The Complainant is Turkiye Is Bankasi Anonim Sirketi of Istanbul, Turkey, represented by Grup Ofis Patents & Trademarks Agency Limited, Turkey.
The Respondent is Murat Ozgermi of West Roxbury, Massachusetts, United States of America. 2. The Domain Names and Registrar
The Disputed Domain Names and are registered with GoD, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 5, 2011. On September 5, 2011, the Center transmitted by email to GoD Inc. a request for registrar verification in connection with the Disputed Domain Names. On September 6, 2011, GoD, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant.
The Center verified that the Complaint satisfied the 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 September 12, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was October 2, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 4, 2011.
The Center appointed Dawn Osborne as the sole panelist in this matter on October 14, 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.
The Panel issued a Procedural Order no 1 on October 18, 2011 requiring translation of the Turkish Trade Mark Certificate for NETMATIK and further evidence of use of the mark. As such the Complainant submitted this further evidence requested on October 25, 2011. 4. Factual Background
The Complainant is a Turkish bank and the owner of a Turkish trade mark registration for NETMATIK for bank card devices and financial services. The Respondent has not actively used the Disputed Domain Names 5. Parties’ Contentions A. Complainant The Complainant's contentions can be summarized as follows:
The Complainant is a Turkish bank founded in 1924 with 1,127 domestic branches, 4,137 ATMs and 996 NETMATIK kiosks which have been extensively advertised in newspapers since 1999. The NETMATIK mark is distinctive through use and is also registered as a trade mark in Turkey for bank card devices and financial services.
The Disputed Domain Names are identical to the Complainant's NETMATIK registered trade mark for the purposes of the Policy.
The Disputed Domain Names were registered by the Respondent in 2003, two years after the Complainant obtained registration of its NETMATIK mark in Turkey. The Respondent is a Turkish individual who has a legal address in Turkey as well as the United States of America and works in the IT field demonstrating he is very aware of the Complainant and its mark.
The Respondent is not commonly known by the Disputed Domain Names, has no relationship with the Complainant and has no permission to use the Complainant's trade mark. The Respondent has no trade mark rights in the Disputed Domain Names and has not made bona fide use of them. The Respondent has no rights and legitimate interests in the Disputed Domain Names. The Respondent is a domain name speculator. The Complainant states that there are 75 domain name registrations in the name of “Murat Ozgermi” and that many of them are only used “under automized domain parking services”. Additionally, the Complainant states that 173 domain names appear to be registered in the name of “Murat Ozgermi” or his business entities.
The Respondent is passively holding the Disputed Domain Names to take financial benefit by sale of them in the future which is bad faith registrations and use. The only use is for domain name parking and sponsored links which is bad faith registration and use in itself. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
According to paragraph 4(a) of the Policy, the Complainant must prove that:
- The Disputed Domain Names are identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
- The Respondent has no rights or legitimate interests in respect of the Disputed Domain Names; and
- The Disputed Domain Names have been registered and are being used in bad faith. A. Identical or Confusingly Similar
The Disputed Domain Names consist of the Complainant’s NETMATIK registered mark and the top level domains “.com” and “.net” which are disregarded for the purposes of the Policy. As such the Disputed Domain Names are for the purposes of the Policy identical to a trade mark in which the Complainant has rights. B. Rights or Legitimate Interests
The Respondent has not filed a Response, does not appear to have any trade marks associated with NETMATIK, is not commonly known by this name and does not have any consent from the Complainant to use this name or any connection with the Complainant. The Respondent does not appear to have used the Disputed Domain Names for any bona fide offering of services. Accordingly, the Panel finds that the Respondent does not have any rights or legitimate interests in the Disputed Domain Names. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Rules sets out non-exclusive criteria which shall be evidence of the registration and use of a domain name in bad faith including circumstances where, by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its web site or location or of a product or service on its web site or location (paragraph 4(b)(iv) of the Policy); and where the registrant has registered the domain name in order to prevent a trade mark owner from reflecting its mark in a domain name where there is a pattern of such conduct (paragraph 4(b)(ii) of the Policy).
Bearing in mind that the Respondent appears to be a Turkish individual working in the IT field it is highly likely that he was aware of the Complainant and its NETMATIK trade mark. It does appear that the Respondent has attempted to attract and cause confusion amongst Internet users between the Complainant’s marks and the goods and services offered on the third party links on the site attached to the Disputed Domain Names for commercial gain.
The Complainant states in its Complaint that the registration of the two Disputed Domain Names should be “accepted” as bad faith under paragraph 4(b)(ii). Based on the Panel’s finding of bad faith under paragraph 4(b)(iv) of the Policy, the Panel does not need to address whether there is also bad faith under paragraph 4(b)(ii) of the Policy.
Accordingly, the Panel finds that the Disputed Domain Names have 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 Disputed Domain Names and be transferred to the Complainant.
Dawn Osborne
Sole Panelist
Dated: October 26, 2011
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