WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Akbank Turk A.S. v. Ramazan Yaylaoglu
Case No. D2008-0575
1. The Parties
Complainant is Akbank Turk A.S. of Istanbul, Turkey, represented by Istanbul Patent & Trademark Consultancy Ltd., Turkey.
Respondent is Ramazan Yaylaoglu of Sinop, Turkey.
2. The Domain Name and Registrar
The disputed domain name <akbank.name> is registered with Directi Internet Solutions d/b/a PublicDomainRegistry.Com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 14, 2008. On April 15, 2008, the Center transmitted by email to Directi Internet Solutions d/b/a PublicDomainRegistry.Com a request for registrar verification in connection with the disputed domain name. On April 17, 2008, Directi Internet Solutions d/b/a PublicDomainRegistry.Com 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 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 Respondent of the Complaint, and the proceedings commenced on May 8, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was May 28, 2008. Respondent did not submit a formal response. Accordingly, the Center notified Respondent’s default on May 29, 2008.
The Center appointed Nasser A. Khasawneh as the sole panelist in this matter on June 4, 2008. 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
Complainant Akbank is a top tier bank and offers a wide range of retail and commercial banking products and other financial services in Turkey and abroad. Complainant’s bank was founded in 1947 and is currently headquartered in Istanbul, and has an extensive branch network throughout Turkey. The shares of Akbank are traded on the Istanbul Stock Exchange.
Akbank holds a considerable number of trade and service marks registrations in Turkey and in other jurisdictions in addition to International registrations under the Madrid Protocol. The oldest of the Turkish registrations dates back to an application date of 1996.
Respondent registered the disputed domain name <akbank.name> on February 16, 2008. The disputed domain name <akbank.name> does not currently resolve to an active site.
5. Parties’ Contentions
Complainant seeks transfer of the disputed domain name on the basis of the following contentions:
1. That Complainant owns an extensive portfolio of trademarks including the AKBANK trademarks and service marks, that Complainant is now the largest bank in Turkey, is widely known in Turkey, regionally and internationally, and that the disputed domain name is identical to Complainant’s marks;
2. That Respondent has no rights or legitimate interest in the disputed domain name, that Respondent has not been commonly known by the name, that the only interest that Respondent may have is “to somehow create a connection to the Complainant and its trademark AKBANK”, and that the only way Respondent would have a right to use the disputed domain name would be if Complainant had specifically granted that right, which Complainant did not grant;
3. That Respondent, as a Turkish citizen, is clearly aware of Complainant’s extensive goodwill and reputation in its AKBANK trade and service marks;
4. That Respondent registered and is using the disputed domain name in bad faith, and that Respondent registered the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the owner of the trademark for valuable consideration in excess of the domain name registrant’s out-of-pocket costs for the following reasons:
(a) The website to which the disputed domain resolves is inactive, and this fact alone supports bad faith use and registration;
(b) Respondent is located in Turkey, so it would be difficult to imagine that he would not have been aware of the trademarks of Complainant, and this is a strong indication that Respondent intends to create an association with Complainant’s trademark;
(c) That registering a domain name of a well-known trademark is necessarily in bad faith where there were no legitimate plans for permissible uses.
5. That Respondent registered the disputed domain name in order to prevent Complainant from reflecting the mark in a corresponding domain name, as Respondent has constructive knowledge of the trademark rights of Complainant in relation to the disputed domain name;
6. That any use of the disputed domain name by Respondent would necessarily result in infringing the trademark rights of Complainant.
Respondent did not submit a formal reply to Complainant’s contentions. On May 25, 2008, however, Respondent sent the following email to the Center, reproduced here in its entirety:
I was buying the akbank.name domain at 29.02.2008
I just buided the blog this domain and I erased later.
I never wrote the bad words in this domain
I never try the saling to Akbank T.A.S.
I never show the adverting in this domain
And I closed the this domain at 10/03/2008 and I didn’t use again.
