The Complainant is TÜRKİYE İŞ BANKASI A.Ş. of Istanbul, Turkey, internally represented.
The Respondent is PrivacyP Domain Admin of Moergestel, Netherlands / Izzet Ferhat Gonenli, Izzet Ferhat Gonenli CID2995 of Mugla, Turkey. 2. The Domain Name and Registrar
The disputed domain name is registered with FBS Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 17, 2010. On December 17, 2010, the Center transmitted by email to FBS Inc. a request for registrar verification in connection with the disputed domain name. On December 20, 21, and 30, 2010, FBS 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 January 5, 2011, 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 January 6, 2011.
On January 5, 2011, the Center issued a Language of Proceeding notification, inviting comment from the parties. The Complainant submitted a request that English be the language of the proceeding on January 6, 2011, and the Respondent submitted a request that Turkish be the language of the proceeding on January 9, 2011. On January 10, 2011, the Center notified the parties of its preliminary decision to 1) accept the Complaint as filed in English; 2) accept a Response in either Turkish or English; and 3) appoint a panel familiar with both languages mentioned above, if available and also advised the parties that the Panel has the authority to determine the language of the proceeding.
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 January 10, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was January 30, 2011. The Respondent requested an extension to file a Response, but did not submit any formal Response.
The Center appointed Kaya Köklü as the sole panelist in this matter on February 10, 2011. 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.
Although the language of the Registration Agreement is in the Turkish language, the Panel determines in accordance with the Complainant’s request and the Rules paragraph 11(a), that the language of these administrative proceedings shall be the English language. The Panel finds that the Respondent will not likely be prejudiced by a decision being rendered in English. This is particularly the case as the Respondent appears capable to write and understand English, as evidenced by his email in the English language sent to the Center on January 9, 2011. 4. Factual Background
The Complainant is one of the leading Turkish banks established in 1924, providing various kinds of financial services since more than 80 years.
As evidenced by Annex 8 to the Complaint, the Complainant is the registered owner of the Turkish word mark CEP ANAHTAR, claiming protection for a large variety of services and goods, including online financial and security services. The Complainant’s trademark has been registered by the Turkish Patent Institute on March 22, 2009.
Furthermore, the Complainant has registered and operates its trademark CEP ANAHTAR as a domain name under the domain name since July 20, 2010.
It is noted that “cep anahtar” is a Turkish term which stands for “mobile key” in the English language.
The original Respondent was PrivacyP Domain Admin, but the registrar FBS Inc. subsequently disclosed that the registrant of the disputed domain name is Izzet Ferhat Gonenli, Izzet Ferhat Gonenli CID2995 from Mugla, Turkey.
Based on the current record, the Respondent has registered the disputed domain name on January 8, 2010. 5. Parties’ Contentions A. Complainant
The Complainant argues that it successfully uses its Turkish trademark CEP ANAHTAR for more than two years. It is alleged that the mark CEP ANAHTAR is used for inter active online banking via mobile phones. The Complainant explains the general features of its CEP ANAHTAR services on its website in the English language as follows:
“Mobile Key is a freeware application; generating “One Time Password” to use in the Personal Interactive Banking and it can be downloaded to mobile phones supporting Java applications. You can increase your security level on your each login in to İşbank Internet Branch by generating a different password with Mobile Key. Even if your personal information is stolen unavoidably, a password generated by your Mobile Key, which is installed on your mobile phone, would be required in order to login in to Internet Branch.”
As a remedy in these administrative proceedings, the Complainant requests transfer of the disputed domain name.
The Complainant argues that the disputed domain name is identical or at least confusingly similar to the Complainant’s trademark CEP ANAHTAR. The Complainant believes that the Respondent deliberately registered the disputed domain being well aware of the Complainant’s trademark rights.
Furthermore, the Complainant asserts that the Respondent has no rights or legitimate interests in the disputed domain name and must have registered and used the disputed domain name in bad faith. In this regard, it is stated that the Complainant has never granted a license, consent or any other right by which the Respondent would have been entitled to register or use the disputed domain name .
In addition, the Complainant believes that the Respondent has never used and does not intend to use the disputed domain name with a bona fide offering of goods or services. The Complainant rather asserts that the disputed domain name was registered for the sole purpose of selling it to the Complainant. In this regard, it is alleged that the Respondent has called the call center of the Complainant and offered the disputed domain name for sale.
Finally, the Complainant has no doubts that the Respondent must have known the Complainant and its trademark CEP ANAHTAR well before the registration of the disputed domain name. B. Respondent
The Respondent did not reply to the Complainant’s contentions.
However, the Center received an informal email communication on January 9, 2011 sent from the email address of the Respondent Izzet Ferhat Gonenli, Izzet Ferhat Gonenli CID2995. This email communication was a response to the Center regarding the language of the proceedings but also contains statements on the merits of the case.
In his email, the Respondent refers to a telephone discussion with representatives of the Complainant, mainly blaming the Complainant not to have started settlement negotiations prior to initiating administrative proceedings with the Center.
By referring to the first-to-file principle, the Respondent asserts to have better rights in the disputed domain name. He argues that he has registered the disputed domain name prior to the registration of the Complainant’s domain name .
Furthermore, it is alleged that the disputed domain name is used in good faith without any intention to insult or harm the Complainant’s reputation. 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 is obliged to prove that each of the three following elements is satisfied:
(i) The disputed 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 disputed domain name; and
(iii) The disputed domain name has been registered and been 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 (see Stanworth Development Limited v. E Net Marketing Ltd., WIPO Case No. D2007-1228).
