman confirming the above.

Paragraph 4(c) of the Policy sets out a non-exhaustive list of what shall constitute rights or legitimate interests for this purpose. But none of them appears to be applicable. The Respondent is not named “Merko” and while he appears to have “rented” the name to the Complainant for a while, there is nothing before the Panel to indicate any justification for the Respondent having registered the name. On the face of it, the Domain Name registration appears to be part of the Respondent’s pattern of domain name registrations featuring the names of well-known Turkish companies (see paragraph 4 above).

The Panel is satisfied that the Complainant has made out a prima facie case under this head and that the Respondent has a case to answer. However, the Respondent not responded to the Complaint and also has not responded to the Complainant’s submission in response to the Panel’s procedural order.

The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name.

D. Registered and Used in Bad Faith

The Complainant contends that the Respondent registered the Domain Name, knowing it to be the Complainant’s trade mark and with a view to selling it to the Complainant at a profit.

As indicated above, the Complainant’s evidence is based largely upon an unsworn letter from its Chairman and without any supporting documentation.

However, the Panel has noted that in two of the previous WIPO UDRP cases in which the Respondent was deprived of domain name registrations featuring well-known Turkish trade marks, the domain names in question were registered on the same day that the Domain Name was registered, namely April 17, 1996. It is reasonable to suppose that the Domain Name was registered for the same purpose as the others.

In Vestel Elektronik Sanayi ve Ticaret AS v. Mehmet Kahveci, supra, where the domain name, <vestel.com> was registered on April 17, 1996, the Panel stated: “6.13.In light of (1) the Respondent's offer to sell the domain name vestel.com to the Complainant for $200,000.00 and (2) the pattern of Respondent's registration of domain names that correspond to numerous other Turkish companies, the Panel finds that these circumstances indicate that the Respondent registered the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant for valuable consideration in excess of the Respondent's documented out-of-pocket costs directly related to the domain name. 6.14 The Panel finds that the Complainant has established that the Respondent registered and used the domain name "vestel.com" in bad faith.”

In Yildiz Holding A.S., Ülker Gida Sanayi Ve Ticaret A.S. v. Dr. Mehmet Kahveci, supra, where the domain name, <ulker.com> was registered on April 17, 1996 the Panel stated: “In conclusion the Panelist is satisfied that the Respondent has engaged in a pattern of registering domain names corresponding to well known marks of Turkish companies, in order to prevent the owners of the marks from reflecting it in a corresponding domain name in the important ".com" domain (paragraph 4b(ii) of the Policy; see also Akbank v. Dr. Mehmet Kahveci, WIPO Case No. D2001-1488)”.

The circumstances surrounding registration of the Domain Name lead the Panel to conclude that in all probability the Respondent’s intention was to sell the Domain Name to the Complainant at a profit.

The Panel finds that the Domain Name was registered and is being used in bad faith within the meaning of paragraphs 4(a)(iii) and 4(b)(i) 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 Domain Name, <merko.com>, be transferred to the Complainant.

Tony Willoughby
Sole Panelist
Dated: August 30, 2010


1 The Panel has been unable to decipher the date from the Turkish language documentation exhibited to the Complaint. The text of the Complaint claims 1994 as the date of first use, but the number of the Turkish trade mark registration and the date of the establishment of the business appearing on the Complainant’s website (1982) would indicate otherwise.

 

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