WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Türk Telekomünikasyon Anonim Şirketi v. Ferhat Ozan / Deltatech Yazılım Bilgisayar Sis. Müh. Dan. San. ve Tic. Ltd. Şti.

Case No. D2016-2399

1. The Parties

The Complainant is Türk Telekomünikasyon Anonim Şirketi of Ankara, Turkey, represented by Tellioğlu Kaşlıoğlu Hukuk Bürosu, Turkey.

The Respondent is Ferhat Ozan / Deltatech Yazilim Bilgisayar Sis. Müh. Dan. San. ve Tic. Ltd. Şti. of Istanbul, Turkey, self-represented.

2. The Domain Name and Registrar

The disputed domain name <turktelekomelektrik.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 November 28, 2016. On November 28, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 29, 2016, 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 December 2, 2016. In accordance with the Rules, paragraph 5, the due date for Response was December 22, 2016. The Respondent sent an email on December 7, 2016 in Turkish indicating that it does not understand English and requesting all documents in Turkish. The Center replied in Turkish and English indicating that as the Registrar confirmed the Registration Agreement is in English and the Complaint was filed in English, the proceeding was in English. The Respondent did not submit any formal response. Accordingly, the Center informed that it would proceed to appoint the Administrative Panel on December 23, 2016.

The Center appointed Gökhan Gökçe as the sole panelist in this matter on December 29, 2016. 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, Türk Telekomünikasyon Anonim Şirketi, with 175 years of long-standing history, is the first integrated telecommunication company of Turkey. The Complainant is one of the largest telecommunications and information technology companies in Turkey. The Complainant offers a complete range of mobile, fixed voice and broadband and TV services all around Turkey with almost 34,000 employees.

The Complainant is the owner of many trademarks including the terms “Türk Telekom”, which have been registered with the Turkish Patent Institute. These include, inter alia, the word mark TÜRK TELEKOMÜNİKASYON TTE with registration number 58401, registered on December 31, 1977; figurative trademark for TÜRK TELEKOM with registration number 2008 40228, registered on April 22, 2010 and the word mark TÜRK TELEKOM AKADEMİ with registration number 2008 18993, registered on March 23, 2009 (hereafter collectively referred to as the “TÜRK TELEKOM trademarks”).

Besides other TÜRK TELEKOM trademarks, the Complainant is also the owner of TÜRK TELEKOM ELEKTRİK trademark with the registration number 2014 14085, which was registered before the Turkish Patent Institute on November 24, 2014. The Complainant is the owner of several domain names which incorporate its trademarks. The Complainant also registered the domain name <turktelekomelektrik.com.tr> on December 1, 2015.

The disputed domain name was registered on April 26, 2016.

The Panel visited the disputed domain name on January 8, 2017, and observed that the disputed domain name directed to a parked page with the following text: “This Web page is parked for FREE, courtesy of GoDaddy.com”.

5. Parties’ Contentions

A. Complainant

In accordance with paragraph 4(i) of 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.

Identical or Confusingly Similar

The Complainant requests the transfer of the disputed domain name.

It is of the opinion of the Complainant that the disputed domain name is identical to the TÜRK TELEKOM ELEKTRİK trademark and confusingly similar to the TÜRK TELEKOM trademarks owned by the Complainant.

Rights or Legitimate Interests

Furthermore, the Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name. In particular, the Complainant states that it has never granted a license or any other permission to the Respondent to use its trademarks TÜRK TELEKOM ELEKTRONİK or TÜRK TELEKOM. The Complainant further alleges that “Türk Telekom” or “Türk Telekom Elektrik” is not a common word or a generic name commonly used by third parties with regards to any goods and/or services.

Registered and Used in Bad Faith

Finally, the Complainant is of the opinion that the Respondent has registered and is using the disputed domain name in bad faith. The Complainant is argued that the Respondent has registered and is using the disputed domain name in bad faith, in particular as the Respondent must have been well aware of the Complainant and its trademarks which are well known in Turkey, as the Respondent is a Turkish citizen and shareholder of a company named “Deltatech Yazılım Bilgisayar Sis. Müh. Dan. San ve Tic. Ltd. Şti.”, which is a software and computer company. In light of the creation date of the disputed domain name, the Complainant argues that it is obvious that the Respondent has registered the disputed domain name after the registration of the Complainant’s TÜRK TELEKOM ELEKTRİK trademark and after the creation of the Complainant’s <turktelekomelektrik.com.tr> domain name.

