WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Kıvanç Tatlıtuğ v. Turk Ibne / Domain Admin, Whois protection
Case No. D2017-0333
1. The Parties
The Complainant is Kıvanç Tatlıtuğ of Istanbul, Turkey, represented by Yalçın Kavak, Turkey.
The Respondent is Turk Ibne of Istanbul, Turkey / Domain Admin, Whois protection of Prague, Czechia.
2. The Domain Name and Registrar
The disputed domain name <kivanctatlitug.com> is registered with Hebei Guoji Maoyi (Shanghai) LTD aka HEBEI INTERNATIONAL TRADING (SHANGHAI) CO., LTD dba HebeiDomains.com (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 20, 2017. On February 20, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 23, 2017, 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. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amended Complaint on March 3, 2017.
The Center verified that the Complaint together with the amended 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on March 6, 2017. In accordance with the Rules, paragraph 5, the due date for Response was March 26, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 27, 2017.
The Center appointed Gökhan Gökçe as the sole panelist in this matter on April 3, 2017. 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, Kıvanç Tatlıtuğ, is a famous actor and model. He was elected as Best Model of World in 2002. He has appeared in several famous movies and TV Series. The Complainant is widely featured in celebrity publications, movie reviews, and entertainment publications and television shows, and he was also UNICEF’s goodwill ambassador. He attended many international film festivals and he has won certain awards.
The Complainant is the owner of four registered trademarks for KIVANÇ TATLITUĞ which was first registered on October 3, 2013 with the Turkish Patent Institute. It was also registered as a well-known trademark in Turkey.
The Respondent registered the disputed domain name on March 15, 2006.
The Panel visited the disputed domain name on April 12, 2017, and observed that the disputed domain contains certain content titled “Related Links”. The website at the disputed domain name showed the following contents: “Beyonce Phone, a game online game, games a go go, best forex software, a pontoon boat.”
5. Parties’ Contentions
In accordance with 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.
(i) Identical or Confusingly Similar
The Complainant asserts that the disputed domain name comprises the term “kivanctatlitug” which is identical to the distinctive element of its registered trademark KIVANÇ TATLITUĞ.
(ii) Rights or Legitimate Interests
The Complainant submits that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant has never granted the Respondent a license or permission to use the mark KIVANÇ TATLITUĞ, the Respondent has no association with the Complainant and the Respondent has never been commonly known by the disputed domain name.
The Complainant asserts that the Respondent has no rights or legitimate interests in the disputed domain name.
(iii) Registration and Use in Bad Faith
The Complainant indicates that the disputed domain name has been registered in bad faith. The Complainant contends that KIVANÇ TATLITUĞ is a well-known actor and model in Turkey and other countries. He is also goodwill ambassador of the United Nations International Children’s Emergency Fund (UNICEF).
The Complainant contends that the Respondent registered and is using the disputed domain name <kivanctatlitug.com> in bad faith in violation of the Policy, paragraph 4(a)(iii).
The Respondent did not reply to the Complainant’s contentions.
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 a 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, even if the Respondent has not replied to the Complaint. 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 Complainant Kıvanç Tatlıtuğ, a well-known actor, asserts trademarks in his name. Therefore, the disputed domain name is clearly identical (or confusingly similar) to the Complainant’s name, Kıvanç Tatlıtuğ, so the only issue to decide under this limb of the requirements of paragraph 4(a) of the Policy is whether the Complainant has rights in a trademark or service mark to which the disputed domain name is similar. Paragraph 4(a) of the Policy does not require the Complainant to demonstrate rights in a registered mark; it can be enough to demonstrate the existence of unregistered rights or sufficient rights to ground an action for passing off (Julia Fiona Roberts v. Russell Boyd, WIPO Case No. D2000-0210 and Jeannete Winterson v. Mark Hogarth, WIPO Case No. D2000-0235).
