The Complainant is Turkcell Iletisim Hizmetleri A.S. of Istanbul, Turkey, represented by Istanbul Patent & Trademark Consultancy Ltd., Turkey.
The Respondent is A Ozunlugolu of Paris, France. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with Moniker Online Services, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 3, 2012. On October 4, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On October 4, 2012, the Registrar 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 October 12, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was November 1, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 2, 2012.
The Center appointed William P. Knight as the sole panelist in this matter on November 12, 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. 4. Factual Background
The Domain Name was the subject of proceedings in Turkcell Iletisim Hizmetleri A.S. v. Alan Adi Sahibi Gizli / turk-cell-tv Video Sitesi ibrahim caglayan,WIPO Case No. D2011-2041, involving an unrelated respondent, in which it was found, relevantly, the word “Turkcell” is a trademark of the Complainant with a substantial reputation in Turkey, to which the Domain Name is confusingly similar, the suffix “tv” not serving to create a distinctive or different impression from the dominant component of the Domain Name, that is “turkcell”. The other requirements of the Policy being met in those proceedings, the learned panelist ordered that the Domain Name be transferred to the Complainant. However, the Domain Name lapsed before this ruling was acted upon, and the present Respondent registered the Domain Name on May 27, 2012. The Domain Name is not currently in use. 5. Parties’ Contentions A. Complainant
In accordance with paragraph 4(a) of the UDRP, the Complainant asserts, inter alia, as follows:
(a) that the Domain Name is confusingly similar to the name of the Complainant, which has been in business in Turkey since 1994, and a number of registered trademarks incorporating the word “Turkcell”;
(b) that the Respondent has no rights or legitimate interests in respect of the Domain Name;
(c) that the Domain Name has been registered and is being used in bad faith.
The Complainant’s assertion in respect of (a) is supported, in short, by the facts of the Complainant’s substantial reputation in Turkey, as well as its many registered trademarks mentioned in the Complaint, including a Community Trademark consisting of its own name and a United States trademark TURKCELL device. It is noted that the services of the Complainant include the provision of online/mobile television services by means of its website “www..tr”. The Complainant provides live broadcasting of fifty one television channels, delayed communication of television programs, as well as movies not yet shown on television and rent-a-movie services. TURKCELLTV is a registered trademark of the Complainant and also its variations are the subject of applications for registration before the Turkish Patent Office.
In respect of (b) and (c), the Complainant observes that there is no evidence that the Respondent or his company is commonly known by any word similar to the Domain Name. Clearly, the Domain Name could not be used in Turkey or any country within the range of operations of the Complainant and the Respondent has not himself afforded any explanation of why he should have a legitimate interest in the Domain Name, which is not being used in any event.
The Complainant requests transfer to it of the Domain Name. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
The onus is on the Complainant to prove each of the three elements set out in paragraph 4(a) of the UDRP.
However, the Respondent has had ample opportunity to respond to the allegations of the Complainant and has not done so. The Respondent cannot be in a better position by failing to respond than if he had chosen to take advantage of the opportunities afforded to him, expressly, by paragraph 4(c) of the UDRP.
Paragraph 15(a) of the Rules instructs the Panel to decide a complaint on the basis of the statements and documents submitted in accordance with the UDRP, the Rules and any rules and principles of law that it deems applicable. In the absence of any response from the Respondent, the onus upon the Complainant will be satisfied if a conclusion which is capable of being drawn from the evidence provided by the Complainant is not contradicted by the Respondent; see Alcoholics Anonymous World Services, Inc. v. Lauren Raymond,WIPO Case No. D2000-0007; Ronson Plc v Unimetal Sanayi ve Tic A.S.,WIPO Case No. D2000-0011 among numerous other UDRP decisions. A. Identical or Confusingly Similar
The reputation and trademark rights of the Complainant, and the confusingly similar nature of the Domain Name to the Complainant’s name and marks, have already been ruled upon by the learned panellist in Turkcell Iletisim Hizmetleri A.S. v. Alan Adi Sahibi Gizli / turk-cell-tv Video Sitesi ibrahim caglayan,WIPO Case No. D2011-2041, who is of course familiar with the Turkish marketplace. The Panel does not propose to traverse that decision on these issues, which is in any event amply supported by the evidence put to the Panel by the Complainant in these proceedings.
In view of the above, the Panel finds that the Domain Name is confusingly similar to the Complainant’s trademarks. B. Rights or Legitimate Interests
The Complainant maintains that no licence or other permission has been granted by it to allow the Respondent to register or use the Domain Name.
Given the obvious reference to Turkey in the Domain Name, it is difficult without any explanation from the Respondent to conclude that the Respondent was not aware of the Complainant’s reputation in that country or to infer a legitimate use of the Domain Name by the Respondent. The coincidence between the Domain Name and the name of the Complainant, the nature of its business and its actual trademark registrations would be simply too great to accept that the Domain Name was legitimately and independently decided upon by the Respondent without credible explanation from him.
Furthermore, the fact that no use appears to have been made of the Domain Name since its registration strongly suggests that the Respondent has acquired the Domain Name with no proper business or other interest in it.
In view of the above, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name. C. Registered and Used in Bad Faith
The most difficult to prove of the requirements set out in paragraph 4(a) of the UDRP, in the absence of any use of the Domain Name by the Respondent (especially over the relatively short period since registration as in this case) or any reply to the Complaint, is that the Respondent has registered and is using the Domain Name in bad faith. It is virtually impossible for a complainant to establish the state of mind or intentions of an unknown and remote respondent.
It is the consensus of UDRP panels that lack of active use of the domain name does not as such prevent a finding of bad faith. The panel must examine all the circumstances of the case to determine whether a respondent is acting in bad faith. Examples of circumstances that can indicate bad faith include the complainant having a well-known trademark, no response to the complaint, concealment of identity and the impossibility of conceiving a good faith use of the domain name; see paragraph 3.2 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”) and the decisions there cited.
The Complainant contends that the Respondent registered and used the Domain Name in bad faith, basing the allegation on the following:
1. the Respondent’s likely actual knowledge of the Complainant and its trademarks;
2. the Respondent’s lack of use of the Domain Name.
This is a very slender thread indeed upon which to hang a claim of registration and use in bad faith. The Complainant could have done a good deal more to support a claim of bad faith registration and use but simply assumes that its fame in Turkey, coupled with its Community Trademark and a United States trademark registration will be sufficient to meet this requirement. For example, there has been no effort to suggest that the Respondent’s name is a Turkish name, even, or to provide a reverse domain name search that might have disclosed an interest on the part of the Respondent in a range of other Turkish-related domain names.
However, the Panel finds that, on the scant information before it, the Respondent did register the Domain Name in bad faith. It is possible to speculate as to many legitimate purposes for registering a domain name such as this, but it cannot be denied that the Respondent most likely knew of the Complainant’s trademarks and reputation in the area of telecommunications in Turkey, would appear to have no connection with the Complainant or otherwise with the name “Turkcell”, could not use the Domain Name in respect of any telecommunications services in Turkey, the European Union or the United States without most likely infringing upon the Complainant’s trademark rights, has made no apparent attempt to use the Domain Name in a proper way and has not responded to the allegations of the Complainant. Furthermore, the passive holding of the Domain Name must be regarded as use in bad faith in these circumstances, on the consensus view of UDRP panels. 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 Domain Name be transferred to the Complainant.
William P. Knight
Sole Panelist
Dated: November 14, 2012
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