WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Turkcell Iletisim Hizmetleri A.S. v. Onur
Case No. DNL2010-0047
1. The Parties
The Complainant is Turkcell Iletisim Hizmetleri A.S. of Tepebasi, Istanbul, Turkey, represented by Istanbul Patent & Trademark Consultancy Ltd., Turkey.
The Respondent is Onur of Haarlem, the Netherlands.
2. The Domain Name and Registrar
The disputed domain name <turkcell.nl> (the “Domain Name”) is registered with SIDN.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 23, 2010. On July 27, 2010, the Center transmitted by email to SIDN a request for registrar verification in connection with the disputed domain name. On the same day, SIDN transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Dispute Resolution Regulations for .nl Domain Names (the “Regulations”).
In accordance with the Regulations, articles 5.1 and 16.4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on July 30, 2010. In accordance with the Regulations, article 7.1, the due date for Response was August 19, 2010. The Respondent did not submit a Response. Accordingly, the Center notified parties of Respondent’s default on August 20, 2010.
After receipt of the applicable fee, the Center appointed Wolter Wefers Bettink as the panelist in this matter on August 31, 2010. The Panel finds that it was properly constituted. The Panelist has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required to ensure compliance with the Regulations, article 9.2.
4. Factual Background
Complainant is a GSM based mobile communications company.
Complainant is, inter alia, the proprietor of various TURKCELL and TURKCELL + device trademarks registered with the Turkish Patent Office (“TPO”), a TURKCELL + device trademark registered with the United States Patent and Trademark Office (“USPTO”) and the Community figurative trademark TURKCELL ILETISIM HIZMETLERI A.S., registered under number 2525194 on June 6, 2003.
The Domain Name has been registered on October 21, 2004. The Domain Name directs to a parking page.
5. Parties’ Contentions
Complainant contends that the Domain Name is identical to its various TURKCELL trademarks.
Complainant claims that Respondent has no rights or legitimate interests in the Domain Name. According to Complainant Respondent has no trademark rights and is not commonly known by the Domain Name. Complainant also states that it has not permitted Respondent to use its trademarks.
Complainant asserts that the Domain Name is being registered or used in bad faith, because Respondent does not actively use the Domain Name and Respondent was aware of Complainant’s trademarks. Respondent’s intention was to capitalize on the goodwill of Complainant’s trademarks.
Respondent did not submit a Response.
6. Discussion and Findings
A. Identical or Confusingly Similar
Complainant has indicated to have registered various TURKCELL and TURKCELL + device trademarks with the TPO and the USPTO. Article 2.1 sub a I. of the Regulations requires the disputed domain name to be identical or confusingly similar to trademarks “protected under Dutch law in which the complainant has rights” (emphasis added). As the aforementioned trademarks are not valid in the Netherlands, they cannot be considered to be protected under Dutch law (see also Intershare, S.L. v. Mr. D. Marecaux, WIPO Case No. DNL2008-0036 and Implant Direct Europe AG v. Supracom B.V., WIPO Case No. DNL2008-0046).
Complainant has however also shown that it has rights in the Community figurative trademark TURKCELL ILETISIM HIZMETLERI A.S. In the Panel’s opinion ‘TURKCELL’ is the dominant element of this trademark, taking into account its prominent placement compared to the other elements.
The Domain Name is confusingly similar to Complainant’s trademark.
B. Rights or Legitimate Interests
The Panel finds that the dominant element of Complainant’s trademark consists of the descriptive terms ‘Turk’ and ‘Cell’, but that the combination is not descriptive or generic.
The Domain Name directs to a parking page. Complainant indicates that it has not granted permission to Respondent to use the trademark and that Respondent is not commonly known by the Domain Name. There is nothing in the record to refute Complainant’s assertions, nor is there any evidence that Respondent made demonstrable preparations to use the Domain Name (or a name corresponding to the Domain Name) in connection with a bona fide offering of goods or services or is making a legitimate noncommercial use of the Domain Name. In these circumstances, the Panel finds that Respondent’s use of the Domain Name is not based on a right or legitimate interest on the part of Respondent.
C. Registered or Used in Bad Faith
As set out above, the Panel does not consider Complainant’s Community trademark to be generic or descriptive. Taking also into account the fact that (i) Complainant started operating under the name Turkcell in 1994 in Turkey, (ii) according to evidence submitted by Complainant, the name Turkcell has appeared in international newspapers since 2000 and in Turkish media since 1998 and (iii) Turkcell has been the largest Turkish mobile operator for many years, the Panel deems it likely that Respondent was aware of Complainant’s rights in the TURKCELL trademark and name when he registered the Domain Name. Moreover, the name ‘Onur’, which is registered as the domain name holder, appears to the Panel to be a Turkish name which would be an indication that Respondent belongs to the Turkish community in the Netherlands, where Turkcell presumably is well-known.
In the opinion of this Panel, these circumstances also make it difficult to imagine a plausible good faith use of the Domain Name. In addition, by using the Domain Name for a parking page, it is likely that Respondent attempts to attract Internet users to its website, by creating a likelihood of confusion with Complainant’s trademark as to the source, affiliation, or endorsement of Respondent’s website.
Finally, by the registration of the Domain Name, Respondent prevents Complainant from registering its trademark as a domain name under the “.nl” top level domain.
Under these circumstances, the Panel concludes that the Domain Name has been registered and is being used in bad faith.
For all the foregoing reasons, in accordance with articles 1 and 14 of the Regulations, the Panel orders that the Domain Name <turkcell.nl> be transferred to Complainant.
Wolter Wefers Bettink
Dated: September 14, 2010