WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Doğan Gazetecilik Anonim Şirketi v. Hasan Memisoglu Case No. D2010-0161 1. The Parties
The Complainant is Doğan Gazetecilik Anonim Şirketi of Istanbul, Turkey, represented by Dericioğlu & Yaşar Law Office, Turkey.
The Respondent is Hasan Memisoglu of New York, United States of America. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 4, 2010. On February 4, 2010, the Center transmitted by email to GoD, Inc. a request for registrar verification in connection with the disputed domain name. On February 8, 2010, GoD, Inc. 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 February 18, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was March 10, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on March 11, 2010.
On March 22, 2010, the Center appointed Kaya Köklü as the sole panelist in this matter. 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.
On April 1, 2010, the Center received a Supplemental Filing by the Complainant. This filing was forwarded by the Center to the Respondent and the Panel the same day.
The date scheduled for the issuance of the Panel's decision was April 7, 2010.
In accordance with the Rules, paragraph 11, and since the Parties have not agreed otherwise, the language of the administrative proceedings is the language of the Registration Agreement (i.e., English). 4. Factual Background
The Complainant is a company under the Doğan Şirketler Grubu A.S., which is Turkey's leading media and entertainment group. Among other fields of business, the Complainant is mainly active in publishing and sale of, inter alia, Turkish daily newspapers, magazines and books by print and electronic media.
Its portfolio comprises several well-known and famous newspapers and magazines like Hürriyet, Radikal, Fanatik, Referans, Turkish Daily News and Posta.
Posta is a mass market daily newspaper that is commonly known among the Turkish population.
The Complainant is the registered owner of the (figurative) trademark POSTA. The trademark was registered on May 31, 1995 (renewed in 2005) for goods and services within class 16, in particular for newspapers. In addition, the Complainant is the registered owner of the (figurative) trademark DÜNDEN BUGÜNE POSTA. This trademark was registered on January 31, 2003 and claims protection for goods and services within class 16 and 41, including newspapers and magazines.
In addition, the Complainant holds and operates various Internet sites including a homepage providing daily news in the Turkish language under the domain name .
The Respondent is an individual and the disputed domain name was registered to the Respondent on August 16, 2009.
When the Panel visited the Respondent's Internet site linked to the disputed domain name on April 1, 2010, on online daily news site in the Turkish language appeared to be displayed.
By visiting the Internet site linked to the disputed domain name, the Panel also recognized that the Respondent uses the word “posta” visually highlighted as the apparent title of its news service in the Turkish language. 5. Parties' Contentions A. Complainant
According to the provided information by the Complainant, Posta is the best-selling daily newspaper of its kind in Turkey with a circulation of more than 600,000. The Complainant sets forth that its newspaper Posta is well recognized by the general public and commercial advertisers.
The Complainant requests the transfer of the domain name and argues that (i) the disputed domain name is clearly identical to the trademarks registered by the Complainant, (ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name and (iii) the Respondent has registered the disputed domain name in bad faith.
In particular, the Complainant argues that it never granted any permission or license to the Respondent to use the trademark POSTA. In addition, the Complainant alleges that the Respondent has never used the name POSTA in any occasion before, and has not used the disputed domain name in connection with a bona fide offering of goods and services.
With its Supplemental Filing on April 1, 2010, the Complainant sets forth that the Respondent has just recently started to display what appears to be an online daily newspaper in the Turkish language at the website linked to the disputed domain name. The Complainant argues that this use by the Respondent is not connected with a bona fide offering of goods and/or services and the Respondent must have known about the Complainant's POSTA trademarks prior to the registration of the disputed domain name.
Literally, the Complainant argues in its Supplemental Filing the following:
“-Posta Gazetesi – has been identified with the Complainant for years. Moreover, it is not possible that the Respondent did not know about the Complainant since it is the best selling newspaper in Turkey. Therefore, the domain names have been registered by the Respondent in bad faith knowing that it is registering the identical mark of the Complainant as a domain name.”
Furthermore, the Complainant argues that when the “posta gazetesi” are searched in Google search engine, the Respondent's website appears on the first page of search results. This directs the consumers to the Respondent's website who presumably were seeking the Complainant's website which is detrimental to POSTA's reputation and which misleads Internet users.
In addition, the Complainant alleges that the website linked to the disputed domain name causes the impression that it “belongs to Posta Gazetesi of Doğan Gazetecilik A. Ş. Thus, the only use of the domain name is to convey misinformation to the users.” 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 the trademark 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 Complainant bears the burden of proving that all these requirements are fulfilled, even if the Respondent has not replied to the Complaint, Stanworth Development Limited v. E Net Marketing Ltd., WIPO Case No. D2007-1228.
However in the case of a respondent's default, the Panel may – as appropriate - accept the reasonable provided factual allegations in the Complaint as true, Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110.
Further independent research, by visiting the Internet site linked to the disputed domain name, was performed by the Panel on April 1, 2010. A Google search was carried out by the Panel as well.
The competence of the Panel to perform such independent research is undisputed and in line with previous UDRP panel decisions, e.g., Hesco Bastion Limited v. The Trading Force Limited, WIPO Case No. D2002-1038. A. Identical or Confusingly Similar
The Panel finds that the disputed domain name is confusingly similar to the Complainant's trademarks.
First, the Panel confirms that the Complainant has satisfied the threshold requirement of having trademark rights regarding the mark POSTA. It is not contested that the Complainant owns two figurative trademarks with the sign POSTA as the distinctive part of both trademarks.
