WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Idris Yamantürk v. Marka Deger Koruma
Case No. D2021-0200
1. The Parties
The Complainant is Idris Yamantürk, Turkey, represented internally.
The Respondent is Marka Deger Koruma, United States of America.
2. The Domain Name and Registrar
The disputed domain name <idrisyamanturk.com> is registered with NameCheap, Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 22, 2021. On January 25, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 25, 2021, 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 January 26, 2021, 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 amended Complaint on January 30, 2021.
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 February 2, 2021. In accordance with the Rules, paragraph 5, the due date for Response was February 22, 2021. The Response was filed with the Center on February 19, 2021.
The Center appointed Kaya Köklü as the sole panelist in this matter on March 4, 2021. 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.
The Panel issued a Procedural Order No. 1 on March 18, 2021 by which the Complainant was requested to ascertain its legal status. The Complainant was also requested to file appropriate evidence in support of alleged unregistered trademark rights in a personal name.
On March 26, 2021, the Complainant’s representative transmitted a response confirming that the Complainant passed away on February 12, 2021. However, it was declared that his heirs Mr. M. Yamantürk and Mr. T. Yamantürk have taken over the case and wish to continue the administrative proceeding against the Respondent. Additionally, further documents were provided in order to demonstrate unregistered trademark rights in the personal name of the initial Complainant.
The Respondent replied in Turkish language to the additional submissions by the Complainant on April 1, 2021.
4. Factual Background
The Complainant was a famous businessman in Turkey, who passed away on February 12, 2021, only around three weeks after the Complaint was filed.
The Complainant was the founder and honorary president of a large group of Turkish companies mainly active in the fields of construction, engineering, energy, and tourism. The Complainant founded his first company in 1958. In the meantime, his group of companies employs more than 5,000 people alone in Turkey.
Furthermore, the Complainant was among the founders of the Istanbul Technical University Foundation, the Turkish Construction Industry Employers Union, the Ankara Chamber of Commerce, and many other relevant organizations.
The Complainant also gains high popularity in Turkey because of his efforts in supporting education and research. He is the founder of a foundation, which grants scholarships for students (Annex 2 to the Complaint) and is also the name-giver of various primary and secondary schools, university institutions and other facilities for pupils, students and teachers. Among others, there is also a conference center at the prestigious Istanbul Technical University, which was donated by the Complainant and named after him (Annex 3 to the Complaint).
On March 26, 2021, the heirs of the Complainant, Mr. M. Yamantürk and Mr. T. Yamantürk declared to take over the case and continue the administrative proceeding against the Respondent.
The disputed domain name was registered on January 7, 2020.
The Respondent appears to be an individual or company from Turkey. Its true identity remains unknown as its name in the WhoIs records for the disputed domain name appears to be incomplete and was also not revealed in its communications to the Center on January 26, 2021 and February 19, 2021.
As can be seen in the case and undisputed by the Respondent, the Respondent tried to approach the Complainant and its family members by way of various email communications in order to offer the disputed domain name for sale to a price of USD 10,000 (Annex 3 to the Complainant’s Response to the Procedural Order No. 1). In his email of January 22, 2021, the Respondent indicated that he has also registered the personal names of other famous Turkish people as domain names and that the Complainant should be aware of inappropriate content published at the disputed domain name (Annex 3 to the Complainant’s Response to the Procedural Order No. 1).
The disputed domain name is linked to a website of a domain name broker offering domain names for sale.
5. Parties’ Contentions
The Complainant requests the transfer of the disputed domain name.
The Complainant is of the opinion that the personal name IDRIS YAMANTÜRK is protected as an unregistered trademark and that the disputed domain name is identical to this trademark.
Furthermore, the Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
Finally, it is argued that the Respondent has registered and is using the disputed domain name in bad faith. The Complainant particularly argues that the Respondent was well aware of the Complainant’s personal name and unregistered trademark, when registering the disputed domain name and offering it for sale to the Complainant.
The Respondent, who did not disclose his true identity in this administrative proceeding, requests the Complaint to be denied.
The Respondent argues that he tried to contact the Complainant various times in order to find an amicable solution, but did not receive a response.
As to the merits of the case, the Respondent states in his email correspondence of January 26, 2021 that he “never used a bad language” and that he is confident that “if the counterparty comes up with a buy offer” they will find a “middle ground”. Alternatively, the Respondent asserts to use the website as a fan page.
In its formal Response of February 19, 2021, the Respondent further argued in Turkish language that the disputed domain name was yet never in use, the Respondent never used the disputed domain name in bad faith and there might be more people in the world having the same name as the Complainant.
In its Response to the Procedural Order No. 1 of April 1, 2021, the Respondent mainly repeats in Turkish language its previous statements and additionally underlines that he suffers financial problems, particularly as the disputed domain name has been locked in the meantime and consequently cannot be sold to other interested persons.
6. Discussion and Findings
6.1. Status of Complainants
Pursuant to WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 4.11, the consolidation of multiple complainants against one or more respondents is subject to the discretion of the appointed panel.
In the present case, the initial Complainant passed away only about three weeks after filing of the Complaint. In their Response to the Procedural Order No. 1, the legitimate heirs of the initial Complainant have explicitly confirmed that they wish to continue with this administrative proceeding against the Respondent.
In view of the Panel, it would not be appropriate, particularly for reasons of procedural efficiency, to terminate the current administrative proceeding for formal reasons and to ask the legitimate heirs of the initial Complainant to initiate a new administrative proceeding with a practically identical complaint against the same Respondent.
