WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
ARÇELIK A.S. v. Volkan Turk
Case No. DCO2011-0039
1. The Parties
The Complainant is ARÇELIK A.S., Istanbul, Turkey, represented by Istanbul Patent & Trademark Consultancy Ltd., Turkey.
The Respondent is Volkan Turk, Istanbul, Turkey.
2. The Domain Names and Registrar
The disputed domain names <arcelik.co> and <beko.co> are registered with Register.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 29, 2011. On June 29, 2011, the Center transmitted by email to Register.com a request for registrar verification in connection with the disputed domain names. On June 30, 2011, Register.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” 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 6, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was July 26, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 2, 2011.
On August 20, 2011 communication was received from the Respondent. The Center acknowledged receipt of Respondent’s email communication the contents of which the Center noted of August 20, 2011 would be brought to the Panel’s attention. As the response due date was July 26, 2011. The Administrative Panel would have to decide whether to consider the Respondent’s response when rendering its decision.
The Center appointed Kaya Köklü as the sole panelist in this matter on August 24, 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 is a major Turkish company offering various goods and services in more than 100 countries worldwide. The main business fields of the Complainant are household appliances (white goods), televisions and air condition products. It has production facilities in Turkey, Russia Federation, Romania and China. The Complainant belongs to the Koç Holding, which is one of the largest industrial and service groups in Turkey.
The Complainant owns a large number of ARCELIK word and figurative trademarks. As evidenced in the Complaint, the Complainant is also the exclusive licensee of all registered BEKO trademarks.
The trademarks ARCELIK and BEKO are well-known brands, in particular in Turkey.
Further to its trademark rights, the Complainant has registered and operates several domain names comprising the sign “ARCELIK”, and “BEKO”, e.g. <arcelik.com.tr>, <arcelik.com> and <beko.com.tr>.
The disputed domain names <arcelik.co> and <beko.co> were both created on August 31, 2010.
The Respondent seems to be a Turkish individual located in Istanbul, Turkey. Furthermore, it is noted that the Respondent was already involved as a Respondent in other UDRP proceedings (see Turkcell Iletisim Hizmetleri A.S. v. Volkan Turk, WIPO Case No. DCO2011-0001). Additionally, the Respondent has registered several further domain names comprising the names of other major and well-known Turkish companies like <turkishairlines.co>, <sabanci.co> and <ulker.co> (see Annex 12 of the Complaint).
5. Parties’ Contentions
As a remedy in these administrative proceedings, the Complainant requests the transfer of the disputed domain name for the following reasons:
First, the Complainant believes that the disputed domain names are identical to the Complainant’s trademarks.
Second, it is argued that the Respondent has no rights or legitimate interests in using the disputed domain names. In the Complainant’s view, the Respondent has registered the disputed domain names solely for the purpose to unlawfully achieve “huge commercial gain through sales of the numerous domain names he has previously registered”.
Last but not least, the Complainant cannot conceive any possibility that the Respondent did not know the Complainant’s company group when registering the disputed domain name. In the Complainant’s view, this shall be a clear indication that the Respondent is a cyber squatter.
The Respondent did not reply to the Complainant’s contentious within the due date for the Response on July 26, 2011.
After expiry of the due date for the Response, the Center received an informal email communication on August 20, 2011, apparently sent by the Respondent. In this email communication, the Respondent argues that he was not able to respond earlier due to his compulsory military service in Turkey.
Concerning the present case, the Respondent points out that he is willing to transfer the disputed domain names, if the Complainant covers his expenses for registration. He alleged that his expenses for the registration of both disputed domain names amount to USD 4,750.00. For evidential purposes, the Respondent provided a copy of a money transfer to the Royal Bank of Canada.
Additionally, the Respondent refers to the case Turkcell Iletisim Hizmetleri A.S. v. Volkan Turk, WIPO Case No. DCO2011-0001, in which he was involved as a respondent as well. In that said case, the Respondent argued that he has registered about 400 domain names of mainly Turkish companies “for his business of securing .co domain names for companies who failed to buy them on time and forestalling cybersquatters”.
6. 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 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 is satisfied:
(i) The disputed domain names are identical or confusingly similar to the trademarks in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the 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. At the same time, in accordance with the Rules, paragraph 14(b), if a party in the absence of exceptional circumstances does not comply with any provision of or requirement under the Rules or any request of the Panel, the Panel shall draw its inferences as it considers appropriate.
To begin with, the Panel finds that the informal email communication received by the Center on August 20, 2011 does not qualify as a formal reply by the Respondent in the present administrative proceedings. However, the Panel will consider the content of the Respondent’s email communication as it contains some information relevant for the present case.
