WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Finansbank A.Ş. v. finansbanksikayet.com / Whois Privacy Protection Service, Inc. / ar ge, mehmet yilmaz

Case No. D2013-1963

1. The Parties

The Complainant is Finansbank A.Ş. of Istanbul, Turkey, represented internally.

The Respondent is finansbanksikayet.com / Whois Privacy Protection Service, Inc. of Bellevue, Washington, United States of America (“US”) / ar ge, mehmet yilmaz of Ankara, Turkey.

2. The Domain Name and Registrar

The disputed domain name <finansbanksikayet.com> is registered with Name.com LLC (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 19, 2013. On November 19, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 25, 2013, 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 December 2, 2013, 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 December 6, 2013.

On December 2, 2013, the Center transmitted the language of the proceedings document to the parties in both English and Turkish. On December 3, 2012, the Complainant requested Turkish to be the language of the proceedings. On December 3, 2012, the Respondent requested that English be the language of the proceedings.

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 December 9, 2013. In the Notification of Complaint transmitted in both in English and Turkish, the Center noted that it would accept a Response in either English or Turkish, and would appoint a panel familiar with both languages, if available. In accordance with the Rules, paragraph 5(a), the due date for Response was December 29, 2013. The Response was filed with the Center on December 11, 2013.

The Center appointed Gökhan Gökçe as the sole panelist in this matter on January 10, 2014. 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, Finasbank A.Ş., is one of the Turkey’s well-known private banks founded in 1987.

The Complainant is the owner of the registered trademark FINANSBANK & design as a word and figure mark in several classes in Turkey. A copy of trademark registration certificate is attached to the Complaint. The earliest protection date as listed in the Turkish trademark registry with respect to the Complainant’s trademark is September 5, 2000.

The Complainant has also registered the trademark FINANSBANK as domain names under several generic Top-Level Domains (“gTLD”) and country-code Top-Level Domains (“ccTLD”), including <finansbank.com.tr> (created on May 16, 1997). The registration of these domain names predates the registration of the disputed domain name.

The disputed domain name was registered on October 4, 2013. The Panel visited the disputed domain name on January 20, 2014, and observed that the disputed domain name is used in connection with a Turkish-language website providing a platform for users to express their opinions and experiences with the Complainant’s services. The website also contains advertisements related to banking and other activities, as well as sections which state “You can advertise here”. (a screen shot of the page is provided in the annexes to the Complaint).

5. Parties’ Contentions

A. Complainant

In accordance with paragraph 4(b)(i) of the Policy, the Complainant requests that the disputed domain name be transferred to the Complainant. The Complainant submits the grounds for these proceedings listed in paragraph 4(a) of the Policy.

Identical or Confusingly Similar

The Complainant asserts that the disputed domain name comprises the term “finansbank” which is identical to its registered trademark FINANSBANK. The Complainant states that the only difference between the Complainant’s trademark and the disputed domain name is the addition of the word “sikayet” to the Complainant’s trademark which does not have an impact on the finding of confusing similarity. The Complainant states that there is confusing similarity between the Complainant’s trademark and the disputed domain name.

Rights or Legitimate Interests

The Complainant asserts that it does not have any relationship with the Respondent and that it did not grant the Respondent any rights to register or use the disputed domain name as the owner of the trademark FINANSBANK.

The Complainant further asserts that there is no evidence to suggest that the Respondent is commonly known by the disputed domain name.

The Complainant claims that the disputed domain name is used in connection with a website which is presented as if it is created by the Complainant. The Complainant further claims that the Respondent is gathering complaints in bad faith and because the complaints are not evaluated, the website is damaging the Complainant.

Registered and Used in Bad Faith

The Complainant contends that the disputed domain name is registered in bad faith because it is the same as the Complainant’s well-known registered trademark FINANSBANK and the Respondent cannot have any justification to use the Complainant’s trademark. The Complainant states that the Respondent is a Turkish resident and is in a position to harm the Complainant.

The Complainant alleges that the customers provide their personal information on the website associated with the disputed domain name assuming that the website is operated by the Complainant and the Respondent is causing damage to the customers and the Complainant’s reputation.

The Complainant further alleges that the use of the Complainant’s advertisements and logo on the website associated with the disputed domain name is strong evidence of the Respondent’s bad faith.

B. Respondent

The Respondent states that there is no content on the website claiming that the website is an official website of the Complainant and that the sole purpose of the website is to provide an online platform to the people who have complaints, problems or ideas about the Complainant.

