The Complainant is Akçansa Çimento Sanayi ve Ticaret Anonim Şirketi of Istanbul, Turkey, represented by BTS & Partners, Turkey.
The Respondent is Moniker Privacy Services of Fort Lauderdale, Florida, United States of America ("United States") / Fatih Avcı of Izmir, Turkey. 2. The Domain Name and Registrar
The disputed 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 17, 2016. On October 17, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 18, 2016, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on October 19, 2016 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on October 26, 2016.
The Center verified that the Complaint together with the amended 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 October 27, 2016. In accordance with the Rules, paragraph 5, the due date for Response was November 16, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on November 18, 2016.
The Center appointed Gökhan Gökçe as the sole panelist in this matter on November 22, 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.
In accordance with the Rules, paragraph 11(a), and since the parties have not agreed otherwise, the Panel finds that the language of the administrative proceedings is the language of the Registration Agreement, i.e., English. 4. Factual Background
The Complainant, Akçansa Çimento Sanayi ve Ticaret A.Ş., was founded in 1996 and has been operating in the Marmara, Aegean, and Black Sea regions of Turkey. The Complainant produces cement and clinker in its three factories in Turkey. The Complainant is a leading company in the Turkish cement industry, meets 10% of Turkey's cement need as well as 12,5% of Turkey's total cement and clinker export.
The Complainant is the owner of various registered trademarks including AKÇANSA CBR SA which was first registered on March 26, 1997 with the Turkish Patent Institute. The Complainant also uses the domain name , which it registered on September 25, 1997.
The Respondent registered the disputed domain name on December 29, 2012.
The Panel visited the disputed domain name on December 2, 2016, and observed that the disputed domain name was inactive, thus there was no content provided. The website at the disputed domain name showed the following content: "This page cannot be displayed." 5. Parties' Contentions A. Complainant
In accordance with the Policy, the Complainant requests that the disputed domain name be transferred to the Complainant. The Complainant submits the grounds for these proceedings listed in paragraph 4(a) of the Policy.
(i) Identical or Confusingly Similar
The Complainant asserts that the disputed domain name comprises the term "akcansa" which is identical to the distinctive element of its registered trademark AKÇANSA CBR SA. "Akcansa" is also the pilot component of the Complainant's trade name. The Complainant asserts that the addition of the generic Top-Level Domain ("gTLD") ".com" does not have an impact on the overall impression of the dominant part of the disputed domain name and does not exclude the confusing similarity.
(ii) Rights or Legitimate Interests
The Complainant submits that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant has never granted the Respondent a license or permission to use the mark AKÇANSA CBR SA the Respondent has no association with the Complainant and the Respondent has never been commonly known by the disputed domain name.
The Complainant notes the disputed domain name does not resolve to a website and displays an error message as evidenced in Annex 5 of the Complaint.
The Complainant asserts that the Respondent has no rights or legitimate interests in the disputed domain as it has no trademark registration with the Turkish Patent Institute for "Akçansa".
As evidenced in Annex 1 of the Complaint, the Complainant states that the registration date of the disputed name domain name is December 29, 2012. Since the registration of the trademark AKÇANSA CBR SA predates the registration of the disputed domain name, the Respondent has no prior rights or legitimate interests in the disputed domain name.
(iii) Registration and Use in Bad Faith
The Complainant indicates that the disputed domain name has been registered in bad faith. The Complainant contends that the trademark AKÇANSA CBR SA is a well-known trademark in Turkey. In addition to this, the Complainant states that "Akçansa" does not have a meaning in itself, and the term is only used by the Complainant which simply proves that the Respondent knew the trademark rights of the Complainant.
Further, the Complainant emphasizes the disputed domain name has been passively held. And the current status of "being a passive / inactive domain name" does not remove the infringement as determined by many previous UDRP decisions stating that passive holding of a well-known trademark may also constitute bad faith. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
According to paragraph 14(a) and 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 and on the basis of the Complaint where no Response has been submitted.
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 name is identical or confusingly similar to a trademark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
Paragraph 4(a) of the Policy states that the Complainant bears the burden of proving that all these requirements are fulfilled, even if the Respondent has not replied to the Complaint. Stanworth Development Limited v. E Net Marketing Ltd.,WIPO Case No. D2007-1228.
However, concerning the uncontested information provided by the Complainant, the Panel may, where relevant, accept the provided reasonable factual allegations in the Complaint as true. Belupo d.d. v. WACHEM d.o.o.,WIPO Case No. D2004-0110.
It is further noted that the Panel has taken note of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0") and, where appropriate, will decide consistent with the WIPO Overview 2.0. A. Identical or Confusingly Similar
The Panel finds that the disputed domain name is identical to the distinctive element "Akçansa" of the Complainant's trademark AKÇANSA CBR SA.
First, the Panel confirms that the Complainant has satisfied the threshold requirement of having trademark rights. As evidenced in the Complaint, the Complainant has been the owner of various trademarks incorporating the term "Akçansa" since 1997.