And I never be faulty behavior this subject
Good job and Have a nice Day
6. Discussion and Findings
The Rules require the Panel to decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. Rules, paragraph 15(a). Complainant must establish each element of paragraph 4(a) of the Policy, namely:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
Complainant must establish these elements even if Respondent does not reply. The Vanguard Group, Inc. v. Lorna Kang, WIPO Case No. D2002-1064. In the absence of a Reply, the Panel may also accept as true the factual allegations in the Complaint. E.g., ThyssenKrupp USA, Inc. v. Richard Giardini, WIPO Case No. D2001-1425 (citing Talk City, Inc. v. Michael Robertson, WIPO Case No. D2000-0009).
A. Identical or Confusingly Similar
The Panel finds that the disputed domain name is identical or confusingly similar to Complainant’s registered AKBANK trademarks. The disputed domain name <akbank.name> is identical to Complainant’s trademarks as panels disregard the gTLD suffix in evaluating confusing similarity. E.g., VAT Holding AG v. Vat.com, WIPO Case No. D2000-0607; Shangri-La International Hotel Management Limited v. NetIncome Ventures Inc., WIPO Case No. D2006-1315.
The requirements in paragraph 4(a)(i) of the Policy therefore are fulfilled.
B. Rights or Legitimate Interests
The Panel also concludes that Respondent has no rights or legitimate interests in the disputed domain name.
The Policy contains a non-exhaustive list of circumstances that may demonstrate when a respondent has rights or legitimate interests in a domain name. The list includes: (1) using the domain name in connection with a bona fide offering of goods and services; (2) being commonly known by the domain name; or (3) making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers. Policy, paragraphs 4(c)(i)–(iii).
A complainant must show a prima facie case that a respondent lacks rights or legitimate interests. E.g., Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455. The absence of rights or legitimate interests is established if a complainant makes out a prima facie case and the respondent enters no response. Id., (citing De Agostini S.p.A. v. Marco Cialone, WIPO Case No. DTV2002-0005).
Complainant avers that Respondent is not commonly known by the disputed domain name, that as a Turkish citizen, Respondent necessarily knew of Complainant’s marks, intended to trade on their notoriety, and that Respondent was without any license or authorization by Complainant.
Since Respondent did not rebut these particular allegations of the Complaint, and did not submit a Reply to the Complaint raising other pertinent contentions, the Panel accepts as true Complainant’s specific factual averments, namely: that Respondent is not commonly known by the disputed domain name; that Respondent was and is aware of Complainant’s marks; and that Respondent lacked license or authorization by Complainant to use its marks in the disputed domain name.
The Panel therefore finds that Respondent’s use of the disputed domain name demonstrates Respondent’s lack of a legitimate noncommercial interest in, or fair use of, the domain name.
Filing no response, Respondent has not demonstrated that he was making preparations to use the disputed domain name,1 and Respondent has not invoked any of the circumstances of paragraph 4(c) of the Policy to support the existence of its “rights or legitimate interests” in use of the domain name.
Accordingly, the Panel finds that paragraph 4(a)(ii) of the Policy is satisfied
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides a list circumstances that suggest bad faith registration. That list is not exhaustive, however, and panels may draw inferences about bad faith registration or use in light of the circumstances, such as whether there is no response to the complaint, whether the complainant has particularly strong trademark rights, and whether there exists a lack of conceivable good faith uses for the domain name. Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003.
In this case, the Panel is convinced that Respondent was aware and must have had constructive knowledge of the goodwill of the AKBANK trade and service marks before registering the disputed domain name. The Panel also agrees with Complainant that Respondent’s passive holding of the domain name suggests that it registered the domain name for the purpose of selling it to Complainant for profit.
Moreover, under these circumstances, the Panel agrees that there is no conceivable good faith use for the disputed domain name by Respondent. See Cellular One Group v. Paul Brien, WIPO Case No. D2000-0028; Telstra Corp., supra. Cf. Veuve Clicquot Ponsardin, Maison Fondée en 1772 v. The Polygenix Group Co., WIPO Case No. D2000-0163 (use of well-known mark suggested opportunistic bad faith).
Therefore, the Panel finds for Complainant on 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 <akbank.name> be transferred to Complainant.
Nasser A. Khasawneh
Dated: June 18, 2008
1 Respondent’s email of May 25, 2008 suggests that he already abandoned plans to make active use of the domain name.