The Respondent further states that the website is a platform for him to express his feelings about the bank and that he is making legitimate fair use of the disputed domain name. The Respondent denies the Complainant’s allegations with respect to collection of customer information.

The Respondent also states that he has other similar websites such as <akbanksikayet.com> and <isbankasisikayet.com>, where his sole purpose is to provide a platform to people who have complaints about the companies.

6. Discussion and Findings

6.1 Language of the Proceedings

Under paragraph 11(a) of the Rules, unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceedings shall be the language of the Registration Agreement. In the present case, as confirmed by the current Registrar of the disputed domain name, the language of the Registration Agreement is English.

The Complainant submitted its Complaint in Turkish and requested the language of the proceedings to be Turkish. The Respondent requested the language of the proceedings to be English, however did not object to the language of the Complainant’s filing. There is no agreement between the parties with respect to the language of the proceedings.

Pursuant to paragraph 11(a) of the Rules, in the absence of an agreement between the parties with respect to the language of the proceedings, the Panel is granted power to determine the language of the proceedings having regard to the circumstances of the case.

Taking into consideration the language of the Registration Agreement and the Respondent’s request for English to be the language of the proceedings, the Panel decides the language of the proceedings to be English. However, the Panel accepts the Complaint in Turkish, as the Respondent appears to understand Turkish, and having the Complainant translate the Complaint would be unnecessarily time consuming and costly.

6.2. Substantive Elements of the Policy

The Panel turns to the merits of the case. Paragraph 4(a) of the Policy sets forth the following three elements which the Complainant must prove, during the administrative proceedings, to merit a finding that the disputed domain name be transferred to the Complainant:

(a) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(b) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and

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

Pursuant to paragraph 15(a) of the Rules, the Panel shall 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.

A. Identical or Confusingly Similar

The Policy simply requires the Complainant to demonstrate that the disputed domain name is identical or confusingly similar to a trademark in which the Complainant has rights. The Panel is satisfied that the Complainant is the owner of the trademark FINANSBANK as evidenced in the annexes to the Complaint.

In relation to the disputed domain name, it is clear that the disputed domain name fully incorporates the Complainant’s trademark and the only difference between the disputed domain name and the Complainant’s trademark is the addition of the word “sikayet”, which means “complaint” in Turkish and the “.com” extension.

It has been established by previous UDRP panels that the use of a trademark in its entirety with the addition of a generic term does not negate the confusing similarity with said trademark. Playboy Enterprises International Inc. v. Joao Melancia, WIPO Case No. D2006-1106; Six Continents Hotels, Inc. v. CredoNic.com / Domain Name for Sale, WIPO Case No. D2005-0755.

The Panel further finds that the addition of the “.com” extension is irrelevant when determining whether the disputed domain name is confusingly similar to the Complainant’s trademark, PRL USA Holdings, Inc. v. Spiral Matrix, WIPO Case No. D2006-0189.

The Panel recognizes the Complainant’s rights and concludes that the disputed domain name is confusingly similar with the Complainant’s FINANSBANK trademark.

The Panel finds that the requirements of paragraph 4(a)(i) of the Policy are fulfilled. Consequently, the Panel finds for the Complainant on the first element of the Policy.

B. Rights or Legitimate Interests

In accordance with paragraph 4(a)(ii) of the Policy, the Complainant must prove that the Respondent has no rights or legitimate interests in respect of the disputed domain name. It is established in numerous UDRP decisions that it is difficult for a complainant to prove a negative and for that reason the complainant is required to make out an initial prima facie case that the respondent lacks rights or legitimate interests in a domain name, Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110. Once the Complainant makes such a prima facie case, the burden of demonstrating rights or legitimate interests in the disputed domain name shifts to the Respondent. The Policy at paragraph 4(c) provides various ways in which the respondent may demonstrate rights or legitimate interests in a domain name. If the respondent fails to do so, the complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy.

The Complainant contends that he does not have any relations with the Respondent and that he did not grant the Respondent any rights to register or use the disputed domain name as the owner of the trademark FINANSBANK; there is no evidence to suggest that the Respondent is commonly known by the disputed domain name; the disputed domain name is used in connection with a website which is presented as if it is created by the Complainant. The Complainant alleges that the Respondent is gathering complaints in bad faith and because the complaints are not evaluated, the website is damaging the Complainant.

The Respondent claims that he is making a legitimate noncommercial or fair use of the disputed domain name and states that there is no content on the website claiming that the website is an official website of the Complainant and that the sole purpose of the website is to provide an online platform to the people who have complaints, problems or ideas about the Complainant.

