The Complainant is Akbank Turk A.S., of Istanbul, Turkey, represented by Istanbul Patent & Trademark Consultancy Ltd., Turkey.
The Respondent is C/Vanek Vanek, na piskach 505, hostivice, - 25301, CZ. 2. The Domain Name and Registrar
The disputed domain name is registered with Tucows Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 24, 2010. On September 24, 2010, the Center transmitted by email to Tucows Inc. a request for registrar verification in connection with the disputed domain name. On September 27, 2010, Tucows Inc. transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on October 6, 2010, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on October 8, 2010.
The Center verified that the Complaint, together with the amendment to 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 October 11, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was October 31, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 1, 2010.
The Center appointed Nicoletta Colombo as the sole panelist in this matter on November 10, 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
The Complainant “Akbank Turk A.S.”, well-known briefly as Akbank, is a top-tier Turkish bank. Founded in 1947, Akbank is now one of the largest banks in Turkey.
The Complainant has been using the Trademark AKBANK continuously since 1947 and owns several trademarks composed with the trademark AKBANK. Akbank also holds several domain names that are comprised of the word AKBANK.
Akbank is also active in social activities. For instance, the Akbank Art Center, which has the goal to support culture, art and artists, without any commercial interest. In addition, the Complainant is the sponsor of the Akbank Jazz Festival that has taken on the mission of developing a deep-rooted musical culture and that, since 1990, has been one of the most important jazz happenings in Turkey.
The Respondent registered the contested Domain Name on June 20, 2001. 5. Parties’ Contentions A. Complainant
The Complainant contends the following:
(a) The contested Domain Name is confusingly similar to the trademarks and the Company Name of the Complainant because:
- it reproduces the Complainant's trademark in its entirety;
- the addition of the word “jazz” in the contested Domain Name does not detract from associating it to the trademark and the company name of the Complainant;
- using, together with the Complainant’s main trademark AKBANK, the generic English word “jazz,” which refers to festivals organized by the Complainant for 20 years, does not eliminate the visual and conceptual identity with the Complainant’s trademark.
(b) The Respondent has no rights or legitimate interests in respect to the Domain Name because:
- the Complainant has never given to the Respondent any license or authorization to use the Complainant’s trademark;
- the Respondent has no registered trademarks or trade names corresponding to the contested Domain Name.
(c) The contested Domain Name was registered and is being used in bad faith because:
- the contested Domain Name is currently directing to an empty page;
- the Respondent has no registered trademarks or trade names corresponding to the contested Domain Name;
- as a Turkish citizen, it is unlikely that the Respondent was not aware of the Complainant's legal right to the AKBANK mark at the time of the registration of the contested Domain Name;
- the Respondent used “privacy services” to hide his identity and to be unreachable by the Complainant;
- the Respondent did not answer the cease and desist letter sent by the Complainant;
- the Respondent registered the contested Domain Name in order to prevent the Complainant from registering it. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The contested Domain Name incorporates the word “akbank,” which constitutes the Complainant's trademark and Company name.
The only difference between the contested Domain Name and the trademark of the Complainant is the addition of the word “jazz”. The addition of the mentioned English word, which is a generic term, does not add a distinctive element to the contested Domain Name and does not render it dissimilar to the trademark of the Complainant.
Moreover, such addition increases the likelihood of confusion between the contested Domain Name and the Complainant's trademark, because the Complainant has been the organizer for 20 years of a jazz festival in Turkey for which it used the name “Akbank Jazz festival.” Therefore, the term “jazz” simply strengthens the bond and relation with the Complainant’s trademark itself.
There are numerous UDRP decisions stating that confusing similarity, for the purposes of the Policy, is established inter alia when a domain name wholly incorporates a complainant's mark and only adds a generic word along with it (see i.e., F. Hoffmann-La Roche AG v. Bobik Marley,WIPO Case No. D2007-0694. Deceininck NV, Thyssen Polymer GmbH v. Beloussov Dimitriy,WIPO Case No. D2007-0347; Société des Bains de Mer et du Cercle des Etrangers à Monaco v. LaPorte Holdings, LLC.,WIPO Case No. D2005-0526).
Additionally, the Panel does not consider, when analyzing the identity or similarity, the suffix, in this case “.com,” because it is a necessary component of the Domain Name and does not give any distinctiveness (see i.e., Crédit Industriel et Commercial SA v. Name Privacy,WIPO Case No. D2005-0457).