To begin with, the Panel finds that the Respondent’s informal email communication received by the Center on January 9, 2011 does not qualify to be a formal Response to the Complaint and mainly refers to the language of the proceedings. However, it contains some argumentation on the merits of the case. The Panel is of the opinion that there does not need to be a decision whether this email communication should be considered in the present case as the information provided would not affect the outcome of the case anyhow.
Concerning any uncontested information provided by the Complainant, the Panel may appropriately accept the provided reasonable factual allegations in the Complaint as true (see Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110).
In this regard it is noted that an independent research, by visiting the Internet site linked to the disputed domain name, has been performed by the Panel on February 23, 2011. The competence of the Panel to perform such independent research is in line with previous UDRP decisions (see, 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 trademark CEP ANAHTAR.
First, the Panel confirms that the Complainant has satisfied the threshold requirement of having trademark rights regarding its sign CEP ANAHTAR. The Complainant has provided evidence showing that it is the registered owner of the word mark CEP ANAHTAR in Turkey, where the Respondent is apparently located.
Second, there is a confusing similarity between the Complainant’s mark CEP ANAHTAR and the disputed domain name as the disputed domain name fully incorporates the Complainant’s trademark CEP ANAHTAR.
The disputed domain name only differs from the respective trademark by the missing space character between CEP and ANAHTAR.
In the Panel’s view, the missing space character between CEP and ANAHTAR does not negate the confusing similarity between the Complainant’s trademark and the disputed domain name as it is customary to compile words without space character in domain names.
Hence, the Panel finds that the disputed domain name which wholly incorporates the Complainant’s registered trademark CEP ANAHTAR is sufficient to establish confusing similarity for the purpose of the Policy (see Kabushiki Kaisha Hitachi Seisakusho (d/b/a Hitachi Ltd) v. Arthur Wrangle,WIPO Case No. D2005-1105).
Given the findings above, the Panel concludes that the first requirement under paragraph 4(a) of the Policy is fulfilled. B. Rights or Legitimate Interests
The Panel further believes that the Respondent has not demonstrated any rights or legitimate interests in the disputed domain name.
While the burden of proof in principle remains with the Complainant, the Panel recognized that this would result in the impossible task of proving a negative, in particular as the evidence needed to show the Respondent’s lack of rights or legitimate interests is primarily within the knowledge and sphere of the Respondent. Therefore, the Panel agrees in line with prior UDRP panels that the Complainant is required to make out a prima facie case before the responsibility shifts to the Respondent to show that it has rights or legitimate interests in the disputed domain name in order to meet the requirements in paragraph 4(a)(ii) of the Policy (see Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455).
The Panel finds that the Complainant has satisfied this requirement by providing uncontested prima facie evidence that the Respondent has no trademark, license or any similar right to use the Complainant’s mark in the disputed domain name.
The Respondent has failed to file any evidence or convincing arguments to demonstrate a right or legitimate interest or any other evidence of a right or legitimate interest in the disputed domain name according to the Policy, paragraphs 4(a)(ii) and 4(c).
In particular, the Respondent has failed to show that the disputed domain name has been used in connection with a bona fide offering of goods or services. The Respondent’s allegation to have priority rights in the disputed domain name due to a prior registration in relation to the Complainant’s domain name is not convincing. It is in fact true that the Respondent has registered the disputed domain name on January 8, 2010. However, a legitimate interest as alleged by the Respondent does not arise if at the time of the domain name registration there was already an existing confusingly similar trademark registration which the domain name seeks to take advantage of. In the present case, the Complainant is the registered owner of a confusingly similar Turkish word mark with a registration date in July 2009, i.e., well before the Respondent applied for the registration of the disputed domain name. Due to these facts, the Panel concludes that the Respondent cannot claim any legitimate interests based solely in priority in the disputed domain name.
Furthermore, there is also no indication in the case file that the Respondent is commonly known by the disputed domain name. On the contrary, when the Panel visited the Internet site linked to the disputed domain name, there was no editorial content provided. The relevant Internet site was rather arranged by pay-per-click advertisements and sponsored links to products or services offered by various companies. Based on these findings, the Panel believes that the Respondent does not make a legitimate noncommercial or fair use of the disputed domain names without the intent for commercial gain to misleadingly divert users or to tarnish the CEP ANAHTAR trademark.
Hence, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
The Panel is further of the opinion that the Respondent has registered and used the disputed domain name in bad faith.
First, the Panel is convinced that the Respondent was well aware of the Complainant’s trademark rights when registering the disputed domain name. This is apparently the case as the disputed domain name was registered after the Complainant registered and used its trademark CEP ANAHTAR in Turkey. As the Respondent seems to be located in Turkey, the Panel does not find it likely that the Respondent did not know the Complainant’s trademark when registering the disputed domain name.
In the Panel’s view, it appears that the Respondent has registered and used the disputed domain name for the main purpose of creating an association with the Complainant, in particular with its security services for online banking operated under the domain name . This assessment is supported by the fact that the Respondent operates a website linked to the disputed domain name which is apparently established in order to generate pay-per-click advertising revenue by mislead users.
Additionally, the Complainant provided uncontested and convincing evidence material stating that the Respondent has tried to sell the disputed domain name to the Complainant (Annex 13 to the Complaint), which creates an even stronger indication for bad faith registration and use of the disputed domain name.
Furthermore, it is noted that the disputed domain name has been registered via ProtectP of the Netherlands, a corporation which seems to register domain names on behalf of third parties without initially disclosing the real identity of the registrants. The Panel finds that this has been done by the Respondent intentionally in order to keep in hiding and to place the domain name out of reach of the Complainant.
In the light of the above, the Panel concludes that the disputed domain name was registered and is being used in bad faith and that the Complainant has also 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 domain name be transferred to the Complainant.
Kaya Köklü
Sole Panelist
Dated: February 24, 2011
Full & Egal Universal Law Academy