Hence, the Panel accepts the heirs of the initial Complainant as the new Complainants in this administrative proceeding. For the ease of reference, they will be jointly referred to in the following as “the Complainant”, whenever appropriate.
6.2. Substantive Issues
According to paragraph 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.
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 Complainant’s contentions. 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. See section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).
It is further noted that the Panel has taken note of the WIPO Overview 3.0 and, where appropriate, will decide consistent with the consensus views captured therein.
A. Identical or Confusingly Similar
To begin with, the Panel is convinced that the Complainant has satisfied the threshold requirement of having relevant trademark rights in IDRIS YAMANTÜRK.
In light of 1.3 and 1.5 of the WIPO Overview 3.0, the Panel accepts that the Complainant acquired widespread goodwill and reputation in IDRIS YAMANTÜRK as an unregistered trademark, through long and wide use in connection with intense commercial and social services and activities in Turkey. The Panel particularly notes that IDRIS YAMANTÜRK has been used in Turkey not only as a personal name, but also as the name-giver for foundations, schools, conference centers and many other (not only non-profit) services and activities in Turkey. In view of the Panel, this is sufficient to accept unregistered trademark rights in IDRIS YAMANTÜRK.
The fact that the initial Complainant passed away only about three weeks after filing of the Complaint does in view of the Panel not lead to the dissolution of the acquired unregistered trademark rights. It is a generally accepted principle in modern law systems that post mortem personality rights as well as acquired trademark rights may still be exercised and enforced by the legitimate heirs of the initial right holder.
Applying this principle of law, the Panel notes that the heirs of the initial Complainant, who explicitly confirmed their willingness to continue with the present administrative proceeding, are entitled to rely on the unregistered trademark rights in IDRIS YAMANTÜRK. Consequently, the Panel accepts that the Complainant is entitled to rely its Complaint on the basis of unregistered trademark rights acquired through intense and prominent use in Turkey by the initial Complainant.
Overcoming this threshold requirement, the Panel further notes that the disputed domain name is identical to the Complainant’s IDRIS YAMANTÜRK unregistered trademark as it incorporates IDRIS YAMANTÜRK in its entirety without any additions or amendments.
The Panel accepts in line with previous UDRP decisions that the general Top-Level Domain (“gTLD”) “.com” may, as a general principle, be disregarded when assessing identity or confusing similarity between a domain name and a trademark (V&S Vin & Sprit AB v. Ooar Supplies, WIPO Case No. D2004-0962; Google Inc. v. Nijat Hassanov, WIPO Case No. D2011-1054).
In view of the findings 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
While the burden of proof on this element remains with the complainant, previous UDRP panels have recognized that this would result in the often impossible task of proving a negative, in particular as the evidence in this regard is often primarily within the knowledge of the respondent. Therefore, the Panel agrees with prior UDRP panels that the Complainant is required to make out a prima facie case before the burden of production shifts to the Respondent to show that it has rights or legitimate interests in the disputed domain name in order to meet the requirements of paragraph 4(a)(ii) of the Policy. See, Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455.
The Panel finds that the Complainant has satisfied this requirement, while the Respondent has failed to file any evidence or make any convincing argument to demonstrate rights or legitimate interests in the disputed domain names according to the Policy, paragraphs 4(a)(ii) and 4(c).
In its Complaint, the Complainant has provided uncontested prima facie evidence that the Respondent has no rights or legitimate interests to use the Complainant’s unregistered trademark IDRIS YAMANTÜRK.
The Respondent, in return, failed to demonstrate any of the non-exclusive circumstances evidencing rights or legitimate interests under the Policy, paragraph 4(c) or any other evidence of rights or legitimate interests in the disputed domain name. In fact, the Panel cannot conceive of any right and legitimate interest to use the disputed domain name, except with an authorization of the Complainant.
Moreover, the Panel points out that due to the identity to the Complainant’s personal name and unregistered trademark, the disputed domain name carries a high risk of implied affiliation (see section 2.5.1 of the WIPO Overview 3.0).
As a conclusion, the Panel finds that the Complainant has also satisfied the requirements of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
In the Panel’s view, the Respondent has registered and is using the disputed domain name in bad faith.
The Panel is convinced that the Respondent must have had the Complainant’s unregistered trademark in mind when registering the disputed domain name. This is particularly likely as the disputed domain name is identical to the initial Complainant’s personal name and unregistered trademark. In view of the Panel, it even appears that the Respondent has registered the disputed domain name for the sole purpose of selling it back to the Complainant.
This assessment made by the Panel is particularly supported by the Respondent’s numerous attempts to contact and sell the disputed domain name directly to the Complainant to a price, which clearly exceeds the Respondent’s out-of-pocket costs directly related to the disputed domain name (Annex 3 to the Complainant’s Response to the Procedural Order No. 1). In view of the Panel, also the Respondent’s own comments and statements on the Complaint and on the Procedural Order No. 1 support the impression that his sole concern was and is to sell the disputed domain to the Complainant.
The Panel accepts this behavior of the Respondent, who in view of the Panel has obviously no rights or legitimate interests in the disputed domain name, as compelling evidence of his ill andbad faith intentions.
The Panel therefore concludes that the disputed domain name was registered and is being used in bad faith and that the Complainant has also satisfied the third element of the Policy, namely, paragraph 4(a)(iii) 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, <idrisyamanturk.com> be transferred to the Complainant.
Date: April 8, 2021