Therefore the Panel finds that the contested Domain Name is confusingly similar to the Complainant’s trademark and Company name. A. Rights or Legitimate Interests
The Complainant has several trademark registrations for AKBANK and owns several domain names, which include the trademark AKBANK, which is also part of its company name. Therefore it has been proven that the Complainant has rights in the AKBANK trademark.
The Respondent has not filed any response in this case. There is a prima facie case made by the evidence provided to the Panel that the Respondent has no rights or legitimate interests in the contested Domain Name, (see paragraph 4(c) of the Policy; Société des Bains de Mer et du Cercle des Etrangers à Monaco v. Grande Media,WIPO Case No. D2007-0840; and UPIB, Inc. v. Texas Internet, WIPO Case No. D2004-0073).
Moreover, the Complainant has not licensed or otherwise permitted or authorized the Respondent to use its trademark AKBANK, nor has the Respondent been authorized to register and use the contested Domain Name
Under these circumstances, the Panel finds that the Respondent has no rights or legitimate interests in registering the contested Domain Name. B. Registered and Used in Bad Faith
The Respondent must have been aware of the existence of the AKBANK mark owned and used by the Complainant. The Respondent must have been also aware that the Complainant is the organizer of a well known jazz festival in Turkey. Only someone who was familiar with the Complainant's mark and its activity would have registered the contested Domain Name inclusive of such mark (see Aventis, Aventis Pharma SA. v. John Smith,WIPO Case No. D2004-0850; AT&T Corp. v. Xinzhiyuan Management Consulting Co., Ltd.,WIPO Case No. DCC2004-0001; British Sky Broadcasting Group plc, v. Mr. Pablo Merino and Sky Services S.A,WIPO Case No. D2004-0131; and Deutsche Telekom AG v. Britt Cordon,WIPO Case No. D2004-0487).
There is no information as to the business activity of the Respondent that would justify the registration and the use of the contested Domain Name, nor is there evidence of any rights or legitimate interest in said domain name by the Respondent. The Panel finds that, in the absence of any rights or legitimate interests and in the absence of any contrary evidence from the Respondent, the Respondent’s registration of a domain name confusingly similar to the Complainant’s trademark was done in bad faith (see Accor v. Howell Edwin,WIPO Case No. D2005-0980; Ferrero S.p.A. v. Publinord S.r.l.,WIPO Case No. D2002-0395; Banca Sella S.p.A. v. Mr. Paolo Parente,WIPO Case No. D2000-1157. Parfums Christian Dior v. Javier Garcia Quintas and C,WIPO Case No. D2000-0226).
The Panel is of the opinion that the Respondent has registered the contested Domain Name with the intent to inhibit the Complainant by using said Domain Name, which is confusingly similar to the Complainant's mark and company name (see Baccarat SA v. Jacques Touroute,WIPO Case No. D2008-0010; Compagnie Gervais Danone v. Sarl Biu,WIPO Case No. D2007-1824. Ladbroke Group Plc v. Sonoma International LDC,WIPO Case No. D2002-0131. Atlantic Recording Corporation v. Paelle International,WIPO Case No. D2001-0065; and Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003).
The Panel finds that even if the contested Domain Name does not resolve to a website or other on-line presence, the Respondent is using it in bad faith. According to several WIPO UDRP decisions “passive holding” of a domain name constitutes use in bad faith (Accor v. Howell Edwin,WIPO Case No. D2005-0980; Ladbroke Group plc v. Sonoma International LDC,WIPO Case No. D2002-0131. Jupiter Limited v. Aaaron Hall,WIPO Case No. D2000-0574. Telstra Corporation Limited v. Nuclear Marshmallows, supra).
As a further indication of bad faith registration, the Respondent used “privacy services” to hide his identity and to be unreachable by the Complainant (Advance Magazine Publishers Inc. d/b/a Condé Nast Publications v. MSA, Inc. and Moniker Privacy Services,WIPO Case No. D2007-1743).
Taken together with the fact that the Respondent has not filed any Response in this proceeding in support of any good faith registration or use, the Panel finds that the Complainant has demonstrated that the contested Domain Name has been registered and used in bad faith. 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.
Nicoletta Colombo
Sole Panelist
Dated: November 19, 2010
Full & Egal Universal Law Academy