Concerning the uncontested information provided by the Complainant, the Panel may as appropriately accept the provided reasonable factual allegations in the Complaint as true, Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110.
The Panel further notes that it has performed an independent research, by visiting the Internet sites linked to the disputed domain names, on September 2, 2011. The competence of the Panel to perform such independent research is in line with previous UDRP decisions (see, e.g. Hesco Bastion Limited v. The Trading Force Limited, WIPO Case No. D2002-1038).
Further is noted that the Panel has recognized the second edition of the WIPO Overview of Panel Views on Selected UDRP Questions and, where appropriate, will decide consistent with the new “WIPO Overview 2.0”.
A. Identical or Confusingly Similar
First, the Panel confirms that the Complainant has satisfied the threshold requirement of having trademark rights in the marks ARCELIK and BEKO.
The Complainant has provided sufficient evidence showing that it is the registered owner of a large number of ARCELIK trademarks. Additionally, the Complainant has shown evidence that it is the exclusive licensee of all registered BEKO trademarks (Annex 10 of the Complaint). As evidenced by the Complainant, both signs were registered as a trademark well before the registration of the disputed domain names.
Second, the Panel finds that the disputed domain names are identical to the Complainant’s trademarks. The disputed domain names are identical reflections of the registered trademarks ARCELIK and BEKO and do not incorporate any amendments or additions.
In this regard, it is noted that the addition of a “TLD” has no distinguishing effect and, as being a prerequisite of a domain name registration, is not to be considered within the assessment of identity or confusing similarity between the disputed domain names and the trademarks in question.
Given the findings above, the Panel concludes that the first requirement under paragraph 4(a) of the Policy is fulfilled.
B. Rights or Legitimate Interests
The Panel further finds that the Respondent has not demonstrated any right or legitimate interest in the disputed domain names.
While the burden of proof remains with the Complainant, the Panel has recognized 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 of the Respondent. Therefore, the Panel agrees 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, while the Respondent has failed to file any evidence or arguments to demonstrate a right or legitimate interest in the disputed domain names 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 trademark, license or any similar right to use the Complainant’s mark in the disputed domain names.
In contrast, 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. In the Panel’s view, it is clear that the disputed domain names never have been used in connection with a bona fide offering of goods or services. In the corresponding Turkcell Iletisim Hizmetleri A.S. v. Volkan Turk, WIPO Case No. DCO2011-0001, the Respondent even himself admits that all of his alleged 400 “.co” domain names (including the disputed domain names) have been registered only for the purpose to be transferred to the respective trademark owners against a compensation payment. The Panel finds that this apparently demonstrates that the Respondent cannot claim any right or legitimate interest in the disputed domain names.
Hence, the Panel concludes that the Complainant has also satisfied the requirements of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
The Panel is convinced that the Respondent has registered and is using the disputed domain names in bad faith. In the Panel’s view, the present case is a typical cybersquatting case in which the Respondent tries to gain unlawful benefit from selling hijacked domain names to the relevant trademark owners.
To begin with, the Panel is fully aware of the high reputation and recognition of the Complainant’s trademarks ARCELIK and BEKO. In particular in Turkey, both trademarks are among the brands with the highest public awareness in consumer products and home appliances. Hence, it is clear that the Respondent must have known these trademarks when it registered the disputed domain names in 2010.
Furthermore, the Panel finds that the Respondent’s defense arguments are not convincing at all. The Panel is in particular not convinced by the Respondent’s contention that he has registered the disputed domain names solely for the purpose of securing “.co” domain names for companies who failed to buy them on time “to forest all cybersquatting”; on the contrary, the Respondent’s own conduct appears to the Panel to be in the mould of a proto-typical cybersquatter. First, there is no indication in the case file that the Respondent has ever tried to obtain the Complainant’s consent to register the disputed domain names. Second, one needs to bear in mind that the Respondent has linked the disputed domain names to a website which appears to be an official homepage of the Complainant’s main competitor in Turkey. By doing this, it becomes apparent that the Respondent’s main purpose is to tarnish the Complainant’s trademarks and to in any account put pressure on the Complainant to pay ransom for the hijacked disputed domain names.
Overall, the Panel finds that the above reveals the Respondent to be a typical cybersquatter.
The Panel therefore concludes that the disputed domain names were registered and are being used in bad faith and that the Complainant consequently 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 domain names, <arcelik.co> and <beko.co> be transferred to the Complainant.
Dated: September 5, 2011