Complainant is Türkiye Garanti Bankasi Anonim Sirketi of Istanbul, Turkey, represented by Dericioglu & Yasar Law Office, Turkey.
Respondents are Esat Cansel and Holland Life of Nijmegen, Gelderland, Netherlands. 2. The Domain Name and Registrar
The disputed domain name is registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainR. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 8, 2010. On October 8, 2010, the Center transmitted by email to Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainR a request for registrar verification in connection with the disputed domain name. Later on October 8, 2010, Complainant spontaneously submitted an Amended Complaint, naming an additional respondent, as discussed below.
On October 11, 2010, Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainR transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the Respondents named in the Complaint and Amended Complaint. The Center sent an email communication to Complainant on October 25, 2010 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit a further amendment to the Amended Complaint. Complainant filed an amendment to the Amended Complaint on October 26, 2010. That amendment merely substituted the new contact and registrant information which had been provided in the registrar verification response for the previously identified Respondents.
The Center verified that the Complaint, the Amended Complaint and the amendment thereto 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(a) and 4(a), the Center formally notified Respondent of the Complaint, Amended Complaint and Amendment thereto, and the proceedings commenced on October 27, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was November 16, 2010.
Due to administrative error, Respondents were informed on October 27, 2010 in the Written Notice and in the Notice of Complaint and Commencement of Proceeding that the proceedings commenced on November 27, 2010, rather than the actual commencement date of October 27, 2010. The notices both stated that Respondents had until November 16, 2010 (or twenty days from commencement of proceedings under the Rules) to file a response to the Complaint. While this communication may have created ambiguity respecting the correct deadline for response, Respondents replied informally by email to the notices the same day, October 27, 2010, as described more fully below. After receiving Respondents’ brief email, the Center twice asked in writing whether Respondents would be submitting any further responses, reminding Respondents of the November 16 deadline.
Respondents did not submit a formal response or further communications, and on November 17, 2010, the Center notified the parties that panel appointment would follow.1
The Center appointed Nasser A. Khasawneh as sole panelist in this matter on November 25, 2010. 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
Complainant is owner of several Turkish trademark registrations for the term “garanti,” including, for example Turkish registration grant number 2000 10404 (GARANTI, with design), registered May 30, 2000 in Nice classes 9, 35, 36, 38 and 42 and Turkish registration grant number 2008 05913 (GARANTI, stylized letters) registered January 25, 2010, in class 13.
Complainant also owns several Turkish trademark registrations that incorporate the term “garanti” along with other terms, as well as trademark grant number 2000 10408 registered May 30, 2000 for the trademark WWW.GARANTI.COM.TR, in classes 9, 35, 36, 38 and 42.2
The disputed domain name was registered July 20, 2010 and presently routes to a website in Turkish selling GPS units and other electronic devices.3 The website purports to represent “Garanti GPS,” a “service of [Respondent] Holland Life.” 5. Parties’ Contentions A. Complainant
Complainant avers that Türkiye Garanti Bankası Anonim Şirketi, with 63 years of established history, is Turkey's second largest private bank having a total asset size of USD 78 billion. Complainant avers that it is a "universal bank" well recognized under the “Garanti” name around the globe, that it has 9 million customers and nearly 17,000 employees.
Complainant initially filed the Complaint against İlke Dumanlı of Berlin, Germany, based upon WhoIs information which Complainant represents was listed as of October 4, 2010. Complainant then submitted an Amended Complaint on October 8, 2010, alleging that Respondent Dumanli had transferred the disputed domain name to Respondent Esat Cansel on October 4, but that these two individuals should be treated as related, since Dumanli sent Complainant an email in response to the filing of the first Complaint against him. Therefore, the Amended Complaint named both Respondents Dumanli and Esat Cansel.
On October 16, 2010 Complainant’s counsel wrote to the Center, alleging that on October 12, Respondent Dumanli sent a further email to Complainant’s counsel stating, “Dear Ms. [counsel’s name omitted] I hope that you registered your name as a domain name. Have a nice day”. Counsel refers to and includes evidence that her name was used as the basis for two new domain name registrations made on October 12, 2010, and requests that the Panel take notice that such conduct is a threat and confirms Respondents’ bad faith.4
Complainant alleges that the disputed domain name is identical to its registered marks.
Complainant also contends that “It is obvious that there is no evidence that the Respondent used the disputed domain name in connection with a bona fide offering of goods or services, the Respondent is not commonly known by the disputed domain name, and the Respondent is not making a legitimate non-commercial or fair use of the disputed domain name. . . . the motive behind the respondent’s registration of the disputed domain name is merely to take unfair advantage of the Complainant . . .. Accordingly, the use of the disputed domain name by the respondent indicates the bad faith of the respondent.”
With respect to bad faith, Complainant makes many other allegations based upon two prior registrants of the disputed domain name, and the prior registrants’ alleged passive holding and abusive registration of other domain names (see, in reference to the first registrant Andrew Espanza, Akbank Turk A.S. v. Mr. Cihan Uluca, Andrew Espanza, Ahmet Mithat,WIPO Case No. DCO2010-0001). Since the website to which the disputed domain name is presently active (not passively held), and on the record it is not clear whether the two prior registrants are necessarily associated with Respondents, the Panel finds it unnecessary to go into detail respecting those allegations.
Complainant concludes that Respondents “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 . . . documented out-of-pocket costs directly related to the domain name.”
On the basis of the above, Complainant seeks transfer of the disputed domain name. B. Respondents
Respondents did not submit a formal Response in reply to Complainant’s contentions. However, Respondents did send a brief email to the Center, stating “I would love to add attached documents also in case annexes file. Compliant [sic] has no control about other extensions of ‘Garanti’ and they trying to take advantage about which my web store for GPS products.”
The attached documents to which Respondents’ email refers consist of WhoIs records showing registrations of three domain names containing the “garanti” term owned by three different parties not involved in this proceeding. Respondents did not comment or explain the significance which they attribute to these annexes.5 6. Discussion and Findings
The Rules require the Panel to decide a complaint on the basis of the statements and doc
