WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Ms. Özlem Denizmen v. Saban Kilinc
Case No. D2013-2041
1. The Parties
The Complainant is Ms. Özlem Denizmen of Istanbul, Turkey, represented by Deriş Patents and Trademark Agency A.Ş., Turkey.
The Respondent is Saban Kilinc of Ankara, Turkey.
2. The Domain Name and Registrar
The disputed domain name <paradurumu.com> is registered with NameSilo, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 27, 2013. On November 27, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 27, 2013, the Registrar 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 December 12, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response January 1, 2014. The Response was filed with the Center December 23, 2013. The Center received an unsolicited supplemental submission from the Complainant on January 16, 2014. The Center acknowledged receipt of the same on January 17, 2014.
The Center appointed Kaya Köklü, Matthew S. Harris and Ugur G. Yalçiner as panelists in this matter on January 21, 2014. The Panel finds that it was properly constituted. Each member of 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.
In accordance with the Rules, paragraph 11(a), and since the parties have not agreed otherwise, the Panel finds that the language of the administrative proceedings is the language of the Registration Agreement, i.e. English.
The Center received a further email communication, with attached documents in English, from the Complainant on February 5, 2014. The Center acknowledged receipt of the email communication the same day.
The Panel has decided to accept the Complainant’s two supplemental submissions and allow them as part of the case file.
4. Factual Background
The Complainant is an individual from Turkey.
It is the owner of the Turkish trademark PARA DURUMU. The trademark application dates back to March 3, 2010. It was registered at the Turkish Patent Institute (the competent authority for trademark registrations in Turkey) on April 28, 2011 (Turkish Registration No. 2010 16535). The trademark covers protection for various products and services in classes 09, 16, 35, 38 and 41.
Under this trademark, the Complainant operates a popular Turkish multi-media platform on financial literacy since 2010. It also produces TV shows in Turkey, mainly providing guidance for financial concerns of its followers.
For this purpose, the Complainant owns and operates a website at “www.paradurumu.tv”which is in use since March 2010.
The Respondent is an individual from Turkey as well.
The Respondent is the registrant of the disputed domain name <paradurumu.com. The disputed domain name was created on June 12, 2005.
At least since 2009, the Respondent offers the disputed domain name for sale. As of the year 2011, the Respondent started to provide information on currency exchange rates and share prices of the Turkish stock exchange on the website linked to the disputed domain name.
The Panel acknowledges that the trademark PARA DURUMU consists of two generic Turkish terms. In the English language, the term “para” means “money” and the term “durum(u)” can be translated as “status” or “condition”.
5. Parties’ Contentions
The Complainant requests the transfer of the disputed domain name.
The Complainant is of the opinion that the disputed domain name is identical to the Complainant’s popular PARA DURUMU trademark.
The Complainant acknowledges that the Respondent created the disputed domain name prior to the trademark registration of the Complainant. However, it argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name. In particular, it is argued that the Respondent “is not making a legitimate non-commercial or fair use of the disputed domain name”.
Additionally, it is argued that the Respondent has registered and is using the disputed domain name in bad faith. It is asserted that the Respondent is “trying to capitalize on the […] confusion of users trying to reach the Complainant’s website”. The Complainant alleges that “the Respondent is aware of the fame of the Complainant’s trademark PARA DURUMU and has created […] a kind of mock site with the intention to generate Internet traffic in an attempt to attract more visitors and by exploiting the goodwill of the mark”.
The Respondent requests the denial of the Complaint.
The Respondent argues that the disputed domain name is of generic nature, consisting of two generic terms in the Turkish language, which shall not be monopolized by the Complainant. The Respondent refuses any trademark infringement and refers to the “first come, first served” principle. In this regard, the Respondent points out that the disputed domain name was registered 6 years prior to the Complainant’s trademark registration.
6. Discussion and Findings
According to paragraph 14(a) and 15(a) of the Rules, the Panel shall decide the Complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable and on the basis of the Complaint where no Response has been submitted.
In accordance with paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements is satisfied:
(i) the disputed domain name is identical or confusingly similar to the trademark 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.
Paragraph 4(a) of the Policy states that the Complainant bears the burden of proving that all these requirements are fulfilled. Stanworth Development Limited v. E Net Marketing Ltd., WIPO Case No. D2007-1228.
However, concerning the uncontested information provided by the Complainant, the Panel may, where relevant, accept the provided reasonable factual allegations in the Complaint as true. Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110.
It is further noted that the Panel has taken note of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”) and, where appropriate, will decide consistent with the WIPO Overview 2.0.
A. Identical or Confusingly Similar
The Panel finds that the disputed domain name is identical to the PARA DURUMU trademark of the Complainant.
The Panel notes that the mere addition of the generic Top-Level Domain (“gTLD”) “.com” has no distinguishing effect and may as a general principle not be considered when assessing identity or confusing similarity between a domain name and a trademark (in line with prior UDRP panels concerning the gTLD in disputed domain names, cf. V&S Vin & Sprit AB v. Ooar Supplies, WIPO Case No. D2004-0962; Google Inc. v. Nijat Hassanov, WIPO Case No. D2011-1054).
B. Rights or Legitimate Interests
As the Panel finds that the Complainant has failed to meet the requirements under paragraph 4(a)(iii) of the Policy for the reasons provided below, there is no need to make a finding on the question whether the Respondent has 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 Complainant must demonstrate the conjunctive requirement that the Respondent registered and used the disputed domain name in bad faith.
The Panel’s view is that the Complainant has not sufficiently proved bad faith registration by the Respondent.
The disputed domain name was registered by the Respondent in June 2005, almost 5 years prior to the Complainant’s trademark application and nearly 6 years prior to the trademark’s first use by the Complainant. Hence, at the time of the registration of the disputed domain name, the Respondent could not have contemplated the Complainant’s non-existing rights. The Panel adheres to the consensus view of panelists in WIPO Overview 2.0, paragraph 3.1.
There are situations, which may justify a different assessment, in particular “when the Respondent is clearly aware of the Complainant, and it is clear that the aim of the registration was to take advantage of the confusion between the domain name and any potential complainant rights”. WIPO Overview 2.0, paragraph 3.1. In the present case, however, the Complainant neither had a trademark nor had started any activity to use the mark PARA DURUMU at the time of the disputed domain name registration. There is no indication in the case file that the Complainant had at that time even conceived of the idea to use the mark PARA DURUMU.
Finally, the Complainant also failed to put in evidence of any subsequent change of ownership in the disputed domain name registration that might be assessed as a fresh registration for the purpose of the Policy. ehotel AG v. Network Technologies Polska Jasinski Lutoborski Sp.J, WIPO Case D2009-0785; WIPO Overview 2.0, paragraph 3.1.
Overall, the Panel finds that it has not been proven that the disputed domain name was registered in bad faith and that the prerequisite of bad faith in paragraph 4(a)(iii) of the Policy is not fulfilled.
For the foregoing reasons, the Complaint is denied.
Matthew S. Harris
Ugur G. Yalçiner
Date: February 6, 2014