The allegations by the Complainant are essentially that Kıvanç Tatlıtuğ as a celebrity has fame and association of his name with his persona. The Panel finds it obvious that the Complainant is a celebrity in the sense described by the Complainant and that the name Kıvanç Tatlıtuğ has, in the mind of the public, a secondary association with the Complainant’s persona and his professional career as actor and model. In view of this and in view of the need to ensure consistency with earlier UDRP precedents relating to trademark rights in celebrities’ names, this Panel is satisfied that in fact the Complainant shall, for the purposes of this case, be considered to have trademark right. In addition to such unregistered rights the Panel notes that the Complainant has provided trademark certificates to proof his registered trademark rights in KIVANÇ TATLITUĞ.
The disputed domain names at issue incorporate Complainant’s name with the addition of “.com”. In conformity with well-established practice in this respect, the Panel finds that the addition of the suffix “.com” does not change the likelihood of confusion with Complainant’s name.
In view of the above, the Panel is satisfied that the Complainant has met the requirements under paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Panel considers that the name, Kıvanç Tatlıtuğ, is an unusual name and not one that anyone would select at random. The Respondent’s name bears no relation to the disputed domain name and there is nothing about the Respondent’s use of the disputed domain name, which indicates any connection to the name, Kıvanç Tatlıtuğ.
The Complainant asserts that it has given the Respondent no permission to use his trademark for this or any other purpose. Since there is no evidence in the record that the Respondent is using the disputed domain name for any permitted purpose, nor that the Respondent is making any preparations to do so, the Panel finds that neither Policy, paragraph 4(c)(i) nor Policy, paragraph 4(c)(iii) is applicable. In view of the foregoing, the Panel discerns from the record no effective rebuttal to the Complainant’s prima facie case.
If the Respondent had a justifiable reason for acquiring the disputed domain name, he/she could have provided it to the Panel, but elected not to respond to the Complaint. As the Respondent, has declined to file a Response, the Panel looks to the record for evidence to rebut the Complainant’s allegations. In doing so, the Panel compares any evidence, or lack thereof, in relation to paragraph 4(c) of the Policy, which prescribes three avenues by which the Respondent might establish his/her rights or legitimate interests in the disputed domain name.
It is clear from the submissions and evidence provided to this Administrative Panel that (a) the disputed domain name is not used for an offering of any goods or services; (b) the Respondent is not known by the disputed domain name; (c) there is no legitimate noncommercial or fair use of the disputed domain name; and (d) there are no other basis upon which the Respondent can assert rights or legitimate interests.
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
The Respondent made the first registration of the disputed domain name in 2006. The Complainant alleges that the Complainant was well-known as of 2002 both in Turkey and the countries outside of Turkey as he is Best Model of the World, a famous actor and UNICEF’s goodwill ambassador. Based on those circumstances the Panel is satisfied that Respondent registered the disputed domain name in full knowledge about the Complainant’s fame. Therefore, the Panel concludes that the registration of the disputed domain name was made in bad faith in the sense of the Policy. Additionally, as indicated above, there is nothing before the Panel to suggest that the Respondent has any connection with the name beyond the fact that he/she acquired the disputed domain name. The Panel considers that the Respondent was aware of the Complainant when the Respondent registered the disputed domain name. The circumstances leave no room for doubt. Stoneygate 48 Limited and Wayne Mark Rooney v. Huw Marshall, WIPO Case No. D2006-0916.
The Respondent appears to have used the disputed domain name to connect to “Related links” of which proof was submitted in Annex 5a of the Complaint. The Panel finds that on the preponderance of the evidence, the Respondent acquired the disputed domain name for that purpose, namely to attract visitors to his/her site on the back of the fame of the Complainant’s trademark for commercial gain.
In light of the fact that the word “Kıvanç Tatlıtuğ” does not have a meaning in itself, and as such is not one traders would legitimately choose unless seeking to create an impression of an association with the Complainant, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name but has rather registered the disputed domain name in bad faith. Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003.
All in all, the Panel cannot conceive of any good faith use of the disputed domain name which is not related to the trademark owned by the Complainant. Accordingly, the Panel finds in favor of the Complainant on the third element of the Policy.
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 <kivanctatlitug.com> be transferred to the Complainant.
Date: April 14, 2017