WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Akbank Turk A.S. v. Mehmet Guven
Case No. D2018-1531
1. The Parties
The Complainant is Akbank Turk A.S. of Istanbul, Turkey, represented by Istanbul Patent A.S., Turkey.
The Respondent is Mehmet Guven of Ankara, Turkey, self-represented.
2. The Domain Name and Registrar
The disputed domain name <akbnk.com> is registered with GoDaddy.com, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 9, 2018. On July 9, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 10, 2018, 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on July 11, 2018. In accordance with the Rules, paragraph 5, the due date for Response was July 31, 2018. The Response in Turkish was filed with the Center on July 31, 2018.
The Center appointed Emre Kerim Yardimci as the sole panelist in this matter on August 9, 2018. 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 leading Turkish bank offering a wide range of banking products to individuals and businesses.
The Complainant has been using the trademark AKBANK continuously since 1947 and holds a considerable number of trade and service marks registrations in Turkey and in other jurisdictions in addition to International registrations under the Madrid Protocol (see International Registration No. 750014, registered on October 19, 2000). The oldest of the Turkish registrations dates back to an application date of 1996.
The Complainant has been operating online banking services with AKBANK trademark under the domain name <akbank.com> and has been the owner of the domain name <akbank.com.tr> since December 9, 1996, which resolves to the main website of the Complainant at “www.akbank.com”.
The disputed domain name was created on July 2, 2016. According to the current record, the Respondent is a physical person of Turkish origin domiciled in Ankara. The Complainant submitted evidence that the disputed domain name <akbnk.com> previously resolved to a Registrar parking page. Currently it resolves to a website with pay-per-click (“PPC”) links.
5. Parties’ Contentions
The Complainant requests the transfer of the disputed domain name.
The Complainant asserts that the disputed domain name is identical or at least confusingly similar to the Complainant’s trademark AKBANK and the disputed domain name consists of obvious typosquatting and the part “bnk” is a clear abbreviation for the term “bank”.
The Complainant considers that the Respondent has no rights or legitimate interests in respect of the disputed domain name, mainly because the Complainant has neither licensed nor otherwise authorized the Respondent to use its marks or to apply for or use any domain name incorporating the trademark AKBANK.
Finally, in addressing the question of registration and use of the disputed domain name in bad faith, the Complainant observes that the Respondent, domiciled in Turkey, could not ignore the Complainant’s well-known AKBANK trademark when registering the disputed domain name. The Complainant argues that it is impossible to imagine any future active use of the disputed domain name that would not cause interference with the Complainant’s trademarks.
The Respondent has submitted in his reply that he has registered the disputed domain name 750 days prior to the submission of the Complaint. According to the Respondent, it is the Complainant who acted in bad faith by filing Turkish trademark applications for AKBNK indication 90 days prior to the submission on the Complaint. The Respondent contends that “akbank” and “akbnk” are not confusingly similar.
Moreover, the Respondent contends that he has not used the disputed domain name and has never required from the Complainant for the authorization to use its marks and that there is no evidence showing that the Respondent registered the disputed domain name for the sole purpose of selling it to the Complainant.
The Respondent contends that the disputed domain name is known from everybody and put forward that the term “Akbnk” is only known from the public in a specific sector.
Lastly, the Respondent states that he has not acquired the disputed domain name for the purpose of selling it to the Complainant but he was developing a project for a third party, namely “Artificial Kidney Bank” and he was aiming to use AKBNK simply as an abbreviation of “Artificial Kidney Bank”.
The Respondent thereby requests for the rejection of the Complaint.
6. Discussion and Findings
6.1. Language of the Proceeding
Paragraph 11(a) of the Rules provides that:
“Unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.”
It is established that the language of the Registration Agreement for the disputed domain name is English.
The Center has throughout the proceedings issued its case-related communications, including the Center’s Complaint notification documents, in English only. The Respondent has chosen to participate in the proceeding in by submitting its Response in the Turkish language.
