The Complainants are CLK Bogaziçi Elektrik Perakende Satis A.S. of Istanbul, Turkey and CLK Enerji Yatirim Anonim Sirketi of Ankara, Turkey, represented by Dericioglu & Yasar Law Office, Turkey.
The Respondent is Ahmet Ozturk of Istanbul, Turkey. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 17, 2016. On January 18, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 19, 2016, 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. On January 19, 2016, the Center was forwarded by the Complainant an informal email communication that the Complainant had received from the Respondent.
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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on January 22, 2016. In accordance with the Rules, paragraph 5, the due date for Response was February 11, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 12, 2016.
The Center appointed Emre Kerim Yardimci as the sole panelist in this matter on February 23, 2016. 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 first Complainant was established on December 13, 2012 and the second Complainant was established on September 10, 2013. Together they form one of the leading groups in the utility sector / electricity distribution sector with retail companies, and wholesale companies, operating in four different regions, 11 cities and with over 10 million customers.
The second Complainant owns the trademark CLK, registered on September 20, 2013 with the registration number 2013/78928. The first Complainant registered the domain name on January 29, 2014. The first Complainant is using the main part of its trade name CLK BOĞAZİÇİ as shown in Annex 3.2. to the Complaint.
The Respondent registered the disputed domain name on September 15, 2015. The Panel visited the disputed domain name on March 16, 2016, and observed that the disputed domain name does not resolve to an active website. 5. Parties’ Contentions A. Complainants
The Complainants claim that the disputed domain name is identical or confusingly similar to the registered trademark CLK. The addition of the word “boğaziçi” - which is a geographical location - does not detract from any similarity and on the contrary, adds to the confusion considering that the Complainants provide services for the distribution of electricity for a certain region with the addition of the term “boğaziçi”.
The Complainants contend that the Respondent has no rights or legitimate interests in the disputed domain name. It has not been authorized or licensed by the Complainants to use the CLK trademark.
The Complainants contend that the Respondent has registered and is using the disputed domain name in bad faith. The Complainants claim that the Respondent had the Complainants’ trademark in mind when registering the disputed domain name and that the Respondent is passively holding the disputed domain name for the purpose of transferring the disputed domain name to the Complainants for valuable consideration in excess of its documented out-of-pocket costs. B. Respondent
The Respondent did not reply to the Complainants’ contentions. 6. Discussion and Findings
According to paragraph 4(a) of the Policy, the Complainants must prove that:
(i) The disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainants have rights; and
(ii) The Respondent has no rights or legitimate interest in respect of the disputed domain name; and
(iii) The disputed domain name has been registered in bad faith and is being used in bad faith. A. Identical or Confusingly Similar
The Panel finds that the disputed domain name is confusingly similar for the purpose of the Policy (see Six Continents Hotels, Inc. v. CredoN / Domain Name for Sale,WIPO Case No. D2005-0755) to the second Complainant’s trademark CLK.
The disputed domain name wholly incorporates the second Complainant’s distinctive trademark CLK and the term “boğaziçi” - meaning “bosphorus” in English - is purely descriptive and only refers to a designation of the geographical location. More importantly, the first Complainant is actively using its trade name CLK BOĞAZİÇİ and it is known as such in the eyes of its customers.
Moreover, considering the sector (i.e., services for the distribution of electricity) within which the Complainants operate, the geographical designation may even enhance the false impression that any services offered under the disputed domain name are officially linked to the Complainants.
For the reasons mentioned above, the Panel finds that the disputed domain name is confusingly similar to the Complainants’ CLK trademark.
The Complainants have thus fulfilled paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
The onus is upon the Complainants to make out a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name and it is then for the Respondent to rebut this case.
The Panel accepts the Complainants’ submissions that the Respondent does not appear to have been known by the disputed domain name, has not made demonstrable preparations to use the disputed domain name and the Respondent is not making a legitimate noncommercial use of the disputed domain name.
The Respondent has not filed a Response. It has no consent from the Complainants to register any domain name incorporating the Complainants’ trademark, it has not used the disputed domain names for a bona fide offering of goods or services given the confusing use, as discussed below, and it is not commonly known by the disputed domain name, nor is it making noncommercial fair use of the disputed domain name.
The current passive holding of the disputed domain name does not give rise to any rights or legitimate interests.
In the Panel’s view the Complainants have made out their prima facie case under this element of the Policy and the Respondent, who is in default, has failed to rebut this case.
In the circumstances of this case, and in view of the Panel’s discussion below, the Panel finds that the second element of the Policy has been established. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy lists a number of circumstances which, without limitation, are deemed to be evidence of the registration and use of a domain name in bad faith. Those circumstances are:
(i) circumstances indicating that [a respondent has] registered or acquired a disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the disputed domain name to the complainant or to a competitor of the complainant, for valuable consideration in excess of [the respondent’s] documented out-of-pocket costs directly related to the disputed domain name; or
(ii) [the respondent has] registered the disputed domain name in order to prevent the complainant from reflecting the complainant’s trademark or service mark in a corresponding domain name, provided that [the respondent has] engaged in a pattern of such conduct; or
(iii) [the respondent has] registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the disputed domain name, [the respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the respondent’s] website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [the respondent’s] website or location or of a product or service on [the respondent’s] website or location.
The Complainants argue that the disputed domain name was registered and used in bad faith. The Complainants claim that the Respondent was well aware of CLK trademark at the time it registered the disputed domain name, as clearly evidenced in Annex 5 submitted with the Compliant.
Annex 5 submitted by the Complainants contains an email sent by the Respondent, on the same day that he registered the disputed domain name, to the Complainants in which the Respondent informs the Complainants that there is a market for domain names in Turkey as well as in the world and he is aware that the Complainants’ have missed the opportunity to register the disputed domain name and that the Complainants may reach out to the Respondent if they wish to discuss the transfer of the disputed domain name. In the same email the Respondent informed the Complainants that third parties had contacted him with regard to the disputed domain name and that other domain names i.e., and are available for registration and that the Respondent reserved these domain names for the Complainants.
From the above behavior of the Respondent, the Panel concludes, without any doubt, that the Respondent has registered the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the disputed domain name to the Complainant or to a competitor of the Complainant, for valuable consideration in excess of the Respondent’s documented out-of-pocket costs directly related to the disputed domain name.
Therefore, in the view of these circumstances, the Panel finds that the requirement of registration and use in bad faith is satisfied, according to the Policy, paragraph 4(b)(i) and 4(a)(iii). 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 CLK Bogaziçi Elektrik Perakende Satis A.S.
Emre Kerim Yardimci
Sole Panelist
Date: March 16, 2016
Full & Egal Universal Law Academy