WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Hurriyet Gazetecilik Ve Matbaacilik A.S. v. H
Case No. D2007-0596
1. The Parties
The Complainant is Hurriyet Gazetecilik Ve Matbaacilik A.S., Gunesli Istanbul, Turkey, represented by Istanbul Patent & Trademark Consultancy Ltd., Turkey.
The Respondent is H, Berlin, Germany.
2. The Domain Name and Registrar
The disputed domain name is registered with Network Solutions, LLC.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 19, 2007. On April 20, 2007, the Center transmitted by email to Network Solutions, LLC a request for registrar verification in connection with the domain name(s) at issue. On April 20, 2007, Network Solutions, LLC 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”), 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”). After having notified the recorded Registrant (Respondent) of the Complaint using the contact details contained in the Complaint, the Center became aware that the correct address of the registrant was different from this address. In accordance with the Rules the Center therefore sent out a Re-Notification of the Complaint to the correct address.
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally (re-) notified the Respondent and the proceedings (re-) commenced on June 15, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was July 5, 2007. The Respondents did not submit any response. Accordingly, the Center notified the Respondents` default on July 6, 2007.
The Center appointed Knud Wallberg as the sole panelist in this matter on July 23, 2007. 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 a Turkish publishing company listed on the Istanbul Stock Exchange, which publishes a number of newspapers and online services in Turkey and abroad including the newspaper “H�rriyet”.
H�RRIYET is registered as a trademark in a number of jurisdictions for goods in class 16 including in Turkey, the European Union and the Unites States of America. H�RRIYET is also registered as a part of several other trademarks in the said jurisdictions. In addition the Complainant holds and operates several websites including a website under the domain name .
5. Parties’ Contentions
A. Complainant
The domain name is identical the well-known trademark of the Complainant.
The Complainant alleges that the Respondent do not have any rights or legitimate interest in the contested domain name. The Complainant has not licensed or other wise permitted the Respondent to register and use H�RRIYET as trademark or as part of a domain name. The Complainant further alleges that the Respondent is not commonly known under the domain name.
Lastly, the Complainant alleges that the contested domain name was registered and is used in bad faith. The Complainant’s trademark is a well-known mark and the Respondent must have been aware of Complainant activities and of Complainant’s rights in the mark, when he registered the contested domain name. It is an additional indication of bad faith that the Respondent apparently tried to conceal his identity in the domain name register. The domain name is not being used actively but as it has been stated in several previous decisions under the UDRP inactivity or passive holding of a domain name may be construed as bad faith use.
B. Respondent
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
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 and on the basis of the Complaint where no Response has been submitted.
In accordance with Paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements are satisfied:
(i) the domain name 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 in respect of the domain name; and
(iii) the domain name has been registered and is being used in bad faith.
Paragraph 4(a) of the Policy states that the burden of proving that all these elements are present lies with the Complainant. At the same time, in accordance with Paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules or any request from the Panel, the Panel shall draw such inferences therefrom as it considers appropriate.
A. Identical or Confusingly Similar
The Panel finds that the disputed domain name for the purpose of this proceeding is identical or at least confusingly similar to the trademark H�RRIYET in which Complainant has rights.
Consequently the Panel finds that the Complainant has proved that the condition under the Rules, paragraph 4(a)(i) is fulfilled.
B. Rights or Legitimate Interests
The Complainant states inter alia that the Respondent has no rights or legitimate interests in the domain name. The Respondent has not rebutted this allegation and, based on the record of this case it is unlikely that any such rights or interests may exist.
The Complainant has not licensed or otherwise permitted the Respondent to use its trademark or to apply for any domain name incorporating the Complainant’s trademark.
The requirements of the Policy, paragraph 4(a)(ii), are also considered by the Panel to be fulfilled.
C. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy requires the Complainants to prove both registration and use of the disputed domain names in bad faith. Paragraph 4(b)(i) of the Policy provides an example of circumstances which shall be evidence of registration and use in bad faith.
The Panel finds that the Complainant’s trademark H�RRIYET was a distinctive and well-known mark not only in Turkey but also at least to a certain extent abroad when the contested domain name was registered. Further, since the Respondent has not provided the Panel with any explanation regarding the reason for registering the disputed domain name, it is therefore not credible to the Panel that the Respondent registered the disputed domain name without knowledge of the Complainant and his rights to the mark.
The Panel therefore finds that the contested domain name was in all likelihood registered in bad faith.
The Respondent has apparently not been using the disputed domain name and at present the domain name resolves to a blank page. However, as first stated in Telstra v. Nuclear Marshmallows, WIPO Case No. D2000-0003, and repeated in many subsequent decisions under the UDRP:
“the concept of a domain name “being used in bad faith” is not limited to positive action; inaction is within the concept. That is to say, it is possible, in certain circumstances, for inactivity by the Respondent to amount to the domain name being used in bad faith.”
In the circumstances of this case, the Respondent’s lack of active use of the domain name is likely to disrupt the business of the Complainants since it could give those Internet users that will look for information on the Complainant the impression that the Complainant is not present on the Internet. By registering the domain names the Respondent further prevents the Complainant from being present under the “.com” gTLD under a domain name that corresponds to his trademark. The Panel also notes that the domain names incorporates a well-known trademark, that no Response has been filed, and that there appears to be no conceivable good faith use that could be made by the Respondent of the disputed domain name.
Accordingly, the Panel finds that the disputed domain names were registered and are being used in bad faith. The Complainant has proved element 4(a)(iii) of the Policy.
7. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name, be transferred to the Complainant.
Knud Wallberg
Sole Panelist
Dated: August 3, 2007
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