WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Alarko Holding A.S. v. “,”
Case No. D2007-0909
1. The Parties
The Complainant is Alarko Holding A.S., Istambul, Turkey, represented by Istanbul Patent & Trademark Consultancy Ltd., Turkey.
The Respondent is “,”.
2. The Domain Name and Registrar
The disputed domain name <alarko.com> is registered with Go Daddy Software.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 20, 2007. On June 22, 2007, the Center transmitted by email to Go Daddy Software a request for registrar verification in connection with the domain name at issue. On June 22, 2007, Go Daddy Software transmitted by email to the Center its verification response confirming that the Respondent was listed as the registrant and providing certain of the contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on July 12, 2007. 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”), 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 16, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was August 5, 2007. The Respondent did not submit any Response.
Accordingly, the Center notified the Respondent’s default on August 7, 2007.
The Center appointed Adam Taylor as the sole panelist in this matter on August 29, 2007. 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 the holding company of a Turkish group of companies which has been trading as “Alarko” since 1972. The group employs more than 6,000 people and has interests in a range of businesses including manufacturing, trading, engineering, tourism, land development, construction and energy.
The Complainant operates a website at “www.alarko.com.tr”, having registered that domain name on August 22, 1996.
The Complainant owns a number of ALARKO-related trademarks registered with the Turkish Patent Office including trademark No. 161613 filed August 3, 1995, consisting of the stylized word “ALARKO” with a small device.
The disputed domain name was registered on January 23, 1996.
As of June 20, 2007, the disputed domain name was held in proxy in the name of “Domains by Proxy, Inc”. At that date, there was a website at the domain name consisting of a parking page with a directory of sponsored links to a diverse range of websites.
As of July 16, 2007, the whois details for the disputed domain name had changed such that only a comma appeared in the registrant field. The only other contact details shown were an administrative contact email address with username “mehmetkahveci” and a technical contact email address with username “nocontactsfound”. No physical addresses or telephone or fax numbers were shown. At that date, there was still a directory website at the domain name.
5. Parties’ Contentions
Identical or Confusingly Similar
The Complainant satisfies the first factor under Paragraph 4(a) of the Policy by virtue of its registered trademarks and use of ALARKO as a trade name since 1972.
Rights or Legitimate Interests
The Complainant has not licensed or otherwise permitted the Respondent to use its marks.
The fact that the Respondent is hiding its identity shows that it has no legitimate interests in the domain name. Its only interest is to create a connection to the Complainant.
The Respondent has not used the domain name commercially nor has it been commonly known by the domain name.
The Respondent is aware of the Complainant’s extensive goodwill and reputation in its mark ALARKO.
The Respondent registered the domain name incorporating the Complainant’s mark solely to profit by means of sponsored links from traffic generated by the fame of the mark.
Registered and Used in Bad Faith
The Respondent has not attempted to sell the domain name to the Complainant and does not actively use it.
The Respondent has taken deliberate steps to conceal its identity. As a consequence the Complainant was unable to commence legal proceedings against the Respondent based on trademark infringement.
The Complainant’s mark is well known and the Respondent must have been aware of it.
The Respondent owns many domain names reflecting trademarks of many well respected Turkish companies.
The Respondent has been the subject of a number of three adverse UDRP decisions.
The Respondent registered the domain name in order to prevent the owner of the mark from reflecting the mark in the corresponding domain name and from offering online services through said domain name. The Respondent knew he could not use the disputed domain name without infringing the Complainant’s trademarks.
In accordance with the decision in Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003 the disputed domain name is being used in bad faith arising from passive holding by the Respondent in addition to the fame of the mark, the Respondent’s lack of use of the domain name and its efforts to conceal its identity.
The Respondent registered the domain name for the purpose of sale to the Complainant for profit.
The parking of the domain name to obtain revenue through sponsored results is also evidence of bad faith.
The Respondent did not submit any substantive reply to the Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Complainant has established common law rights in the mark ALARKO by virtue of its extensive trading activities under that name since 1972. The disputed domain name is identical to this mark, disregarding the domain suffix.
The word “Alarko” is by far the most prominent feature of the Complainant’s Turkish registered trademark No. 161613 mentioned above. In the Panel’s view the disputed domain name is confusingly similar to this registered trademark.
The Panel concludes that the disputed domain name is both identical and confusingly similar to trademarks in which the Complainant has rights. The Panel therefore finds that the Complainant has established the first element of the Policy.
B. Rights or Legitimate Interests
The Complainant must establish at least a prima facie case under this heading and, if that is made out, the evidential onus shifts to the Respondent to rebut the presumption of absence of rights or legitimate interests thereby created. See, e.g., Atlas Copco Aktiebolag v. Accurate Air Engineering, Inc., WIPO Case No. D2003-0070.
The Complainant has not licensed or otherwise authorized the Respondent to use its trademark.
As to paragraph 4(c)(i) of the Policy, the only use of the disputed domain name of which the Panel is aware is as a directory site with a list of affiliate links unrelated to the domain name. This is not of itself bona fide use within the meaning of the Policy.
There is no evidence before the Panel that paragraphs 4(c)(ii) or (iii) of the Policy apply.
The Panel finds that the Complainant has established a prima facie case of lack of rights and legitimate interests and there is no rebuttal by the Respondent.
The Panel concludes that the Respondent has no rights or legitimate interests in the disputed domain name and that the Complainant has therefore established the second element of the Policy.
C. Registered and Used in Bad Faith
The Respondent is listed simply as “,” because this is all that currently appears in the registrant field for the disputed domain name. However, in the circumstances of the case, the Panel considers it reasonable to infer that the controller of the domain is in fact “Mehmet Kahveci” whose name appears as the username in the email address for the administrative contact.
Mehmet Kahveci has been the subject of at least three UDRP cases: Yildiz Holding A.S., Ülker Gida Sanayi Ve Ticaret A.S. v. Dr. Mehmet Kahveci, WIPO Case No. D2002-1141, Akbank v. Dr. Mehmet Kahveci, WIPO Case No. D2001-1488 and Vestel Elektronik Sanayi ve Ticaret AS v. Mehmet Kahveci, WIPO Case No. D2000-1244. In each case the respondent was found to have registered and used in bad faith a domain name reflecting the trademark of a Turkish business.
The Panel also notes the following:
The ALARKO mark, which has been used for 35 years, is clearly well-known in Turkey and internationally.
The Respondent has apparently taken steps to conceal its identity by omitting the registrant name and other contact details from the whois data.
The Respondent has not come forward to deny that the Complainant’s assertions of bad faith let alone offer any explanation for its registration and use of the disputed domain name.
The Panel concludes from the foregoing that the Respondent has registered and used the disputed domain name in bad faith in accordance with paragraph 4(b)(ii) of the Policy. The Panel is satisfied that the Respondent has in all likelihood registered the domain name in order to prevent the Complainant from reflecting the mark in a corresponding domain name, having engaged in a pattern of such conduct.
The Panel therefore finds that the Complainant has established the third element of the Policy.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <alarko.com> be transferred to the Complainant.
Dated: September 12, 2007