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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Turkcell Iletisim Hizmetleri A.S. v. Serdar Irmak

Case No. D2010-1911

1. The Parties

The Complainant is Turkcell Iletisim Hizmetleri A.S. of Istanbul, Turkey represented by Istanbul Patent & Trademark Consultancy Ltd. of Turkey.

The Respondent is Serdar Irmak of Atlanta, United States of America.

2. The Domain Name and Registrar

The disputed domain name <turk-cell.com> is registered with BullRunDomains.com LLC.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 9, 2010. On November 9, 2010, the Center transmitted by email to BullRunDomains.com LLC a request for registrar verification in connection with the disputed domain name. On November 10, 2010, BullRunDomains.com LLC 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 November 18, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was December 8, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 9, 2010.

The Center appointed Miguel B. O'Farrell as the sole panelist in this matter on December 14, 2010.

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 a Turkish leading mobile communications and the third biggest GSM operator in Europe, as well as one of the world's leading operators in international Roaming.

The Complainant owns trademark registrations for TURKCELL, particularly a United States of America registration No. 2806970, granted on January 20, 2004, a Community Trademark (CTM) registration No. 2525194, granted on June 6, 2003, and a Turkish registration No. 173130, granted on July 28, 1997.

The Respondent registered the disputed domain name <turk-cell.com> on February 12, 2009.

5. Parties’ Contentions

A. Complainant

The Complainant contends that it is a Turkish mobile communications company whose commercial activities began in 1994 by means of signing a 25-year GSM license agreement with Ministry of Transportation of the Republic of Turkey.

The Complainant also contends that Turkcell do not only stands as Turkey's leading operator but also enjoys the proud place of being the third biggest GSM operator in Europe, as well as one of the world's leading operators in international Roaming and that it stands at the world's summit in GPRS roaming.

Moreover, the Complainant contends that with its broad coverage and extensive international roaming capability, Turkcell offers its subscriber’s access to mobile communication services throughout Turkey and worldwide.

Furthermore, the Complainant contends that it owns trademark registrations for TURKCELL, which have been registered before the Respondent registered the disputed domain name on February 12, 2009. Particularly, it contends that it own a United States of America registration No. 2806970, granted on January 20, 2004, a Community Trademark (CTM) registration No. 2525194, granted on June 6, 2003, and a Turkish registration No. 173130, granted on July 28, 1997.

In that sense, the Complainant contends that the disputed domain name <turk-cell.com> is identical to a trademark in which the Complainant has rights, adding that the fact that the words “turk” and “cell” are divided by a hyphen does not avoid the likelihood of confusion.

On the other hand, the Complainant contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name and that the Complainant has not licensed or given any authorization to the Respondent to use the trademark TURKCELL.

In that connection, the Complainant contends that the Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services as the website to which the disputed domain name resolves contains sponsored links which offer competing goods and services to those offered by the Complainant.

The Complainant also contends that the Respondent has registered the disputed domain name in bad faith as it was or should have been aware of the Complainant and its trademark TURKCELL at the time of registering the disputed domain name <turk-cell.com>.

Moreover, the Complainant contends that by using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website and other online locations, by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website, what would evidence bad faith use of the disputed domain name.

Furthermore, the Complainant contends that the disputed domain name is for sale through the well-known auction site GoDaddy.

For all the above-mentioned, the Complainant requests that the disputed domain name be transferred to it.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

For the Complainant to succeed in a UDRP proceeding, under paragraph 4(a) of the Policy, the Complainant must prove that:

(i) The disputed domain name 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 in respect of the disputed domain name; and

(iii) The disputed domain name has been registered and is being used in bad faith.

In accordance with paragraph 15(a) of the Rules, the Panel shall decide the 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.

A. Identical or Confusingly Similar

The Complainant owns trademark registrations for TURKCELL.

The disputed domain name <turk-cell.com> incorporates the trademark TURKCELL in its entirety.

