The Complainant is Akbank Turk A.S. of Istanbul, Turkey represented by Istanbul Patent & Trademark Consultancy Ltd., Turkey.
The Respondent is Bahadir Gezer of Istanbul, Turkey. 2. The Domain Names and Registrar
The disputed domain names and are registered with GoD, LLC (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on September 5, 2016. On September 6, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On September 7, 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.
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 September 9, 2016. In accordance with the Rules, paragraph 5, the due date for Response was September 29, 2016. Respondent sent an informal email communication to the Center on September 19, 2016. The Respondent resent the communication of September 19, 2016 to the Center on September 30, 2016. The Respondent did not file a formal Response.
The Center appointed Selma Ünlü as the sole panelist in this matter on October 5, 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 Complainant in this administrative proceeding, Akbank Turk A.S. having a number of subsidiaries with a long-standing past, is one of the Turkey's leading private banks and is active in banking activities in addition to many other fields such as retail, commercial, corporate and international trade finance services since 1947.
The Complainant owns the registered trademarks AKBANK in several classes in jurisditctions around the world, as well as in Turkey.
According to the Panel's examination of the trademark registrations of the Complainant on October 10, 2016, it has been noted that the Complainant has the trademark registration No. 96/009204 before the Turkish Patent Institute consisting of the AKBANK trademark as its very first registration in Turkey dating back to June 24, 1996.
The disputed domain names were both accessible on the date of October 10, 2016, resolving to websites inviting the visitors to contact the Respondent in order to get information relating to "property rights" in the disputed domain names. The disputed domain name previously resolved to a registrar parking page.
The disputed domain names and were registered on August 16, 2016 and August 4, 2016 respectively. 5. Parties' Contentions A. Complainant
Pursuant to paragraph 4(i) of the Policy, the Complainant requests the disputed domain names to be transferred to the Complainant. The Complainant submits the grounds for these proceedings listed in paragraph 4(a) of the Policy.
In summary, the Complainant contends the following: Confusingly Similar
The Complainant states that it owns the registered and well-known trademark AKBANK and that the subject trademark is the most valuable banking brand in Turkey according to Brand Finance Report of "Brand Finance Banking 500". The Complainant is one of the largest private companies of Turkey, operating all over the country and also in many other countries.
The Complainant asserts that the disputed domain names comprise of the trademark AKBANK without any additional word. The generic Top-Level Domains ("gTLDs") ".money" and ".business" are not taken into account for the purposes of the Complaint. Rights or Legitimate Interests
The Complainant alleges that the Respondent is not and has never been one of the Complainant's licensees, nor is he otherwise authorized to use the Complainant's mark. The Respondent does not have any rights or legitimate interests in the disputed domain names. The Respondent is not using the disputed domain names in connection with any legitimate, noncommercial or fair use, nor is the Respondent commonly known by the disputed domain names.
The Complainant further argues that the Respondent is not using the disputed domain names in connection with bona fide offering of goods or services. Registered and Used in Bad Faith
The Complainant argues that the disputed domain names have been registered in bad faith. The Complainant contends that the trademark AKBANK is a well-known mark throughout the world including in Turkey. It further claims that the Respondent must have been aware of the Complainant and its marks at the time that he registered the disputed domain names incorporating the Complainant's marks. Complainant claims that Respondent could not make any actual use of the disputed domain names without infringing Complainant's rights. B. Respondent
The Respondent did not submit any formal Response to the contentions raised in the Complaint but has merely sent two emails to the Center. In the first email dated September 19, 2016, the Respondent claimed that "AKBANK" may not be monopolized by the Complainant and therefore, that the Complaint is groundless. On September 30, 2016, the Respondent has resent his initial response email. 6. Discussion and Findings
According to paragraph 15(a) of the Rules, the Panel shall decide the Complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
In accordance with paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements is satisfied:
(i) The disputed domain names are 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 in respect of the disputed domain names; and
(iii) The disputed domain names have been registered and are being used in bad faith.