The Panel notes the following passage from the Groupe Auchan v. xmxzl, WIPO Case No. DCC2006-0004 “The Panel’s discretion must be exercised judicially in the spirit of fairness and justice to both parties taking into consideration matters such as command of the language, time and costs. It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her abilities to articulate the arguments for the case.”
Upon considering the above and the fact that both Parties are Turkish, the Panel concludes, pursuant to the Rules, paragraph 11(a), that there is no prejudice or unfairness to the Complainant for the Response to be submitted in Turkish only. Accordingly, the Panel has accepted the Response as submitted in Turkish.
6.2. Substantive Issues
A. Identical or Confusingly Similar
Pursuant to paragraph 4(a)(i) of the Policy, a complainant must prove that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights.
The Panel finds that the Complainant satisfies this element by virtue of their registrations in Turkey and in several other countries for the trademark AKBANK, coupled with the fact that the disputed domain name is almost identical to AKBANK trademark insofar as only the letter “a” is missing in the disputed domain name which is a clear case of typosquatting. See section 1.9 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).
The Panel therefore finds that the Complainant has satisfied paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The onus is on the Complainant to make out at least a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name and it is then for the Respondent to rebut this case.
The Panel accepts the Complainant’s submissions that the Respondent does not appear to be known by the disputed domain name, has not used or made demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or services, is not making a legitimate noncommercial or fair use of the disputed domain name, and has no consent from the Complainant to use its trademark.
The Respondent contends that the disputed domain name <akbnk.com> was available several times and that Complainant was not interested in this domain name. The Respondent further contends that he was interested in the disputed domain name for a particular project of “Artificial Kidney Bank”, for which “Akbnk” was designed as abbreviation. The Respondent submits that after six months of work, this project is suspended for an undetermined period due to the fact that the investor has given up this project.
According to the Panel, the Respondent’s claim on using the disputed domain name <akbnk.com> for a particular “Artificial Kidney Bank” project is not plausible due to lack of any evidence submitted in this sense. As a matter of fact, the Respondent claims without supporting evidence that it has worked six months on the project. Consequently, the Panel is of the opinion that the Respondent has not been able to demonstrate a use or preparation to use the disputed domain name in connection with a bona fide offering of goods or services, nor that Respondent been commonly known by the disputed domain name, nor that the Respondent’s use of the disputed domain name can be considered as a legitimate noncommercial use.
In the Panel’s view, the Complainant has made out its prima facie case under this element of the Policy and the Respondent has failed to rebut it. Accordingly, the Complaint succeeds in relation to the second element of the Policy.
C. Registered and Used in Bad Faith
At the time of registration of the disputed domain name, the Complainant’s trademark AKBANK was a well‑known trademark for a very long time at least in Turkey where both Parties are based. As the Complainant submits, it is inconceivable that the Respondent would not have known of the Complainant’s mark.
Additionally, the Complainant is using “Akbnk” as an abbreviation of its company as a stock symbol at Istanbul Stock Exchange and more importantly, the Respondent is very aware of the fact that the term “Akbnk” is used as the abbreviation of the Complainant’s company stocks. Moreover, in its Response, the Respondent is admitting that the Complainant is a very big firm in Turkey. For this reason although, the disputed domain name is not active, considering the degree of reputation of the Complainant marks which is also acknowledged by the Respondent, the passive holding would not prevent from finding of a bad faith use (see WIPO Overview 3.0, section 3.3 and the cases cited therein.)
Based on the evidence submitted with the Complaint, the extensive use as well as the well-known character of the trademark AKBANK, and based on the fact that the Respondent lives in Turkey, it is unconceivable to this Panel that the Respondent was not aware of the Complainant’s trademark and its activity. Considering the distinctiveness and originality of the trademark AKBANK, the Panel is convinced that the Respondent had the Complainant’s trademark in mind when registering the disputed domain name.
Therefore, in the view of cumulative circumstances, the Panel finds that the requirement of registration and use in bad faith is satisfied, according to the Policy, paragraph 4(a)(iii).
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 <akbnk.com> be transferred to the Complainant.
Emre Kerim Yardimci
Date: August 27, 2018