The Complainant is Istanbul Menkul Kiymetler Borsasi-IMKB (Istanbul Stock Exchange-ISE) of Istanbul, Turkey, represented internally.
The Respondent is Emir Ulu of Kayseri, Turkey. 2. The Domain Name and Registrar
The disputed domain names and are registered with PSI-USA, Inc. dba Domain Robot (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 4, 2013. On February 4, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On February 5, 2013, 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 February 15, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was March 7, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 8, 2013.
The Center appointed Dilek Ustun Ekdial as the sole panelist in this matter on March 20, 2013. 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 is a public legal entity which acts independently under its own responsibility and is supervised and monitored by the Capital Markets Board which was founded as an autonomous, professional organization in December 26, 1985.
It is the only corporation in Turkey for securities exchange established to provide trading in equities, bonds and bills, revenue-sharing certificates, private sector bonds, foreign securities and real estate certificates as well as international securities.
Capital Markets of Law No. 6362 of Turkey, which entered into force on December 30, 2012, provides for the termination of the legal entity of Istanbul Menkul Kıymetler Borsası and incorporation of a new company named “Borsa Istanbul” which is to operate as the successor of the Istanbul Menkul Kıymetler Borsası by law.
According to the Registrar, the disputed domain names were transferred to the Respondent on June 13, 2005. 5. Parties’ Contentions A. Complainant
The Complainant has Turkish and international trademark registrations for the trademarks İSTANBUL MENKUL KIYMETLER BORSASI (International registration No. 967259 registered on September 20, 2007) and ISTANBUL STOCK EXCHANGE (International registration No. 966305 registered on September 20, 2007).
The Complainant has also applied for trademark registration for the names “Borsa İstanbul” and “İstanbul Borsası” before the Turkish Patent Institute.
In relation to element (i) of paragraph 4(a) of the Policy, the Complainant contends that the disputed domain names are either identical or confusingly similar to the trademarks İSTANBUL BORSASI, İSTANBUL MENKUL KIYMETLER BORSASI, BORSA İSTANBUL.
The Complainant contends that it has not licensed or otherwise permitted the Respondent to use its trademarks, nor have they licensed or otherwise permitted the Respondent to apply for or use any domain name incorporating those trademarks. In addition, the Complainant contends that the Respondent has not traded at all under the name “İstanbul Borsası” nor “Borsa İstanbul” and that, in light of the reputation of the Complainant has in association with securities exchange activities in Turkey, the Respondent can not lawfully make use of the words comprising the disputed domain names in Turkey or elsewhere..
The Complainant contends that its trademarks are one of the most well-known trademarks in Turkey and have substantial and increasing prominence internationally. Because of that the Complainant’s trademarks, and the business carried on by reference to them, receive frequent media attention and are heavily referred to through all forms of media on a daily basis, it is inconceivable that the person or persons behind the Respondent, which is located in Turkey, would not be aware of this.
The Complainant also stated that the Respondent is the owner of over 250 domain names and that he was ordered to transfer domain names incorporating (well-known) trademarks in several WIPO UDRP cases. The Complainant adds that the Respondent has offered the disputed domain names for auction. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy requires that a complainant prove each of the following three elements to obtain a decision that a domain name should be either cancelled or transferred:
(i) the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) the respondent has no rights or legitimate interests with respect to the domain name; and
(iii) the domain name has been registered and is being used in bad faith A. Identity or Confusing Similarity
The Complainant has international trademark registrations for İSTANBUL MENKUL KIYMETLER BORSASI and ISTANBUL STOCK EXCHANGE, as evidenced in Annex 7 to the Complaint.
The Complainant has also applied for trademark registration for BORSA İSTANBUL and İSTANBUL BORSASI before the Turkish Patent Institute.
It is clear that the Policy is not limited to registered marks; unregistered, or common law marks are sufficient for the purposes of paragraph 4(a)(i). The Complainant provided detailed evidence to establish that it provides services under the names İstanbul Borsasi and Borsa İstanbul that it has a reputation in the services provided under those names such that members of the public would associate services provided under those names with the Complainant and not with others not authorised by the Complainant to use them. Accordingly, the Complainant has established to the satisfaction of the Panel that in addition to the registered trademarks referred to above, it also has unregistered trademark rights in İSTANBUL BORSASI and BORSA İSTANBUL.
The disputed domain names consist of the Complainant’s trademark İSTANBUL BORSA or BORSA İSTANBUL inverted and followed by the generic top-level domain (gTLD) identifier “.com”. The only difference between the Complainant’s trademark BORSA İSTANBUL and the disputed domain names is that the terms have been inverted and a gTLD identifier has been added. To a certain extent the Panel finds that the disputed domain names also share some important similarities with the Complainant’s trademark İSTANBUL MENKUL KIYMETLER BORSASI.
As a result, the Panel finds that the disputed domain names are confusingly similar to the Complainants’ service marks. B. Rights or Legitimate Interests
The Respondent has not provided evidence of, or even asserted the existence of, circumstances of the type specified in paragraphs 4(c)(i), (ii) and (iii) of the Policy, being circumstances which demonstrate a right or legitimate interest in the disputed domain names.
The Panel finds that the Respondent has no rights or legitimate interests in the disputed domain names, because there is no evidence in the case record that the disputed domain names bear a relationship with any legitimate business or other activity of the Respondent, because the disputed domain names are not one that the Respondent, in the context of provision of goods, services or information via a website, would use unless seeking to create a false impression of an association with the Complainant, in light of the reputation of the Complainant has in association with securities exchange activities in Turkey, the Respondent can not lawfully make use of the words comprising the disputed domain names in Turkey. C. Registration and Use in Bad Faith
Paragraph 4(b) of the Policy provides a list of indicative circumstances that, if found by the Panel to be present, shall be evidence of bad faith registration and use, however, such list is not exhaustive and a finding of bad faith depends on the circumstances of each case. See Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003.
Paragraph 4(b)(ii) of the Policy provides that registration of a domain name in order to prevent the owner of a trademark or service mark from reflecting the mark in a corresponding domain name is evidence of bad faith registration and use of the domain name, so long as the registrant has engaged in a pattern of such conduct. The Respondent’s registration of the disputed domain names prevents the Complainant from reflecting its service marks in a corresponding domain names, and the Respondent has been involved in a number of UDRP cases in the past where the domain names were transferred.
The Panel considers it an inescapable conclusion from the undisputed facts and circumstances reflected in the record that the Respondent must have known of and had in mind the Complainant’s marks when registering the disputed domain names. See generally Ticketmaster Corporation v. Spider Web Design, Inc.,WIPO Case No. D2000-1551. As noted in Research In Motion Limited v. Dustin Picov,WIPO Case No. D2001-0492, when a domain name is so obviously connected with a complainant, the very use of the domain name by a registrant with no connection to the complainant suggests “opportunistic bad faith”. See also Paule Ka v. Paula Korenek,WIPO Case No. D2003-0453. In view of the foregoing, the Panel can ascribe no motive for the Respondent’s registration and use of the Domain Name as reflected in the record except to trade on the goodwill associated with the Complainant’s mark.
The Respondent’s bad faith is also shown by its use of the disputed domain names (or lack thereof). The disputed domain names do not appear to resolve to an active websites, in addition the Respondent has made auction sale related with the disputed domain name and given the circumstances of this case, the Panel finds that this is further evidence of bad faith. 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 names and be transferred to the Complainant.
Dilek Ustun Ekdial
Sole Panelist
Date: April 4, 2013
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