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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Enka İnşaat Ve Sanayi Anonim Şirketi v. Salim Akansel

Case No. D2015-1535

1. The Parties

The Complainant is Enka İnşaat Ve Sanayi Anonim Şirketi of Istanbul, Turkey, represented by Dericioğlu & Yaşar Law Office, Turkey.

The Respondent is Salim Akansel of Muğla, Fethiye, Turkey.

2. The Domain Name and Registrar

The disputed domain name <enkainşaat.com> is registered with Nics Telekomünikasyon Ticaret Ltd. Şti. (the "Registrar").

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on August 27, 2015. On August 27, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 2, 2015, 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 Complaint was submitted in the English language. The language of the Registration Agreement for the disputed domain name is Turkish. On September 9, 2015, the Center sent a language of proceedings communication in both Turkish and English to the Parties. On September 9, 2015, the Complainant submitted a request for English to be language of proceedings. The Respondent did not submit any comments on this request.

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 and 4, the Center formally notified the Respondent of the Complaint in Turkish and English, and the proceedings commenced on September 28, 2015. In accordance with the Rules, paragraph 5, the due date for Response was October 18, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on October 19, 2015.

The Center appointed Kaya Köklü as the sole panelist in this matter on November 9, 2015. 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 a Turkish construction company founded in 1967. The origins of the company go back to 1957.

It is the owner of various registered trademarks in Turkey comprising the term "Enka", including the Turkish registration no. 2003/37970 for the word mark ENKA, which was registered on July 30, 2004. The trademark covers protection for construction services in class 37. ENKA is a fanciful trademark with no specific meaning in the Turkish language.

The Complainant also holds and operates various domain names incorporating its ENKA trademark, including <enka.com> and <enka.com.tr>.

The disputed domain name <enkainşaat.com> was created on August 5, 2013.

The Respondent appears to be an individual from Muğla, Turkey.

At the time of the decision, the disputed domain name was inactive.

5. Parties' Contentions

A. Complainant

The Complainant requests the transfer of the disputed domain name.

The Complainant is of the opinion that the disputed domain name is confusingly similar to the Complainant's ENKA trademark.

The Complainant argues that the only difference between the disputed domain name and the Complainant's trademark is that the disputed domain name additionally comprises the generic Turkish term "inşaat", which means "construction" in the English language. The Complainant is of the opinion that the addition of this generic term does not negate the confusing similarity with its trademark, in particular as it is also part of its company name.

Furthermore, the Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name. In particular, the Complainant states that the Complainant has never granted a permission or license to the Respondent to use its ENKA trademark. The Complainant further alleges that the Respondent has never used and does not intend to use the ENKA trademarks in connection with a bona fide offering of goods or services.

Finally, it is argued that the Respondent has registered and is using the disputed domain name in bad faith. The Complainant particularly believes that the Respondent was or should have been aware of the ENKA trademark when it registered the disputed domain name.

B. Respondent

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

6. Discussion and Findings

The Panel determines in accordance with the Complainant's request and the Rules, paragraph 11(a), that the language of these administrative proceedings shall be the English language. Although the language of the Registration Agreement is Turkish, the Panel finds that it is reasonable, given the circumstances of this case, to conduct the proceedings in English and not to request a costly and time consuming Turkish translation of the Complaint while the Respondent has failed to raise any objection or even to respond to the Complaint or respond to the Center's communication with regard to the language of the proceedings, even though communicated in Turkish and in English.

According to paragraph 14(a) and 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 is satisfied:

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

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

(iii) the disputed 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, concerning the uncontested information provided by the Complainant, the Panel may, where relevant, accept the provided reasonable factual allegations in the Complaint as true. Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110.

It is further noted that the Panel has taken note of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0") and, where appropriate, will decide consistent with the WIPO Overview 2.0.

A. Identical or Confusingly Similar

The Panel finds that the disputed domain name is confusingly similar to the ENKA trademark of the Complainant.

