WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
FINANSBANK A.Ş. v. Muhammed Mustafa Topkaya
Case No. DCO2012-0017
1. The Parties
The Complainant is FINANSBANK A.Ş. of Istanbul, Turkey, represented by Nilay Arabacıoğlu, Turkey.
The Respondent is Muhammed Mustafa Topkaya of Istanbul, Turkey.
2. The Domain Name and Registrar
The disputed domain name <finansbank.co> is 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 May 31, 2012. On May 31, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 5, 2012, 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 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 Respondent of the Complaint, and the proceedings commenced on June 13, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was July 3, 2012. On June 19, 2012, the Complainant forwarded to the Center an email communication in Turkish that it received from the Respondent. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 4, 2012. The Center received an informal email communication from the Respondent on July 5, 2012.
The Center appointed Dilek Ustun Ekdial as the sole panelist in this matter on July 10, 2012. 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 one of the Turkey’s well-known private banks. It is the registered proprietor of several service mark registrations and domain names comprising its name “Finansbank”. It has traded under and by reference to the “Finansbank” name for very long time.
The disputed domain name was registered on December 28, 2011.
5. Parties’ Contentions
The Complainant contends that the disputed domain name is confusingly similar to its FINANSBANK service mark, that the Respondent has no rights or legitimate interests in respect of the disputed domain name and that the disputed domain name was registered and is being used in bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Scope of the Policy
Paragraph 4(a) of the Policy requires that the complainant prove each of the following three elements to obtain a decision that a domain name should be either cancelled or transferred:
(i) The domain name registered by the respondent 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 with respect to the domain name; and
(iii) The domain name has been registered and is being used in bad faith.
Paragraph 4(b) of the Policy sets forth four situations under which the registration and use of a domain name is deemed to be in bad faith, but does not limit a finding of bad faith to only these situations.
B. Language of the Proceeding
The Complaint has been submitted in Turkish. Pursuant to the Rules, paragraph 11, in the absence of an agreement between the parties, or specified otherwise in the registration agreement, the language of the administrative proceeding shall be the language of the registration agreement, subject to the authority of the Administrative Panel to determine otherwise.
According to information which was received from the Registrar, the language of the registration agreement for the disputed domain name is English. Therefore, in consideration of the above circumstances the Panel hereby decides, under paragraph 11 of the Rules, that English shall be the language of administrative proceeding in this case.
C. Identical or Confusingly Similar
The disputed domain name is identical to the Complainant’s FINANSBANK mark.
The Panel concurs with the opinion of several prior UDRP panels which have held that, when a domain name wholly incorporates a complainant’s registered mark that may be sufficient to establish confusing similarity for purposes of the Policy. See, e.g., Kabushiki Kaisha Hitachi Seisakusho (d/b/a Hitachi Ltd) v. Arthur Wrangle, WIPO Case No. D2005-1105; Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903; Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr., WIPO Case No. D2000-1525; EAuto, L.L.C. v. Triple S. Auto Parts d/b/a Kung Fu Yea Enterprises, Inc., WIPO Case No. D2000-0047; Bayerische Motoren Werke AG v. bmwcar.com, WIPO Case No. D2002-0615.
Additionally, as the Respondent is in default, it has brought no argument to support the contention that the disputed domain name is not identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
Therefore, the Panel finds that the requirement of paragraph 4(a)(i) of the Policy is met.
D. Rights or Legitimate Interests
The Respondent has not provided any evidence of the type specified in paragraph 4(c) of the Policy, or of any other circumstances giving rise to a right or legitimate interest in the disputed domain name. It is clear that the Respondent has not demonstrated any bona fide offering of goods and services by its use of the disputed domain name and has not rebutted the Complainant’s prima facie case. Nor has the Respondent shown that it has been commonly known by the disputed domain name. The Complainant showed, inter alia, that the Respondent has neither a license nor any other permission to use the disputed domain name. The Panel finds that the Complainant has made a prima facie case that the Respondent lacks rights or legitimate interests, and the Respondent has failed to demonstrate such rights or legitimate interests.
The Panel finds that given the use made of the disputed domain name, when the Respondent registered the disputed domain name it knew that FINANSBANK was the trademark of the Complainant. It registered the disputed domain name because it would be recognized as such.
The Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
E. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides a list of indicative circumstances that suggest bad faith registration. However, such list is not exhaustive and a finding of bad faith depends on the circumstances of each case.
The examples of bad faith registration and use set forth in paragraph 4(b) of the Policy are not meant to be exhaustive of all circumstances from which such bad faith may be found. See Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003.
The Panel considers it an inescapable conclusion from the undisputed facts and circumstances reflected in the record that the Respondent knew of and had in mind the Complainant’s marks when registering the disputed domain name. See generally Ticketmaster Corporation v. Spider Web Design, Inc., WIPO Case No. D2000-1551. As noted in Research In Motion Limited v. Dustin Picov, WIPO Case No. D2001-0492, when a domain name is so obviously connected with a complainant, the very use of the domain name by a registrant with no connection to the complainant suggests “opportunistic bad faith”. See also Paule Ka v. Paula Korenek, WIPO Case No. D2003-0453. In view of the foregoing, and for reasons discussed as well under the preceding heading, the Panel can ascribe no motive for the Respondent’s registration and use of the disputed domain name as reflected in the record except to trade on the goodwill associated with the Complainant’s mark.
There is no suggestion that the Respondent had any intention of legitimate use, that it enjoys a connection to the disputed domain name or that there is conceivable good faith use for the disputed domain name. After examining all circumstances surrounding the registration and use of the disputed domain name, the Panel finds that the Respondent registered and is using the disputed domain name in bad faith.
The Respondent’s bad faith is also shown by its use of the disputed domain name or lack thereof. The Respondent has apparently placed no content on the website at “www.finansbank.co” that relates to a business or has been created by the Respondent except “under construction” notice.
Lastly, the disputed domain name was registered by the Respondent primarily for the purpose of selling it to the Complainant for an amount exceeding out-of-pocket expenses related to the registration and upkeep of the disputed domain name.
Accordingly the Panel finds in favour of the Complainant on the third element 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 name <finansbank.co> be transferred to the Complainant.
Dilek Ustun Ekdial
Date: July 24, 2012