WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Koçtas Yapi Marketleri Ticaret A.S. v. Yavuz Bayyigit / Omer Faruk Aksakalli
Case No. D2011-1278
1. The Parties
The Complainant is Koçtas Yapi Marketleri Ticaret A.S. of Istanbul, Turkey, represented by Istanbul Patent & Trademark Consultancy Ltd., Turkey.
The Respondents are Yavuz Bayyigit and Omer Faruk Aksakalli both of Istanbul, Turkey.
2. The Domain Names and Registrar
The disputed domain names <koctasevdeneve.com> and <koctasnakliyat.com> are registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 26, 2011. On July 27, 2011, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On July 28, and July 29, 2011, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names, which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on August 1, 2011, 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 August 5, 2011.
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(a) and 4(a), the Center formally notified the Respondents of the Complaint, and the proceedings commenced on August 9, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was August 30, 2011. The Respondents did not submit any response. Accordingly, the Center notified the Respondents’ default on September 1, 2011.
The Center appointed Kaya Köklü as the sole panelist in this matter on October 3, 2011. 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, and since the Parties have not agreed otherwise, the language of the administrative proceedings is the language of the Registration Agreement (i.e. English).
4. Factual Background
The Complainant was established in 1996 and belongs to the leading companies in the Turkish “do-it-yourself” (DIY) “home renovation” market. It operates about 30 stores in 18 Turkish provinces. The Complainant belongs to Koç Holding A.S., which is one of the largest industrial and service groups in Turkey.
The Complainant is the registered owner of a large number of national trademarks comprising the mark KOCTAS. The first KOCTAS trademarks were registered in 1998, covering trademark protection for various goods and services, in particular in respect to goods and materials for home renovation and improvement.
Further to the trademark rights, the Complainant has registered and operates domain names comprising the mark KOCTAS, including <koctas.com> and <koctas.com.tr> since 1996.
The case file does not contain much information on the Respondents, except that they are both located in Istanbul, Turkey.
The disputed domain name <koctasevdeneve.com> was registered on September 3, 2009, and <koctasnakliyat.com> was registered on November 28, 2007.
When the Panel visited the disputed domain names on October 7, 2011, it recognized that on both Internet sites linked to the disputed domain names, there were cargo and transportation services offered mainly for private households.
As indicated by the Complainant, the Panel further recognized a disclaimer at the bottom of each of the disputed domain names stating that there is no direct or indirect relationship between the Respondent and the Complainant.
5. Parties’ Contentions
The Complainant requests the transfer of the disputed domain names.
The Complainant in particular argues that the disputed domain names are identical or at least confusingly similar to the Complainant’s trademark as it fully incorporates the Complainant’s KOCTAS trademark. The Complainant further argues that the only difference between the disputed domain names and the Complainant’s trademark is that the disputed domain names additionally comprise generic terms in the Turkish language. It is argued that the use of additional generic terms may even add to the confusingly similarity as it creates the impression that any home transportation service offered under the disputed domain names is somehow linked to official services offered by the Complainant.
Furthermore, the Complainant argues that the Respondents have no rights or legitimate interests in respect of the disputed domain names and have registered and used the disputed domain names in bad faith.
In this regard, the Complainant states that the Complainant has never granted a permission or license to the Respondents to use the trademark KOCTAS. In addition, the Complainant alleges that the Respondents have never used and do not intend to use the mark KOCTAS in connection with a bona fide offering of goods and services.
Finally, it is argued that due to the wide recognition of the sign KOCTAS in Turkey, the Respondent must have known this trademark well before the registration of the disputed domain names. This assumption shall additionally be indicated by the disclaimer, which is used by the Respondent on the Internet sites linked to the disputed domain names.
The Respondent did not reply to the Complainant’s contentions.
6. Procedural Issue: Consolidation of Multiple Domain Names
The Panel notes that the Respondents are “Yavuz Bayyigit” and “Omer Faruk Aksakalli”. Pursuant to paragraph 3(c) of the Rules, a single complaint may be brought in respect of multiple domain names “provided that the domain names are registered by the same domain name holder.” In this case, the Panel is satisfied that the disputed domain names (and the websites to which they resolve) are subject to common control and that the consolidation would be fair and equitable to all parties (see paragraph 4.16 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”)).
Applying this principle to the facts of this case (together with the fact that the Respondents did not contest the Complainant’s assertions) this Panel finds that there is a common person that has control over the disputed domain names. The Panel will therefore, for the purpose of this decision, refer only to “the Respondent.”