B. Respondent

Aside from the email mentioned above, the Respondent did not submit a formal reply to the Complainant’s contentions.

6. Discussion and Findings

6.1. Language of Proceedings

The Panel notes that under paragraph 11(a) of the Rules, unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceedings shall be the language of the Registration Agreement. In the present case, the Respondent selected to register the disputed domain name by using an English Registration Agreement and, in the circumstances, the Complaint was submitted in English.

The Panel hereby decides that English shall be the language of the administrative proceeding in the present case.

6.2. Substantive Issues

As the Respondent has not filed a Response, the Panel may decide the dispute based on the Complaint and may accept all reasonable factual allegations as true. The Panel may also draw appropriate inferences from the Respondent’s default. Talk City, Inc. v. Michael Robertson, WIPO Case No. D2000-0009.

According to paragraph 4(a) of the Policy, the following three elements must be proven by the Complainant, to merit a finding that the disputed domain name be transferred to the Complainant:

(a) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(b) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and

(c) the disputed domain name has been registered and is being used in bad faith.

Finally, it is noted that the Panel has taken note of the WIPO Overview of 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 TÜRK TELEKOM ELEKTRİK trademark of the Complainant.

As evidenced in the Complaint, the Complainant is the owner of several word and figurative TÜRK TELEKOM and TÜRK TELEKOM ELEKTRİK trademarks registered in Turkey. The first trademark application for the trademark TÜRK TELEKOM dates back to the year 2001. The Complainant has relied several registered trademarks with the Turkish Patent Institute and shown that it owned the trademark TÜRK TELEKOM ELEKTRİK at the time the Complaint was lodged and that it is sufficient to establish its standing for the purpose of paragraph 4(a)(i) of the Policy. Kabushiki Kaisha Hitachi Seisakusho (d/b/a Hitachi Ltd) v. Arthur Wrangle, WIPO Case No. D2005-1105; Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903; Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr., WIPO Case No. D2000-1525; EAuto, L.L.C. v. Triple S. Auto Parts d/b/a Kung Fu Yea Enterprises, Inc., WIPO Case No. D2000-0047.

Furthermore, the Complainant registered and uses the domain name <turktelekomelektrik.com.tr>, which is identical to the disputed domain name <turktelekomelektrik.com> except for the country code Top-Level Domain (“ccTLD”) “.tr”. The Complainant registered the domain name < turktelekomelektrik.com.tr > on December 1, 2015. The domain names with the “.com.tr” extension are used by persons and legal entities for commercial purposes, and a “.tr” domain name applicant must submit an official documentation demonstrating that the applicant registered a trademark or corporate name for the words incorporated in the domain name. Due to the stringent application procedure, the Panel believes that the Complainant registered and is a rightful owner of the domain name < turktelekomelektrik.com.tr> as it reflects its business name which may demonstrate the strength of its mark.

In view of the above, the Panel is satisfied that the Complainant has met the requirements under paragraph 4(a)(i) of the Policy. Accordingly, the Panel finds in favor of the Complainant on the first element of the Policy.

B. Rights or Legitimate Interests

The Panel further finds that in the absence of a Response, the Respondent has failed to demonstrate any rights or legitimate interests in the disputed domain name.

While the burden of proof remains with the Complainant, the Panel recognizes that this would often result in the impossible task of proving a negative, in particular as the evidence needed to show the Respondent’s lack of rights or legitimate interests is 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 of evidence 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. Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455.