Paragraph 4(a) of the Policy states that the Complainant has the burden of proving that all these requirements are fulfilled. A. Identical or Confusingly Similar
The Policy simply requires the Complainant to demonstrate that the disputed domain names are identical or confusingly similar to a trademark in which the Complainant has rights. The Panel is satisfied that the Complainant is the owner of several registrations for the trademark AKBANK.
The Panel finds that the gTLDs ".money" and ".business" are irrelevant when determining whether the disputed domain names are identical or confusingly similar to the Complainant's trademark (PRL USA Holdings, Inc. v. Spiral Matrix,WIPO Case No. D2006-0189). It has been stated in several previous UDRP decisions that the incorporation of a trademark in its entirety into a domain name may be sufficient to establish that the domain name is identical or confusingly similar to a registered trademark.
The Panel recognizes the Complainant's rights and concludes that the disputed domain names are identical with the Complainant's AKBANK trademarks. Therefore, the Panel concludes that the requirements of paragraph 4(a)(i) of the Policy are met. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy states that a respondent may establish its rights or legitimate interests in a domain name, among other circumstances, by showing any of the following elements:
(i) before any notice to you [the Respondent] of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you [the Respondent] (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you [the Respondent] are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The burden is on the Complainant to demonstrate a prima facie case that the Respondent does not have rights or legitimate interests in the disputed domain names. Once the Complainant has made out a prima facie case, then the Respondent may, inter alia, by showing one of the above circumstances, demonstrate rights or legitimate interests in the disputed domain names.
In light of the evidence in the available record, notably that the Complainant has not granted the Respondent any right or license to use the AKBANK trademarks, the Panel finds that the Complainant has established a prima facie case that the Respondent does not have rights or legitimate interests in the disputed domain names for the purposes of the Policy.
Hence, as the Complainant has made out its prima facie case, and as the Respondent has not submitted any evidence to rebut the Complainant's allegations, or otherwise demonstrated any rights or legitimate interests as illustrated under paragraph 4(c) of the Policy, nor has the Panel found any other basis for finding any rights or legitimate interests of the Respondent in the disputed domain names, the Panel concludes that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
Finally, the Complainant must show that the disputed domain names have been registered and are being used in bad faith under paragraph 4(a)(iii) of the Policy.
Paragraph 4(b) of the Policy provides a non-exhaustive list of circumstances that, if found by a panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent's documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the 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 domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the 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.
By consideration of the foregoing, the Panel is of the opinion that due to the earlier rights of the Complainant in the trademark AKBANK, as well as its extensive and intensive usage, the Respondent, also being located in Turkey, was aware of the Complainant and its AKBANK trademark at the time of registration of the disputed domain names. See, e.g., Ebay Inc. v. Wangming,WIPO Case No. D2006-1107; General Electric Company v. CPIC NET and Hussain Syed,WIPO Case No. D2001-0087; Parfums Christian Dior v. Javier Garcia Quintas and C,WIPO Case No. D2000-0226. The Panel believes that the awareness of the Complainant's trademark at the time of the registration of the disputed domain names is to be considered an inference of registration in bad faith.
The Panel is of the opinion that Internet users will fall into the false impression that the disputed domain names are official domain names of the Complainant. Moreover, the Panel notes that the websites at the disputed domain names included the text "For the property rights of this page, please contact the info below" followed by the name and contact information of the Respondent. The Panel evaluates this content as an indication that the Respondent likely registered the disputed domain names for the purpose of attempting to sell the disputed domain names to the Complainant for an amount in excess of its out-of-pocket costs associated with the disputed domain names. Moreover, the Panel accepts the Complainant's contention that it is not possible to imagine any bona fide use of the disputed domain names by the Respondent that would not interfere with the Complainant's rights in its AKBANK mark.
Therefore, in light of the above-mentioned circumstances in the present case, the Panel finds that the disputed domain names have been registered and are being used in bad faith and that the Complainant has established the third element under paragraph 4(a)(iii) of the Policy. 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.
Selma Ünlü
Sole Panelist
Date: October 17, 2016
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