7. Discussion and Findings
According to paragraph 15(a) of the Rules, the Panel shall decide the Complaint in accordance with the Policy, the Rules and any other 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 is obliged to prove that each of the three following elements are satisfied:
(i) The disputed domain names are identical or confusingly similar to the trademark in which the Complainant has rights;
(ii) The Respondent has no rights or legitimate interests in respect of the disputed domain names; and
(iii) The disputed domain names have been registered and are 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.
With regard to any uncontested information provided by the Complainant, the Panel may appropriately accept the provided reasonable factual allegations in the Complaint as true, even if the Respondent has not replied to the Complaint, Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110.
As already indicated above, it is noted that independent research, visiting the Internet sites linked to the disputed domain names, has been performed by the Panel. The competence of the Panel to perform such independent research is undisputed and in line with previous UDRP decisions, e.g., Hesco Bastion Limited v. The Trading Force Limited, WIPO Case No. D2002-1038.
A. Identical or Confusingly Similar
The Panel finds that the disputed domain names <koctasevdeneve.com> and <koctasnakliyat.com> are confusingly similar to the KOCTAS trademark of the Complainant.
First, the Panel confirms that the Complainant has satisfied the threshold requirement of having trademark rights regarding its mark KOCTAS. As evidenced in the Complaint, the Complainant owns a large number of KOCTAS trademarks in Turkey.
Although not identical, the disputed domain names <koctasevdeneve.com> and <koctasnakliyat.com> fully incorporate the trademark KOCTAS.
The disputed domain names differ from the trademark only by the addition of some generic terms in the Turkish language. The Panel, which is familiar with the Turkish language, confirms that the Turkish terms used in the disputed domain names have the following meanings in the English language: “evden eve” means “from house to house”; and “nakliyat” means “transport.”
In the Panel’s view, the addition of generic terms like “evden eve” or “nakliyat” does not negate the confusing similarity between the Complainant’s trademark and the disputed domain names. The Panel finds that these incorporations are descriptive and do not create a new distinctiveness separate from the Complainant’s trademark KOCTAS. On the contrary, the full inclusion of the Complainant’s trademark in combination with these generic terms in the Turkish language may even enhance the false impression that the Internet sites linked to the disputed domain names are somehow officially linked to the Complainant or to the Koc Holding A.S.
The Panel concludes that the Complainant has satisfied the first element of the Policy.
B. Rights or Legitimate Interests
The Panel further finds that the Respondent has not demonstrated any rights or legitimate interests in the disputed domain names.
While the burden of proof remains with the Complainant, the Panel recognizes that this would 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 and sphere of the Respondent. Therefore, the Panel agrees in line with prior UDRP panels that the Complainant is required to make out a prima facie case before the responsibility shifts to the Respondent to show that it has rights or legitimate interests in the disputed domain names in order to meet the requirements in 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 by providing uncontested prima facie evidence that the Respondent has no trademark, license or any similar right to use the Complainant’s mark in the disputed domain names.
In the absence of a Response, the Respondent has failed to file any evidence or convincing arguments to demonstrate a right or legitimate interest or any other evidence of a right or legitimate interest in the disputed domain names according to the Policy, paragraphs 4(a)(ii) and 4(c).
C. Registered and Used in Bad Faith
The Panel is further convinced that the Respondent has registered and used the disputed domain names in bad faith.
The Panel is well aware of the reputation and recognition of the trademark KOCTAS in Turkey. The Panel believes that the Respondent must have known of this trademark when registering the disputed domain names. This is in particular likely as the disputed domain names have been registered well after the Complainant's trademark KOCTAS has become recognized in the Turkish community.
In view of the Panel, it appears that the Respondent has registered and uses the disputed domain names solely for the purpose of creating an association with the recognized trademark KOCTAS in order to mislead Internet users who may search for official information and services provided by the Complainant. The Panel is convinced that the Respondent was and still is aware that a legitimate use of the disputed domain names would not have been possible without infringing the Complainant’s trademark rights in the sign KOCTAS.
This assessment is supported by the fact that the Respondent has made use of a disclaimer on the Internet sites linked to the disputed domain names. The Panel is of the opinion that the existence of such disclaimer does not cure the Respondent’s bad faith. In contrast, the use of a disclaimer as worded and designed in the present case rather demonstrates that the Respondent had prior knowledge of the trademark KOCTAS.
For the foregoing reasons, the Panel cannot conceive of any good faith use of the disputed domain names by the Respondent.
The Panel therefore concludes that the disputed domain names were registered and used in bad faith and that the Complainant has also satisfied the third element of the Policy, namely, paragraph 4(a)(iii) of the Policy.
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 names, <koctasevdeneve.com> and <koctasnakliyat.com> be transferred to the Complainant.
Dated: October 13, 2011