Second, the disputed domain name comprises the word “posta” which is identical to the distinctive part of the Complainant's trademarks. The additional word “gazetesi” used in the disputed domain name is, in the Turkish language, only a generic term and means “newspaper”. The Panel finds that simply adding a generic term like “gazetesi” does not ameliorate the likelihood of confusion and does not make the disputed domain name distinctive as compared to the Complainant's trademarks.
Third, the Panel is even of the opinion that by using the additional word “gazetesi” in the disputed domain name, the likelihood of confusion with the Complainant's trademarks is increased as the word “gazetesi” clearly refers to the goods and services protected by the Complainant's trademarks and causes a high likelihood of confusion with the Complainant's print and online Posta newspaper.
Hence, the Panel is convinced that the first requirement in paragraph 4(a) of the Policy is fulfilled. B. Rights or Legitimate Interests
The Panel also finds that the Respondent has not demonstrated a right or legitimate interest in the disputed domain name.
While the burden of proof in principle rests with the Complainant, previous UDRP panels have recognized that this would result in the often impossible task of proving a negative feature, in particular as evidence concerning the Respondent's lack of rights or legitimate interests is primarily within the knowledge of the Respondent. Therefore, the Panel believes that the Complainant is thus required to make out a prima facie case in order to meet the requirements in paragraph 4(a)(ii) of the Policy at which point the burden shifts to the Respondent to come forward with rebutted evidence. Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455.
The Panel finds that the Complainant has satisfied this requirement, while the Respondent has failed to demonstrate any right or legitimate interests in the disputed domain name according to the Policy, paragraph 4(a)(ii) and 4(c).
With its Complaint, the Complainant has provided non-contested prima facie evidence that the Respondent has no trademark, license or any other similar right to use the disputed domain name, which the Respondent has not rebutted.
Accordingly, the Panel finds that the second requirement in paragraph 4(a) of the Policy is fulfilled. However, in order to provide a full analysis of the case record, the Panel will also discuss the current use of the disputed domain name.
Contrary to the Complaint of February 4, 2010, though in line with the Supplemental Filing of April 1, 2010, the Panel confirms that when it visited on April 1, 2010 the Internet site linked to the disputed domain name was in use as a daily news site in the Turkish language and not simply parked without providing any content.
Nonetheless, the Respondent has failed to demonstrate one of the three circumstances under the Policy, paragraph 4(c) or any other evidence of a right or legitimate interest in the disputed domain name. In particular, the Respondent has failed to show that it has used the Internet site linked to the disputed domain name in connection with a bona fide offering of goods and services prior to notice of the dispute.
To the contrary, the Panel is convinced that the Respondent must have known of the Complainant's POSTA trademarks when it registered the disputed domain name and when it started to operate an Internet site linked to the disputed domain name. This impression is supported by the fact that the sign “posta” is highlighted as a title on the Respondent's Internet site and, by that, it is confusingly similar to the Complainant's Internet site “www.”.
All in all, there is no indication that the disputed domain name is used in connection with a bona fide offering of goods and services.
In addition, there is no indication that the Respondent has been commonly known by the disputed domain name.
Finally, the Respondent also failed to demonstrate that it is making a legitimate noncommercial or fair use of the disputed domain name without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark at issue. To the contrary, the Panel believes that the Respondent operates the Internet site linked to the disputed domain name in order to gain commercial benefit via click-through revenue from a high number of clicks on the links displayed on its Internet site derived by misleading consumers who initially wanted to visit the Complainant's Internet site.
As a conclusion, the Panel finds that the Complainant has satisfied the requirements of 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
The Panel finds that the Respondent has registered and is using the disputed domain name in bad faith.
The Panel is well aware of the reputation of the Complainant's newspaper POSTA in Turkey. The Panel also recognizes the notoriety of the Complainant's trademarks and it believes that the Respondent, must have known of the newspaper and the Complainant's trademarks when having the disputed domain name registered on August 16, 2009.
It appears to this Panel that the Respondent has registered the disputed domain name purely for the purpose of creating a connection with the Complainant's well-known POSTA newspaper and Internet site “www.”.
The same is true concerning the use of the disputed domain name.
Although the Panel cannot confirm the Complainants contention that the disputed domain name appears on the first page when the words “posta” and “gazetesi” are searched with Google, the Panel nonetheless cannot see any possibility of conceiving a good faith use of the disputed domain name by the Respondent.
The fact that the Respondent had made no active use of the disputed domain name until very recently does not prevent a finding of bad faith and, taking all the circumstances into consideration, including the lack of any Response to the Complaint in this proceeding, the Panel finds that, for the purposes of the Policy, there is evidence of both registration and use of the disputed domain name in bad faith. This is particularly so given the Respondent's apparent recent attempt to use the domain name in connection with what appears to be a daily news periodical in the Turkish language. This use of the disputed domain name occurred only during the pendency of this administrative proceeding, and as such cannot be characterized as a bona fide offering of goods or services established prior to the Respondent's knowledge of the dispute. The Panel finds that such change in the content at the Respondent's website is merely pretextual, and therefore further indicative of the Respondent's bad faith.
The Panel rather finds that the Respondent's lack of Response supports the overall impression that it has registered and is using the disputed domain name in bad faith in order to mislead consumers and to make benefit of this.
In the light of the findings above, the Panel is convinced that the disputed domain name was registered and used in bad faith and that the Complainant has satisfied the third element of the Policy, namely, paragraph 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 disputed domain name be transferred to the Complainant.
Kaya Köklü
Sole Panelist
Dated: April 7, 2010
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