WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Horoz Lojistik Ve Kargo Hizmetleri Tic A.S. v. TTR Bilisim Hizmetleri San Tic. Ltd. STI Case No. D2009-0766 1. The Parties
The Complainant is Horoz Lojistik Ve Kargo Hizmetleri Tic A.S. of Istanbul, Turkey, represented by Gür Law & IP Firm, Turkey.
The Respondent is TTR Bilisim Hizmetleri San Tic. Ltd. STI, of Istanbul, Turkey. 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 June 11, 2009. On June 11, 2009, 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. On June 15, 2009, Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainR 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on June 25, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was July 15, 2009. The Response was filed with the Center on June 29, 2009.
The Center appointed Dilek Ustun as the sole panelist in this matter on July 6, 2009. 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 Horoz Lojistik ve Kargo Hizmetleri A.S. was founded in 1942 by Mehmet Emin Horoz to operate on land and railway transportation, warehouse keeping and stockpiling.
The Complainant Horoz Lojistik ve Kargo Hizmetleri A.S. has the following trademarks registered by the Turkish Patent Institute.
HOROZ – Registered in the Republic of Turkey in 2000 by the Turkish Patent Institute, Trademark No. 2000 10974.
HOROZ YATİRİM HOLDİNG LOJİSTİK KARGO TAŞIT SERVİS+DEVİCE – Registered in the Republic of Turkey in 2003 by the Turkish Patent Institute, Trademark No. 2003 24983.
The Complainant's domain name has been registered on June 18, 1998 by Middle East Technical University, the country code ‘.tr' domain name administration authority.
The domain name was registered on September 25, 2003. 5. Parties' Contentions A. Complainant
The Complainant contends that:
1. The disputed domain name is identical or confusingly similar to the Complainant's well-known trade/service marks.
2. The Respondent has no rights or legitimate interests in respect of the domain name. The Complainant argues, inter alia, that the Respondent is not using the domain name in connection with a bona fide offering of goods and services. The Complainant also contends that the domain name in question is not a trademark by which the Respondent is commonly known, and that the Respondent is not making a legitimate noncommercial or fair use of the domain name.
3. The domain name was registered and is being used in bad faith. B. Respondent
The Respondent is providing domain name registrations, web hosting and web design and programming services to its clients all around Turkey. The Respondent argues that the disputed domain name is neither identical nor similar to the Complainant's registered trademarks.
The Respondent has rights and legitimate interests because they have registered the domain name in the name of their client “Horoz Nakliyat” according to an agreement. As such it appears it is possible the Respondent is holding the disputed domain name (or did at one point) for the benefit of another. Nonetheless, the Respondent states no confusion is occurring from its ownership and use of the disputed domain name. 6. Discussion and Findings
According to paragraph 15(a) of the Rules: “A panel shall decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.” Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:
(i) [that the] domain name [registered by the Respondent] is identical or confusingly similar to a trademark or a service mark in which the Complainant has rights; and
(ii) [that the Respondent has] no rights or legitimate interests in respect of the domain name; and
(iii) [that the] domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
Complainant has proven that it owns the trademark/service mark(s) comprising solely the mark HOROZ, and HOROZ YATİRİM HOLDİNG LOJİSTİK KARGO TAŞIT SERVİS+DEVİCE.
The trademark is included in the disputed domain name. The suffix is incidental to a domain name and cannot serve to distinguish it. Additionally, by the time the Respondent registered the domain name in his own name, the Complainant was already a well-known establishment in Turkey.
It is generally understood that for the purposes of the Policy a right in a trademark can be established by a trademark registration or a showing of unregistered trademark rights. The latter is the case when the mark has been established on the market (see Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Cases No. D2000-0003 and ASSA ABLOY AB v. P D S AB, WIPO Case No. D2000-0442).
