WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Türkiye Radyo Televizyon Kurumu (Turkish Radio Television Corporation) v. Kerim Sargin
Case No. DTV2013-0005
1. The Parties
The Complainant is Türkiye Radyo Televizyon Kurumu (Turkish Radio Television Corporation) of Ankara, Turkey, represented by Basak Tosun, Turkey.
The Respondent is Kerim Sargin of Ankara, Turkey.
2. The Domain Name and Registrar
The disputed domain name <trthaber.tv> is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 29, 2013. On August 29, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 31, 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 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 September 4, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was September 24, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 25, 2013.
On September 27, 2013, the Respondent sent an email communication to the Center, indicating its willingness to transfer the disputed domain name to the Complainant. On the same date, the Center invited the Complainant to submit a request for suspension of the proceeding to explore a possible settlement between the parties. On October 5, 2013, the Complainant indicated that it did not wish to suspend the proceeding, and that the proceeding should continue.
The Center appointed Dilek Ustun Ekdial as the sole panelist in this matter on October 11, 2013. 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 Turkiye Radyo Televizyon Kurumu (Turkish Radio Television Corporation) is a Turkish public corporation based in Ankara, Turkey. The Complainant is the national public broadcaster of Turkey and was founded in 1964 and until the 1990’s TRT has remained as the only radio and television provider of Turkey.
The TRT HABER trademark was registered in Turkey by the Turkish Patent Institute on February 16, 2012 in classes 38 and 41 with registration number 2012-15045.
The Complainant is also owner of the 260 domain names containing the term “trthaber” including: <trthaber.com>, <trthaber.net>, <trthaber.mobi>, <trthaber.info> and <trthaber.me>.
According to the Registrar, the disputed domain name was registered by the Respondent on January 28, 2010.
5. Parties’ Contentions
In relation to paragraph 4(a)(i) of the Policy, the Complainant contends that the disputed domain name is identical to the trademark TRT HABER.
The Complainant contends that it has not licensed or otherwise permitted the Respondent to use its trademarks, nor has it licensed or otherwise permitted the Respondent to apply for or use any domain name incorporating this trademark. In addition, the Complainant contends that the Respondent has not traded under the name “TRT Haber”.
The Complainant also contends that its trademark is the most well-known trademark in Turkey and has substantial and increasing prominence internationally. It is inconceivable that the person or persons behind the Respondent, which is located in Turkey, would not be aware of this.
The Complainant contends that the Respondent has registered and used the disputed domain name in bad faith on various grounds: the disputed domain name was registered and has been used in order to unfairly take advantage of the undisputed fame of the service mark TRT HABER associated directly with the Complainant, to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name and to attract, for commercial gain, Internet users to the Respondent’s website.
The Complainant adds that the Respondent has offered the disputed domain name for sale.
The Respondent did not reply to the Complainant’s contentions. However, the Respondent has sent an email regarding the disputed domain name in which it stated that it is willing to transfer the disputed domain name to the Complainant.
6. Discussion and Findings
Paragraph 4(a) of the Policy requires that a complainant prove each of the following three elements to obtain a decision that a domain name should be either cancelled or transferred:
(i) the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) the respondent has no rights or legitimate interests with respect to the domain name; and
(iii) the domain name has been registered and is being used in bad faith
A. Identical or Confusingly Similar
The Complainant has a trademark registration for the trademark TRT HABER as evidenced in the Annexes to the Complaint.
The disputed domain name consists of the Complainant’s trademark TRT HABER followed by the generic Top-Level Domain (gTLD) identifier “.tv”. The only difference between the Complainant’s trademark TRT HABER and the disputed domain name is the gTLD identifier.
As a result, the Panel finds that the disputed domain name is identical to the Complainant’s service mark.
B. Rights or Legitimate Interests
The Complainant has made a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. The Respondent has not provided evidence of, or even asserted the existence of, circumstances of the type specified in paragraphs 4(c)(i), (ii) and (iii) of the Policy, being circumstances which demonstrate a right or legitimate interest in the disputed domain name.
The Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name, because there is no evidence in the case record that the disputed domain name bears a relationship with any legitimate business or other activity of the Respondent, and because the disputed domain name is not one that the Respondent, in the context of provision of services or information via a website, would use unless seeking to create a false impression of an association with the Complainant.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides a list of indicative circumstances that, if found by the Panel to be present, shall be evidence of bad faith registration and use, however, such list is not exhaustive and a finding of bad faith depends on the circumstances of each case. See Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003.
Paragraph 4(b)(ii) of the Policy provides that registration of a domain name in order to prevent the owner of a trademark or service mark from reflecting the mark in a corresponding domain name is evidence of bad faith registration and use of the domain name. The Respondent’s registration of the disputed domain name prevents the Complainant from reflecting its service mark in a corresponding domain name.
The Panel considers it an inescapable conclusion from the undisputed facts and circumstances reflected in the record that the Respondent must have known of and had in mind the Complainant and its business when registering the disputed domain name. See generally Ticketmaster Corporation v. Spider Web Design, Inc., WIPO Case No. D2000-1551. As noted in Research In Motion Limited v. Dustin Picov, WIPO Case No. D2001-0492, when a domain name is so obviously connected with a complainant, the very use of the domain name by a registrant with no connection to the complainant suggests “opportunistic bad faith”. See also Paule Ka v. Paula Korenek, WIPO Case No. D2003-0453. In view of the foregoing, the Panel can ascribe no motive for the Respondent’s registration and use of the disputed domain name as reflected in the record except to trade on the goodwill associated with the Complainant.
The Respondent’s bad faith is also shown by its use of the disputed domain name (or lack thereof). The disputed domain name does not appear to resolve to an active website, in addition the Respondent has offered to sell the disputed domain name to the Complainant and given the circumstances of this case, the Panel finds that this is further evidence of bad faith.
The Panel also notes that the Respondent has given its unambiguous consent on the record to transfer the disputed domain name to the Complainant and therefore its consent to transfer may be sufficient to this Panel to grant the remedy sought by the Complainant (see, e.g., The Net-A-Porter Group Limited v. Domains By Proxy, LLC a/k/a DomainsByProxy.com / No Filter News, WIPO Case No. D2013-0618).
In view of the above, the Panel finds that the Respondent has registered and is using the disputed domain name in bad faith, in accordance with paragraph 4(a)(iii) of the Policy. 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 <trthaber.tv> be transferred to the Complainant.
Dilek Ustun Ekdial
Date: October 23, 2013