First, the Panel confirms that the Complainant has satisfied the threshold requirement of having trademark rights in ENKA. As evidenced in the Complaint, the Complainant is the owner of various word and figurative trademarks comprising the mark ENKA in Turkey.

Although not identical, the disputed domain name fully incorporates the Complainant's ENKA trademark.

The disputed domain name differs from the ENKA trademark only by the addition of the generic Turkish term "inşaat", which means "construction" in English. In the Panel's view, the addition of such generic term does not negate the confusing similarity between the Complainant's trademark ENKA and the disputed domain name. The Panel finds that this additional incorporation is purely descriptive and does not create a new distinctiveness separate from the Complainant's ENKA trademark. On the contrary, the full inclusion of the Complainant's trademark in combination with the generic term "inşaat" even enhances the false impression that the disputed domain name is officially related to the Complainant for mainly two reasons. First, the term "inşaat" is part of the Complainant's company name and, second, it directly describes the Complainant's core field of business. The Panel concludes that the disputed domain name is likely to confuse Internet users into believing that the disputed domain name is affiliated or endorsed by the Complainant or that the use of the disputed domain name is at least authorized by the Complainant.

In view of the above, the Panel is satisfied that the Complainant has met the requirements under paragraph 4(a)(i) 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 name.

While the burden of proof remains with the Complainant, the Panel recognizes that this would often 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 of the Respondent. Therefore, the Panel agrees with prior UDRP panels that the Complainant is required to make out only a prima facie case before the burden of production of evidence shifts to the Respondent to show that it has rights or legitimate interests in the disputed domain name in order to meet the requirements of 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, while the Respondent has failed to file any evidence or convincing argument to demonstrate a 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 uncontested prima facie evidence that the Respondent has no rights or legitimate interests to use the Complainant's ENKA trademark in the disputed domain name.

In the absence of a Response by the Respondent, there is no indication in the current record that the Respondent is commonly known by the disputed domain name. Furthermore, the Respondent has failed to demonstrate any of the other nonexclusive circumstances evidencing rights or legitimate interests under the Policy, paragraph 4(c) or any other evidence of a right or legitimate interest in the disputed domain name. Especially, the Respondent has failed to show that the disputed domain name has been or is intended to be used in connection with a bona fide offering of goods or services.

In fact, bearing in mind that the trademark ENKA is a fanciful term with no specific meaning, neither in English nor Turkish, the Panel cannot conceive of any use of the trademark in combination with the descriptive term "inşaat" by the Respondent, which would qualify as a legitimate use.

Consequently, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

The Panel is further convinced that the Respondent has registered and is using the disputed domain name in bad faith.

First, the Panel believes that the Respondent must have been aware of the Complainant's ENKA trademark when it registered the disputed domain name in August 2013. At the date of registration of the disputed domain name, the Complainant's ENKA trademark was already registered in Turkey for more than a decade. The Panel concludes that the Respondent, who is apparently from Turkey, must have registered the disputed domain name in bad faith.

Second, the Panel is of the opinion that the Respondent intentionally attempted to create a likelihood of confusion among customers and/or to tarnish the Complainant's ENKA trademark, probably for commercial gain or any other illegitimate benefit. In the Panel's view, it cannot be a coincidence that the Respondent has chosen the full company name of the Complainant as a domain name.

The fact that the disputed domain name is currently inactive does not change the Panel's findings in this regard.

It is no surprise to the Panel that the Respondent did not respond to the Complainant's contentions, although being informed of the pending administrative proceedings by email and courier in Turkish and English.

Taking all this into consideration, the Panel cannot conceive of any good faith use of the disputed domain name by the Respondent. It is rather convinced that this is a typical cybersquatting case.

The Panel therefore concludes that the disputed domain name was registered and is being used in bad faith and that the Complainant consequently has satisfied the third element of the Policy, namely, 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 <enkainşaat.com>, be transferred to the Complainant.

Kaya Köklü
Sole Panelist
Date: November 23, 2015

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