In relation to the disputed domain name, it is clear that the disputed domain name incorporates the distinctive element "Akçansa" of the Complainant's trademark AKÇANSA CBR SA with the letter "ç" used without cedilla. In the Panel's opinion, such use of the letter "ç" without cedilla in the disputed domain name does not render the latter visually distinctive of the Complainant's trademark. The disputed domain name is identical to the distinctive element "Akçansa" of the Complainant's trademark AKÇANSA CBR SA it incorporates the said distinctive element in its entirety without any additions or amendments. It has been stated in several decisions by other UDRP administrative panels that incorporating a trademark in its entirety into a domain name can be sufficient to establish that the domain name is identical or confusingly similar to a registered trademark. Bayerische Motoren Werke AG, Sauber Motorsport AG, supra; Thaigem Global Marketing Limited v. Sanchai Aree,WIPO Case No. D2002-0358; Toyota France and Toyota Motor Corporation v. Computer-Brain,WIPO Case No. D2002-0002.
In the Panel's view, the mere addition of the gTLD ".com" has no distinguishing effect and is generally not to be considered when assessing identity or confusing similarity between a domain name and a trademark (in line with prior UDRP panels concerning the use of a gTLD within a disputed domain name, cf. V&S Vin & Sprit AB v. Ooar Supplies,WIPO Case No. D2004-0962; Google Inc. v. Nijat Hassanov,WIPO Case No. D2011-1054).
In view of the above, the Panel is satisfied that the Complainant has met the requirements under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
The Panel further finds that in the absence of a Response, the Respondent has failed to demonstrate any rights or legitimate interests in the disputed domain name.
While the burden of proof remains with the Complainant, the Panel recognizes that this would often result in the impossible task of proving a negative, in particular as the evidence needed to show the Respondent's lack of rights or legitimate interests is primarily within the knowledge of the Respondent. Therefore, the Panel agrees with prior UDRP panels that the Complainant is required to make out a prima facie case before the burden of production of evidence shifts to the Respondent to show that it has rights or legitimate interests in the disputed domain name in order to meet the requirements of paragraph 4(a)(ii) of the Policy. Document Technologies, Inc. v. International Electronic Communications Inc.,WIPO Case No. D2000-0270 and paragraph 2.1 of the WIPO Overview 2.0.
In the light of the evidence submitted by the Complainant, and the Panel's researches, e.g., trademark registration certificates, domain name registrations, etc., it is clear to the Panel that the Complainant has earlier and lawful rights in the AKÇANSA CBR SA trademark. Therefore, the Panel finds on the current record that the Complainant has proved rights in the AKÇANSA CBR SA trademark and also established a prima facie case that the Respondent does not have rights or legitimate interests in the disputed domain name for the purposes of the Policy. The Complainant has not granted the Respondent any right or license to use the AKÇANSA CBR SA trademark. Therefore, in the absence of any license or permission from the Complainant to use any of its trademarks or to apply for or use any domain name incorporating those trademarks, it is clear that no actual or contemplated bona fide or legitimate use of the disputed domain name could be claimed by the Respondent. Guerlain S.A. v. Peikang,WIPO Case No. D2000-0055.
The Panel visited the disputed domain name on December 2, 2016 and found that the disputed domain name does not resolve to a website. Therefore, the Panel finds that the Respondent is not making use of the disputed domain name in connection with a bona fide offering of goods or services or making a legitimate noncommercial or fair use of the disputed domain name.
The requirements of 4(a)(ii) of the Policy are fulfilled and consequently the Panel finds in favor of the Complainant on the second element of the Policy. C. Registered and Used in Bad Faith
The Panel is well aware of the recognition of the Complainant's trademark AKÇANSA CBR SA in Turkey. The Panel believes that the Respondent must have known this trademark when the disputed domain name was created on December 29, 2012, particularly given that the disputed domain name has been registered many years after the Complainant's trademark has become well-known in Turkey. Banca Sella S.p.A. v. Mr. Paolo Parente,WIPO Case No. D2000-1157; Expedia, Inc. v. European Travel Network,WIPO Case No. D2000-0137.
When the Panel visited the disputed domain name, it resolved to an inactive website and the Respondent has not submitted any evidence or suggestion that he has any intention of using the disputed domain name for any purpose or legitimate activity consistent with good faith use. Paragraph 3.2 of the WIPO Overview 2.0 states that the lack of active use of the domain name does not as such prevent a finding of bad faith.
In light of the fact that the word "Akçansa" does not have a meaning in itself, and as such is not one traders would legitimately choose unless seeking to create an impression of an association with the Complainant, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name but has rather registered the disputed domain name in bad faith. Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003.
Bad faith registration and use is further indicated by the fact that the Respondent did not even bother to include any amendments or additions to the disputed domain name in order to prevent confusion among Internet users.
The fact that the disputed domain name is currently only parked does not change the Panel's findings in this respect.
All in all, the Panel cannot conceive of any good faith use of the disputed domain name which is not related to the trademark owned by the Complainant. Accordingly the Panel finds in favor of the Complainant on the third element 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 name be transferred to the Complainant.
Gökhan Gökçe
Sole Panelist
Date: December 5, 2016
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