The mere addition of a hyphen between the terms “turk” and “cell” does not avoid the risk of confusion with the Complainant's mark.

In view of the foregoing, the Panel finds that the disputed domain name <turk-cell.com> is confusingly similar to a trademark in which the Complainant has rights, and therefore, the Complainant has succeeded on this first element under the Policy.

B. Rights or Legitimate Interests

According to paragraph 4(a)(ii), the second element that the Complainant must prove is that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Policy in its paragraph 4(c) sets out various ways in which a respondent may demonstrate rights or legitimate interests in a domain name.

Although the Policy states that the complainant must prove each of the elements in paragraph 4(a), it is often observed that it is difficult for a complainant to prove a negative, i.e., that a respondent has no rights or legitimate interests in respect of a domain name. It has therefore become generally accepted under the Policy that, once a complainant has presented a clear prima facie showing of a respondent's lack of rights or legitimate interests in a domain name, the burden of submitting evidence therefore shifts to the respondent. The respondent must then by concrete evidence demonstrate its rights or legitimate interests in the domain name in order to refute the prima facie case.

The Panel finds that the Complainant has made a prima facie case that the Respondent has no rights or legitimate interests in the domain name and so the burden of proof has effectively been shifted to the Respondent, who did not reply to the Complainant's contentions and, therefore, has not made such showing.

In that connection, the Complainant has submitted relevant evidence showing that the Respondent has not made a bona fide offering of goods or services. The website to which the disputed domain name resolves contains pay-per-click links that redirect Internet users to other online locations offering related goods or services to those offered by the Complainant.

In the terms of the Policy, such use in the present circumstances does not appear to be a noncommercial or fair use of the disputed domain name and, therefore, the Panel finds that the Respondent is trying to misleadingly divert consumers to the website to which the disputed domain name resolves. Moreover, the Panel finds that the Respondent is attracting Internet users to its website for commercial gain. Such use cannot be considered a bona fide use, or fair or noncommercial use.

Additionally, there is no evidence that the Respondent is commonly known as or identified by “turkcell” or that it has any right in it. Furthermore, there is no evidence showing that the Respondent operates a business or any other organization under the disputed domain name.

For these reasons, and in the absence of a plausible explanation from the Respondent, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name.

C. Registered and Used in Bad Faith

According to paragraph 4(a)(iii) of the Policy, the third element that a complainant must prove is that the domain name has been registered and is being used in bad faith.

The Policy in paragraph 4(b) sets out various circumstances, which may be treated by the Panel as evidence of the registration and use of a domain name in bad faith.

The Complainant has identified itself as the Turkish leading mobile communications company whose commercial activities began in 1994 and as the third biggest GSM operator in Europe, as well as one of the world's leading operators in international Roaming.

Moreover, the Complainant has filed relevant evidence to the Panel’s satisfaction showing that it owns trademark registrations for TURKCELL, which have been registered before the Respondent registered the disputed domain name on February 12, 2009. Particularly, a United States of America registration No. 2806970, granted on January 20, 2004, where the Respondent is apparently domiciled.

In view of the foregoing, and in the absence of a rebuttal from the Respondent, the Panel finds that the Respondent was aware or must have been aware of the trademark TURKCELL before registering the disputed domain name <turk-cell.com>, which evidences bad faith registration.

Moreover, as stated by the Complainant and on the basis of the printouts of the website to which the disputed domain name resolves, and in the absence of a rebuttal by the Respondent, the Panel finds that by using the disputed domain name the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line locations, by creating a likelihood of confusion with the Complainant's trademark as to the source, sponsorship, affiliation or endorsement.

For these reasons, the Panel finds that the Respondent both registered and is using the disputed domain name in bad faith and that the Complainant has therefore made out the third element of its case.

7. Decision

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 <turk-cell.com> be transferred to the Complainant.

Miguel B. O’Farrell
Sole Panelist
Dated: December 24, 2010

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