Numerous Policy decisions have recognized that the incorporation of a trademark in its entirety is sufficient to establish that a domain name is identical or confusingly similar to a complainant's trademark (See Yapi Ve Kredi Bankasi A.S. v. Internet Bazaar AS, NAF Claim No. FA0107000098243; Quixar Investments, Inc. v. Dennis Hoffman,WIPO Case No. D2000-0253).
This Panel reaches the same conclusion with the panel in Turkcell Iletisim Hizmetleri A.S. v. Celile Gun,WIPO Case No. D2008-0128.
“The use of a generic term (i.e. “technology”) or the translated version of the Complainant's mark does not, by itself, remove the element of confusing similarity in the context of this proceeding. Although the word “technology” on its own is a generic word, the use of the Complainant's TURKCELL mark in combination therewith renders the domain name confusingly similar to the Complainant's TURKCELL and TURKCELLTEKNOLOJI marks.”
Based on the fact that the Respondent's domain name fully contains one of the Complainant's trademarks and adds a dictionary term that corresponds to another of the Complainant's trademarks it is confusingly similar to the Complainant's trademarks, and the Panel is satisfied that the first element of paragraph 4(a) of the Policy has been proven by the Complainant. B. Rights or Legitimate Interests
The Complainant contends that the Respondent has no rights or legitimate interests in respect of the domain name. The Complainant argues, inter alia, that the Respondent is not using the domain name in connection with a bona fide offering of goods and services. The Complainant also contends that the domain name in question is not a trademark by which the Respondent is commonly known, and that the Respondent is not making a legitimate non-commercial or fair use of the domain name.
Viewing this situation in light of paragraph 4(c) of the Policy, what Respondent has done to date is not a bona fide offering of goods or services. There is little evidence whatsoever that the Respondent has been commonly known by the domain name, nor has the Respondent demonstrated any trademark or service mark rights in the name to the Panel's satisfaction. Further, the Respondent has made no noncommercial or fair use of the name.
The Respondent has not provided any evidence of the type specified in paragraph 4(c) of the Policy, or any other circumstances giving rise to a right or legitimate interest in the domain name.
The Panel therefore concludes that Respondent has no rights or legitimate interests in the domain name and that the requirement of the UDRP paragraph 4(a)(ii) is satisfied. C. Registered and Used in Bad Faith
As discussed above, the Complainant has provided ample evidence to indicate that it has rights to the marks, which are widely-known in Turkey. Being located in Turkey, the Respondent must in all likelihood have known that s/he was securing the registration of a domain name which wholly comprised a widely-known mark in Turkey. This being the case, it is improbable that the Respondent was not aware of the Complainant's rights to the mark comprising the domain name. This establishes knowledge on the Respondent's part.
The Panel, in accordance with previous decisions issued under the Policy, is of the opinion that this knowledge of the Complainants' trademark at the time of the registration of the disputed domain names may be considered as an inference of bad faith (see Parfums Christian Dior v. Javier Garcia Quintas and C,WIPO Case No. D2000-0226).
The fact that the domain is currently inactive does not prevent the Respondent from being in bad-faith. The act of keeping a domain name in inactive state can constitute bad faith, including where the domain name comprises a name which can only sensibly refer to the Complainant or where there is no obvious possible justification for the selection of the domain name (see Sony Kabushiki Kaisha v. S, WIPO Cases No. D2000-1074 and Telstra Corporation Supra).
All the circumstances, taken together, need to be assessed in determining the question of bad faith. In this case, the following facts are considered relevant:
- that the mark is a widely-known mark in Turkey;
- that the Respondent has no right or legitimate interest to the domain name;
- that there is no evidence of actual or intended use in good faith;
These facts, besides other trusted evidences of the Complainant, form the ground on which the Panel can depend in concluding bad faith of the registrant. For the reasons outlined above, the Panel finds that the domain name has been registered or used in bad faith by the Respondent. 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.
Dilek Ustun
Sole Panelist
Dated: July 10, 2009
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