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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Turkcell Iletisim Hizmetleri A.S. v. Betik Bilgi Teknolojileri and Yasin SARI, DOMAIN AVCISI

Case No. D2012-1953

1. The Parties

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

The Respondent is Betik Bilgi Teknolojileri of Phoenix, Arizona, United States of America (“US”) and Yasin SARI, DOMAIN AVCISI of Ankara, Turkey.

2. The Domain Name and Registrar

The disputed domain name <turkcelltv.net> (the “Domain Name”) is registered with NameSilo, LLC (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 3, 2012. On October 4, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On October 4, 2012, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on October 11, 2012 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on October 12, 2012.

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 October 12, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was November 1, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 2, 2012.

The Center appointed William P. Knight as the sole panelist in this matter on November 12, 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 Domain Name was the subject of the proceedings Turkcell Iletisim Hizmetleri A.S. v. Alan Adi Sahibi Gizli / turk-cell-tv Video Sitesi ibrahim caglayan, WIPO Case No. D2011-2041, involving an unrelated respondent, in which it was found, relevantly, that the word “Turkcell” is a trademark of the Complainant with a substantial reputation in Turkey, to which the Domain Name is confusingly similar, the suffix “tv” not serving to create a distinctive or different impression from the dominant component of the Domain Name, that is “turkcell”. The other requirements of the Policy being met in those proceedings, the learned panelist ordered that the Domain Name be transferred to the Complainant. However, the Domain Name lapsed before this ruling was acted upon, and the present Respondent registered the Domain Name on May 27, 2012. According to the Complainant, the website at the Domain Name “announced” that the Domain Name was on sale on “www.sedo.com” domain trading website (page 17 of the Complaint). This is confirmed with the printout of the website at the time the Center notified the Complaint. At the time of this Decision, the Domain Name resolves (at the location of the Panel) to a “pseudo-facebook” website, which in the Panel’s opinion appears to be a “phishing” scam.

5. Parties’ Contentions

A. Complainant

In accordance with paragraph 4(a) of the UDRP, the Complainant asserts, inter alia, as follows:

(a) that the Domain Name is confusingly similar to the name of the Complainant, which has been in business in Turkey since 1994, and a number of registered trademarks incorporating the word “Turkcell”;

(b) that the Respondent has no rights or legitimate interests in respect of the Domain Name;

(c) that the Domain Name has been registered and is being used in bad faith.

The Complainant’s assertion in respect of (a) is supported, in short, by the facts of the Complainant’s substantial reputation in Turkey, as well as its many registered trademarks mentioned in the Complaint, including a Community Trademark consisting of its own name and a United States trademark TURKCELL device. It is noted that the services of the Complainant include the provision of online/mobile television services by means of its website “www.turkcelltv.com.tr”. The Complainant provides live broadcasting of fifty one television channels, delayed communication of television programs, as well as movies not yet shown on television and rent-a-movie services. TURKCELLTV is a registered trademark of the Complainant and also its variations are the subject of applications for registration before the Turkish Patent Office.

In respect of (b) and (c), the Complainant observes that there is no evidence that the Respondent or his company is commonly known by any word similar to the Domain Name. Clearly, as the Respondent would appear to be a Turkish resident or someone with a connection to Turkey, he must have been aware of the Respondent and that the Domain Name could not be used in Turkey or any country within the range of operations of the Complainant in respect of telecommunications or television services without infringing the Complainant’s trademark rights. The Respondent himself has not given any explanation as to why he might have a legitimate interest in the Domain Name, which the Complainant claims is being offered for sale via Sedo.

The Complainant requests transfer to it of the Domain Name.

B. Respondent

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

6. Discussion and Findings

The onus is on the Complainant to prove each of the three elements set out in paragraph 4(a) of the UDRP.

However, the Respondent has had ample opportunity to respond to the allegations of the Complainant and has not done so. The Respondent cannot be in a better position by failing to respond than if he had chosen to take advantage of the opportunities afforded to him, expressly, by paragraph 4(c) of the UDRP.

Paragraph 15(a) of the Rules instructs the Panel to decide a complaint on the basis of the statements and documents submitted in accordance with the UDRP, the Rules and any rules and principles of law that it deems applicable. In the absence of any response from the Respondent, the onus upon the Complainant will be satisfied if a conclusion which is capable of being drawn from the evidence provided by the Complainant is not contradicted by the Respondent; see Alcoholics Anonymous World Services, Inc. v. Lauren Raymond, WIPO Case No. D2000-0007; Ronson Plc v Unimetal Sanayi ve Tic A.S., WIPO Case No. D2000-0011 among numerous other UDRP decisions.

A. Identical or Confusingly Similar

The reputation and trademark rights of the Complainant, and the confusingly similar nature of the Domain Name to the Complainant’s name and marks, have already been ruled upon by the learned panellist in Turkcell Iletisim Hizmetleri A.S. v. Alan Adi Sahibi Gizli / turk-cell-tv Video Sitesi ibrahim caglayan, WIPO Case No. D2011-2041, who is of course familiar with the Turkish marketplace. The Panel does not propose to traverse that decision on these issues, which is in any event amply supported by the evidence put to the Panel by the Complainant in these proceedings.

In view of the above, the Panel finds that the Domain Name is confusingly similar to the Complainant’s trademarks.

B. Rights or Legitimate Interests

The Complainant maintains that no licence or other permission has been granted by it to allow the Respondent to register or use the Domain Name.

It is difficult to conclude, in the absence of any explanation from the Respondent, that the Respondent was not aware of the Complainant’s reputation or to infer a legitimate use of the Domain Name by the Respondent. The coincidence between the Domain Name and the name of the Complainant, the nature of its business and its actual trademark registrations would be simply too great to accept that the Domain Name was legitimately and independently decided upon by the Respondent without credible explanation from him.

Furthermore, the fact that no legitimate use of the Domain Name appears to have been made by the Respondent since its registration strongly suggests, in the circumstances of this case, that the Respondent has acquired the Domain Name with no proper business or other interest in it.

In view of the above, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name.

C. Registered and Used in Bad Faith

The Complainant contends that the Respondent registered the Domain Name in bad faith, basing the allegation on the following:

1. the Respondent’s likely actual knowledge of the Complainant and its trademarks;

2. the Respondent’s offer to sell the Domain Name on Sedo’s website.

In this case, the Respondent apparently being a resident of or somehow connected with Turkey and given the substantial reputation of the Complainant in Turkey, the Panel finds that the Respondent did register the Domain Name in bad faith. It cannot be denied that the Respondent must have known of the Complainant’s trademarks and reputation in the area of telecommunications in Turkey, would appear to have no connection with the Complainant or otherwise with the name “Turkcell”, could not use the Domain Name in respect of any telecommunications services in Turkey, the European Union or the United States without mostly likely infringing upon the Complainant’s trademark rights, has made no apparent legitimate use of the Domain Name and has not responded to the allegations of the Complainant.

The fact that the Domain Name currently resolves to a “pseudo-facebook” website (at the location of the Panel) does not change the Panel’s findings.

7. Decision

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 <turkcelltv.net> be transferred to the Complainant.

William P. Knight
Sole Panelist
Dated: November 14, 2012

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