In the light of the evidence submitted by the Complainant, and the Panel’s researches, e.g., trademark registration certificates, domain name registrations, etc., it is clear to the Panel that the Complainant has earlier and lawful rights in the TÜRK TELEKOM ELEKTRİK trademark. Therefore, the Panel finds on the current record that the Complainant has proved rights in the TÜRK TELEKOM ELEKTRİK trademark and also established a prima facie case that the Respondent does not have any rights or legitimate interests in the disputed domain name for the purposes of the Policy. The Complainant has not granted the Respondent any right or license to use the TÜRK TELEKOM ELEKTRİK trademark. Therefore, in the absence of any license or permission from the Complainant to use any of its trademarks or to apply for or use any domain name incorporating those trademarks, it is clear that no actual or contemplated bona fide or legitimate use of the disputed domain name could be claimed by the Respondent in the present circumstances. Guerlain S.A. v. Peikang, WIPO Case No. D2000-0055.

The Panel visited the disputed domain name on January 8, 2017 and found that the disputed domain name is parked with the Registrar and displays sponsored links. Therefore, the Panel finds that the Respondent is not making use of the disputed domain name in connection with a bona fide offering of goods or services or making a legitimate noncommercial or fair use of the disputed domain name. LEGO Juris A/S v. Admin Hostmaster, WIPO Case No. D2016-1474.

In the absence of a Response, the Respondent failed to provide any indication that it is commonly known by the disputed domain name. Furthermore, the Respondent has failed to demonstrate any of the other nonexclusive circumstances evidencing rights or legitimate interests under the Policy, paragraph 4(c) or any other evidence of a right or legitimate interest in the disputed domain name.

Consequently, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy. Accordingly, the Panel finds in favor of the Complainant on the second element of the Policy.

C. Registered and Used in Bad Faith

Finally, the Complainant must show that the disputed domain name has been registered and is being used in bad faith under paragraph 4(a)(iii) of the Policy.

Paragraph 4(b) of the Policy provides a non-exhaustive list of circumstances that, if found by a panel to be present, shall be evidence of the registration and use of a domain name in bad faith:

(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or

(ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or

(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent’s website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on the respondent’s website or location.

By consideration of the foregoing, the Panel is of the opinion that due to the earlier rights of the Complainant in the trademark TÜRK TELEKOM ELEKTRİK, as well as its extensive and intensive usage and considering the size of the Complainant’s business, the Respondent, who appears to be located in Turkey where the Complainant is well known in its sector, was aware of the Complainant and its TÜRK TELEKOM ELEKTRİK trademark at the time of registration of the disputed domain name. The Panel believes that the awareness of the Complainant’s trademark at the time of the registration of the disputed domain name has to be considered as an inference of bad faith registration. Banca Sella S.p.A. v. Mr. Paolo Parente, WIPO Case No. D2000-1157; Expedia, Inc. v. European Travel Network, WIPO Case No. D2000-0137.

When the Panel visited the disputed domain name, it resolved to the Registrar-parked website and the Respondent and/or the Registrar presumably earns click-through revenues from the sponsored links. Such use amounts to bad faith under paragraph 4(b)(iv) of the Policy. WIPO Overview 2.0, paragraph 3.8. The Respondent has not submitted any evidence or suggestion that he has any intention of using the disputed domain name for any purpose or legitimate activity consistent with good faith use.

Moreover, some panels find that the concept of passive holding may apply even when the domain name is parked by a third-party. Paragraph 3.2 of the WIPO Overview 2.0 states that the lack of active use of the domain name does not as such prevent a finding of bad faith. The Panel finds that even if the disputed domain name is considered to be passively held, that passive holding of a domain name does not avoid a finding of bad faith, as found in several UDRP decisions, Banco Bilbao Vizcaya Argentaria, S.A. v. Victor Edet Okon, WIPO Case No. D2004-0245; Telstra Corporation Limited, supra; DCI S.A. v. Link Commercial Corporation, WIPO Case No. D2000-1232; CareerBuilder, LLC v. Finity Development Group, WIPO Case No. D2006-0615.

As in Telstra Corporation Limited v. Nuclear Marshmallows, supra and Ladbroke Group Plc v. Sonoma International LDC, WIPO Case No. D2002-0131, after examining all circumstances surrounding the registration and use of the disputed domain name, the Panel finds that the Respondent registered and is using the disputed domain name in bad faith. Accordingly, the Panel finds in favor of the Complainant on the third element of the Policy.

7. Decision

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 <turktelekomelektrik.com> be transferred to the Complainant.

Gökhan Gökçe
Sole Panelist
Date: January 10, 2017