The Complainant is Beşiktaş Jimnastik Kulübü Derneği of Istanbul, Turkey, represented by Ozyildirim, Turkey.
The Respondent is Trademark Management of Seoul, Republic of Korea. 2. The Domain Name and Registrar
The disputed domain name is registered with INames corp. (Korea). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 25, 2012. On June 25, 2012, the Center transmitted by email to INames corp. (Korea) a request for registrar verification in connection with the disputed domain name. On June 26, 2012, INames corp. (Korea) 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”).
On June 27, 2012, the Center notified the parties in both English and Korean that the language of the Registration Agreement in this case was Korean. On June 28, 2012, the Complainant sent an email requesting English or Turkish to be the language of the proceedings. On July 2 and 4, 2012, the Respondent submitted a request for Korean to be the language of the proceedings.
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 July 4, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was July 24, 2012. The Respondent did not submit any formal response. Accordingly, the Center notified the Respondent’s default on July 25, 2012.
The Center appointed Ik-Hyun Seo as the sole panelist in this matter on July 30, 2012. 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 Complainant submitted a supplemental filing on August 1, 2012. As there have been no exceptional circumstances in this case to warrant the submission of the supplemental filing, the Panel will not consider it in the below discussion and findings.
Based on the deadline set forth in paragraph 15 of the Rules, a decision was to be issued by the Panel no later than August 13, 2012. However, due to exceptional circumstances experienced by the Panel, the Panel extended the deadline to August 27, 2012. 4. Factual Background
The Complainant is a professional Turkish sports club that was established in 1903. The Complainant competes in a number of sports including basketball, volleyball, boxing and wrestling, and its soccer team is among the major soccer teams in Turkey.
The Respondent appears to be a Korean entity with an address in the Republic of Korea. 5. Parties’ Contentions A. Complainant
The Complainant contends that the disputed domain name is identical to or confusingly similar to marks in which the Complainant has rights. Namely, the Complainant has a trademark registration for the mark KARTAL YUVASI, as well as a family of marks that include the term “kartal” in Turkey. Further, the Complainant owns the registration to the domain name where it operates its official online store and sells licensed products to club supporters.
The Complainant also contends that the Respondent has no rights or legitimate interests in the disputed domain name, and confirms that it has not authorized or licensed rights to the Respondent in any respect.
Finally, the Complainant contends that the disputed domain name was registered and is being used in bad faith. Specifically, the Respondent claimed on the website at the disputed domain name that it was the official website of the Complainant and used the disputed domain name for a domain parking website for goods and services related to soccer. This shows that the Respondent sought to obtain profit from the confusion of visitors. B. Respondent
The Respondent did not formally reply to the Complainant’s contentions. 6. Discussion and Findings A. Language of the Proceeding
Paragraph 11(a) of the Rules provides that the language of the proceeding shall be the language of the registration agreement, unless otherwise agreed to by the parties, subject to the authority of the panel to determine otherwise. In this case, the language of the Registration Agreement is Korean, and both parties have had an opportunity to argue their position on this point. The Center issued a notice stating that it would accept the Complaint filed in English, and that the Response would be accepted in either Korean or English. The Respondent eventually chose to not file a formal Response.
First, the Panel notes that English does not appear to be the mother language of either party. Given the fact that the Complainant is based in Turkey and the Respondent is based in the Republic of Korea, English would appear to be the fairest neutral language for rendering this decision. Besides, both parties were given the opportunity to submit arguments in the language of their preference, and the language in which to render the decision is reserved for the Panel in accordance with paragraph 11 of the Rules. The Panel notes that all of the Center’s communications have been transmitted to the parties in both English and Korean. Though the Respondent claimed that it has great difficulties with the English language, Panel finds this is not credible under the circumstances of this case. The Panel notes that the contents of the website at the disputed domain name were entirely in English and Turkish. Further, the Respondent made an offer for sale of the domain name (“Domain for Sale – make an offer $”) on the website in English, which should be viewed as the Respondent’s willingness and ability to communicate in English.
Under these circumstances, the Panel finds it proper and fair to render this decision in English in this case. B. Identical or Confusingly Similar
The Complainant has demonstrated with supporting evidence that it holds a trademark registration in the term “kartal yuvasi” (Turkish Registration No. 2007 14715 – Ticaret – Hizmet) which means “eagle’s nest” in Turkish, as well as a number of marks that include the term “kartal” (Turkish Registration Nos. 2007 37104 – Hizmet, 164236, 2004 30879 – Ticaret – Hizmet, 2007 37103 - Hizmet) in Turkey which pre-date the registration of the disputed domain name. The Panel finds the dominant textual component of the Complainant’s “kartal yuvasi” mark to be included in its entirety in the disputed domain name. Therefore, there is no question to this Panel as to the issue of confusing similarity regarding the disputed domain name.
For the reasons mentioned above, the Panel finds that the first element has been established. C. Rights or Legitimate Interests
On the basis of the present record, the Panel finds that the Complainant has made the required allegations to support a prima facie showing that the Respondent has no rights or legitimate interests in the disputed domain name. Once such a prima facie basis has been established, the Respondent carries the burden of demonstrating its rights or legitimate interests in the disputed domain name. However, the Respondent in this case has chosen to file no Response to these assertions by the Complainant, and there is no evidence or allegation in the records that would warrant a finding in favor of the Respondent on this point.
For the reasons provided above, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name, and that the second element has been established. D. Registered and Used in Bad Faith
The Panel finds that there are more than sufficient reasons to find bad faith registration and use of the disputed domain name in this case. On the website at the disputed domain name, the Respondent stated in Turkish that it is the official website of the Complainant – a patently false statement. Further, the disputed domain name was used with a domain parking service and provided links to products and services related to soccer; the Complainant has one of the major soccer teams in Turkey. This clearly shows that the Respondent was well aware of the Complainant and the Complainant’s main goods and services from the time the disputed domain name was originally registered, and intended to improperly obtain profit by misleading visitors as to the relationship between the disputed domain name and the Complainant. Further, there is no evidence of any history of bona fide use or related preparations on behalf of the Respondent. Rather, a message on the website at the disputed domain name indicated that it was available for sale.
For the reasons given above, the Panel finds that it is clear that this third and final element has been established. 7. Decision
For 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.
Ik-Hyun Seo
Sole Panelist
Dated: August 29, 2012
Full & Egal Universal Law Academy