The Complainant is Türkiye Cumhuriyeti Ziraat Bankasi Anonim Şirketi, Turkey, represented by Grup Ofis Marka Patent Inc., Turkey.
The Respondent is liyun Zhang, China. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed in Turkish with the WIPO Arbitration and Mediation Center (the “Center”) on September 30, 2019. On September 30, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 14, 2019, 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 15, 2019 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 Turkish language Complaint on October 15, 2019 and an amended English language Complaint on November 1, 2019. On October 15, 2019, the Center transmitted an email in Turkish and Chinese to the Parties regarding the language of the proceeding. The Complainant requested that English be the language of the proceeding on October 23, 2019. The Respondent did not comment on the language of the proceeding. 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 proceeding commenced on November 12, 2019. In accordance with the Rules, paragraph 5, the due date for Response was December 2, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 3, 2019. The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on December 16, 2019. 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 A. Complainant The Complainant is a bank established in Turkey in 1888 and operating in Turkey and in 23 countries worldwide under the trade marks ZIRAAT BANKASI and ZIRAAT BANK (the “Trade Mark(s)”). The Complainant is a well-known bank in Turkey. The Complainant is the owner of a large number of registrations in Turkey for the Trade Mark ZIRAAT BANKASI, including registration No. 2005 58096, with a registration date of December 30, 2005. The Complainant is also the owner of International registration No. 1179729 for the Trade Mark ZIRAAT BANK, designating China, with a registration date of June 14, 2013. B. Respondent The Respondent is apparently an individual located in China. C. The Disputed Domain Name The disputed domain name was registered on July 5, 2019. D. Use of the Disputed Domain Name The disputed domain name has not been used by the Respondent. It is presently resolved to a single page, English language, “your connection is not private” website. Prior to the filing of the Complaint, the WhoIs search results for the disputed domain name contained a prominent banner with the wording “ziratbankasi.com is for sale! The domain name you are searching is available for registration. Buy ziratbankasi.com”. 5. Parties’ Contentions A. Complainant The Complainant contends that the disputed domain name is identical or confusingly similar to the Trade Marks, the Respondent has no rights or legitimate interests in respect of the disputed domain name, and the disputed domain name was registered and is being used in bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1 Language of the Proceeding The language of the Registration Agreement for the disputed domain name is Chinese. Pursuant to the Rules, paragraph 11, in the absence of an agreement between the parties, or unless specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement. Paragraph 11(a) of the Rules allows the panel to determine the language of the proceeding having regard to all the circumstances. In particular, it is established practice to take paragraphs 10(b) and (c) of the Rules into consideration for the purpose of determining the language of the proceeding, in order to ensure fairness to the parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes. Language requirements should not lead to undue burdens being placed on the parties and undue delay to the proceeding. The Complainant has requested that the language of the proceeding be English, on the basis that the disputed domain name was, in August 2013, apparently used in respect of an English language website. The Respondent did not file a response and did not file any submissions with respect to the language of the proceeding. In exercising its discretion to use a language other than that of the Registration Agreement, the Panel has to exercise such discretion judicially in the spirit of fairness and justice to both Parties, taking into account all relevant circumstances of the case, including matters such as the Parties’ ability to understand and use the proposed language, time and costs. The Panel is unable, on the basis of the evidence submitted by the Complainant, to conclude there is a likely possibility that the Respondent is conversant in the English language. Although it seems from the screen shot of the web archive search conducted by the Complainant that (i) the disputed domain name may have been previously registered and used before it was registered by the Respondent on July 5, 2019; and (ii) the disputed domain name may have been resolved to an English language website in August 2013, the Complainant has not produced any evidence to show that the Respondent was the registrant of the disputed domain name in August 2013, nor has the Complainant submitted the relevant screenshot from August 2013. The Panel notes however that the disputed domain name, although not actively used, is presently resolved to an English language “your connection is not private” website; and that the English language WhoIs results for the disputed domain name previously contained an English language offer to sell the disputed domain name. These facts might at least suggest a prima facie case that the Respondent is conversant in English. The Panel notes also that the Respondent has chosen not to contest this proceeding; and is mindful of the need to ensure the proceeding is conducted in a timely and cost effective manner. In all the circumstances, the Panel therefore finds it is not foreseeable that the Respondent would be prejudiced, should English be adopted as the language of the proceeding. Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that the language of the proceeding shall be English. 6.2 Substantive Elements of the Policy The Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail: (i) the respondent’s domain name 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 in respect of the domain name; and (iii) the respondent’s domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Panel finds that the Complainant has rights in the Trade Marks acquired through use and registration. The disputed domain name consists of a common, obvious, or intentional misspelling of the Trade Mark ZIRAAT BANKASI – the only difference being the missing letter “a” in ZIRAAT (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.9). It is also confusingly similar to the ZIRAAT BANK Trade Mark, particularly in light of the fact that “bankasi” is the Turkish word for “bank”. The Panel therefore finds that the disputed domain name is confusingly similar to the Trade Marks. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a disputed domain name: (i) before any notice to the respondent of the dispute, the respondent’s use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or (ii) the respondent (as an individual, business, or other organization) has been commonly known by the disputed domain name even if the respondent has acquired no trade mark or service mark rights; or (iii) the respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue. The Complainant has not authorised, licensed, or permitted the Respondent to register or use the disputed domain name or to use the Trade Marks. The Panel finds on the record that there is therefore a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, and the burden is thus on the Respondent to produce evidence to rebut this presumption. The Respondent has failed to show that the Respondent has acquired any trade mark rights in respect of the disputed domain name or that the disputed domain name has been used in connection with a bona fide offering of goods or services. To the contrary, the disputed domain name has not been used since its registration by the Respondent on July 5, 2019. There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name. There has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name. In all the circumstances, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith In light of the Respondent’s offer to sell the disputed domain name via the WhoIs search results for the disputed domain name, the Panel finds that bad faith registration and use has been made out under paragraph 4(b)(i) of the Policy. The Panel also considers that, in all the circumstances, including the repute of the Trade Marks in the Turkish speaking world, the close similarity between the disputed domain name and the Trade Marks, and the Respondent’s offer to sell the disputed domain name, it is inconceivable that the Respondent was not aware of the Complainant and of the Complainant’s rights in the Trade Marks at the time of registration of the disputed domain name. The Panel therefore finds that the disputed domain name has been registered and is being used in 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 name Sebastian M.W. Hughes
Sole Panelist
Dated: December 30, 2019
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