The Panel finds that there is no evidence to suggest that the Respondent has any rights in any trademarks or service marks which are identical, similar or related to the disputed domain name. The Panel accepts that the Respondent is not commonly known by the disputed domain name, even if the Respondent has acquired no trademark or service mark rights.

With respect to making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue, the Panel acknowledges that there is a split amongst panels as to whether the use of a domain name containing a trademark for a website that is critical of the trademark or of its owner is legitimate under the Policy and some UDRP decisions in proceedings involving “criticism” websites hold that the respondent has a legitimate interest in using the trademark as part of the domain name of a criticism site if the use is fair and non-commercial. Akbank Türk A.Ş. v. Nurullah Akın, WIPO Case No. D2011-1411; Sermo, Inc. v. CatalystMD, LLC, WIPO Case No. D2008-0647. See also WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 2.4.

In the current proceeding, the disputed domain name incorporates a generic word, “sikayet” (standing for “complaint” in Turkish) which is not especially suggestive of affiliation with the Complainant as companies are unlikely to encourage consumers to associate “complaints” with their services. Newell Operating Company v. HostMonster.Com and Andrew Shalaby, WIPO Case No. D2008-1805. Further, the Panel visited the disputed domain name and observed that the website did not use the Complainant’s logo or hold itself out to be the Complainant’s official website. Therefore, the Panel rejects the Complainant’s allegations with respect to the disputed domain name being used in connection with a website which is presented as if it is created by the Complainant.

On the other hand, the website associated with the disputed domain name contains several areas for advertisements which suggests that the Respondent’s use of the disputed domain name is commercial. Furthermore, the Respondent has stated that he has registered similar domain names for other banks as well for the same purposes. The Respondent has elected to use the Complainant’s trademark as well as other banks’ trademarks in creating several criticism websites, rather than creating one single website. The Panel is in the opinion that such use by the Respondent is an indication that the Respondent is primarily engaged in using the Complainant’s trademark as well as third party trademarks for commercial gain.

Paragraph 4(a)(ii) requires the Complainant to prove that the Respondent has no rights or legitimate interests in the disputed domain name. The Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. The Respondent failed to demonstrate to the satisfaction of the Panel rights or legitimate interests in the disputed domain name. In light of the above, the Panel concludes that the Respondent has no rights or legitimate interests in the disputed domain name.

The requirements of paragraph 4(a)(ii) of the Policy are fulfilled and, consequently, the Panel finds in favor of the Complainant on the second element of the Policy.

C. Registered and Used in Bad Faith

Finally, the Complainant must show that the disputed domain name has been registered and is being used in bad faith under paragraph 4(a)(iii) of the Policy.

Paragraph 4(b) of the Policy provides a non-exhaustive list of circumstances that, if found by a panel to be present, shall be evidence of the registration and use of a domain name in bad faith:

(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or

(ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or

(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent's website or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of the respondent's website or location or of a product or service on the respondent’s website or location.

The Complainant’s trademark FINANSBANK was registered and used before the Respondent’s registration of the disputed domain name. Further, the Respondent’s website associated with the disputed domain name contains complaints with respect to the Complainant’s services. Therefore, the Panel finds the Respondent was aware of the Complainant’s trademark FINANSBANK at the time the disputed domain name was registered. The Panel, in accordance with previous decisions issued under the Policy, is of the opinion that actual knowledge of the Complainant’s trademark at the time of registration of the disputed domain name is to be considered as an inference of bad faith, Parfums Christian Dior v. Javier Garcia Quintas and Christiandior.net, WIPO Case No. D2000-0226.

Further, as discussed above in section 6.2.B, the Panel is in the opinion that the Respondent is using the Complainant’s trademark FINANSBANK for commercial gain, which is a further inference of bad faith as established by previous UDRP decisions. “The record further reflects the Respondent’s use of the disputed Domain Names to attract Internet users to the Respondent’s website in order to generate pay-per-click advertising revenues. The Panel concludes for the foregoing reasons that the Respondent registered and is using the disputed Domain Names in bad faith.” The Jennifer Lopez Foundation v. Jeremiah Tieman, Jennifer Lopez Net, Jennifer Lopez, Vaca Systems LLC, WIPO Case No. D2009-0057

After examining all circumstances surrounding the registration and use of the disputed domain name, the Panel finds that the Respondent registered and is using the disputed domain name in bad faith. Accordingly, the Panel finds in favor of the Complainant on the third element of the Policy.

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 disputed domain name <finansbanksikayet.com> be transferred to the Complainant.

Gökhan Gökçe
Sole Panelist
Date: January 28, 2014