The Complainant is Türk Ticaret Bankası A.Ş., Turkey, represented by İsimtescil Bilişim A.Ş., Turkey.
The Respondent is Seda Celik, Turkey. 2. The Domain Name and Registrar
The disputed domain name The Complaint was initially filed in Turkish with the WIPO Arbitration and Mediation Center (the “Center”) on December 20, 2019. On December 20, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 23, 2019, 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 Registrar indicated that the language of the Registration Agreement was English. The Center sent an email communication to the Complainant in English and Turkish on December 24, 2019, inviting the Complainant to provide sufficient evidence of an agreement between the Parties for Turkish to be the language of the proceeding, a Complaint translated into English, or a request for Turkish to be the language of the proceeding. The Complainant filed a Complaint translated into English on January 17, 2020. The Respondent did not comment on the language of the proceeding. 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 21, 2020. In accordance with the Rules, paragraph 5, the due date for Response was February 10, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 11, 2020. The Center appointed Gökhan Gökçe as the sole panelist in this matter on February 17, 2020. 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 founded in 1913, is a Turkish bank. The Complainant is the registered owner of TÜRK TİCARET BANKASI A.Ş. “TÜRKBANK İKİNCİ ADRESİNİZ” figurative trademark in Turkey. The trademark covers protection for banking and financial services. According to the Complaint, Turkish trademark TÜRK TİCARET BANKASI A.Ş. “TÜRKBANK İKİNCİ ADRESİNİZ” was registered on May 4, 2005, with the registration number 2005 17067. The Complainant also registered the domain names: - The disputed domain name was registered on January 1, 2004, and the disputed domain name was acquired by the Respondent on August 18, 2014. The Respondent is an individual from Turkey. The Panel visited the disputed domain name on March 2, 2020, and determined that the disputed domain name is active, and the disputed domain name resolves to a website in Turkish which provides information about banks in Turkey. 5. Parties’ Contentions A. Complainant The Complainant requests the transfer of the disputed domain name. The Complainant is of the opinion that the disputed domain name is confusingly similar to their TÜRK TİCARET BANKASI A.Ş. “TÜRKBANK İKİNCİ ADRESİNİZ” trademark. The Complainant also states that, the disputed domain name is exactly same as registered domain names of the Complainant using “Türkbank” as it is commonly known by the public. Furthermore, the Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name. Finally, it is argued that the Respondent has registered and is using the disputed domain name in bad faith. The Complainant particularly argues that the Respondent must have been aware of the Complainant’s trademarks and registered domain names, when registering the disputed domain name as the Complainant is a well-known bank in Turkey. Additionally, the Complainant asserts that they contacted the Respondent before filing the Complaint and requested: i) prevention of the use of the disputed domain name due to its resemblance to their trademark and domain names, and ii) sale of the disputed domain name to preserve the brand value of their trademark. However, the Respondent asked exorbitant price for the disputed domain name. Since he also rejected discount request about the disputed domain name, the Parties cannot come to an agreement. B. Respondent The Respondent submitted its Response in Turkish nine days after the due date. It is argued that the Respondent’s partner who is the actual owner of the disputed domain, previously worked in finance sector and the disputed domain name was acquired by them on August 18, 2014, and is being used to share general information on finance and banking in Turkey. It is also argued that the term “turkbank” (“turkish bank” in Turkish) is highly descriptive and the distinctive part of the Complainant’s tradename is “ticaret”. 6. Discussion and Findings 6.1 Late Filing of the Response Paragraph 14(a) of the Rules provides that, in the event of a late response, absent exceptional circumstances, panels shall proceed to a decision based solely on the complaint. Paragraph 14(a) of the Rules is counterbalanced by paragraph 10(b) of the Rules, which requires panels to ensure that parties are treated with equality and that each party is given a fair opportunity to present its case. The Response was filed nine days late. The Respondent explained its late response reason as follows “My client have first on 17th February 2020 realized that there has been a case regarding the domain upon his wife’s notice who coincidentally checked her e-mail inbox which she had not used for a long time”. The Panel notes that, in the event of a late Response, the default course of action pursuant to paragraph 14(a) of the Rules, is to proceed to decision based only on the Complaint. However, the Panel may, in its discretion, consider the response if “exceptional circumstances” exist. As highlighted in AIB‑Vincotte Belgium ASBL, AIB-Vincotte USA Inc./Corporation Texas v. Guillermo Lozada, Jr.,WIPO Case No. D2005-0485, late responses were taken into account by the UDRP panels in cases where: “- the response was filed before commencement of the decision-making process by the panel (see J.P. Morgan & Co., Incorporated and Morgan Guaranty Trust Company of New York v. Resource Marketing,WIPO Case No. D2000-0035); - the lateness did not delay the decision (see Young Genius Software AB v. MWD, James Vargas,WIPO Case No. D2000-0591); - response was late only by one day (see Kate Spade, LLC v. Darmstadter Designs,WIPO Case No. D2001‑1384 and Arthur Guinness Son & Co. (Dublin) Limited v. Feeney O’Donnell and John O’Donnell,WIPO Case No. D2000-1710); - although there were no exceptional circumstances, a late response was taken into account on the basis of the panel’s ‘general powers’ pursuant to paragraph 10(b) of the Rules (‘equality and that each party is given a fair opportunity’) on the grounds that failure to take the response into account ‘would be a rather drastic step and should be undertaken with great care (see AT&T Corp. v. Randy Thompson,WIPO Case No. D2001-0830).” In contrast, responses submitted after the expiry of the deadline were dismissed by the UDRP panel where the period set was exceeded by two weeks, since the respondent could have applied for an extension and was represented by counsel (Talk City, Inc. v. Michael Robertson,WIPO Case No. D2000-0009). In the case at hand, notwithstanding the absence of exceptional circumstances, the lateness of the filing of the Response has not prejudiced the Complainant nor has it greatly delayed the Decision. In view of the above and exercising its powers according to paragraph 10(b) of the Rules, the Panel deems appropriate to admit the Respondent’s late Response and will thus consider it in rendering the Decision. A. Identical or Confusingly Similar The Panel finds that the disputed domain name is confusingly similar to the TÜRK TİCARET BANKASI A.Ş. “TÜRKBANK İKİNCİ ADRESİNİZ” trademark of the Complainant as the first element functions primarily as a standing requirement and when compared the disputed domain name and the Complainant’s trademark, part of the textual components of the Complainant’s trademark are recognizable within the disputed domain name (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.7). Moreover, the fact that the disputed domain name is also almost identical to the registered domain names of the Complainant and its tradename “Türkbank”, which the Complainant is widely known for in the public, helps to affirm the Panel’s finding of confusing similarity under the first element of the Policy. The addition of a generic Top-Level Domain (“gTLD”) such as “.com” after a domain name is technically required. Thus, it is well established that such element may be disregarded when assessing whether a domain name is identical or confusingly similar to a trademark. Proactiva Medio Ambiente, S.A. v. Proactiva,WIPO Case No. D2012-0182. 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 In the light of the evidence submitted by the Complainant, e.g., trademark registration certificates for TÜRK TİCARET BANKASI A.Ş. “TÜRKBANK İKİNCİ ADRESİNİZ”, domain name registrations involving the term “Türkbank” and “turkbank”, the Panel finds on the current record that the Complainant has proved rights in the trademark and 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. In its Response, the Respondent argues that the term “turkbank” in the disputed domain name is descriptive and widely used by the other banks in Turkey, therefore arguing that the Complainant cannot claim rights in the disputed domain name. However, the Respondent also shared a fair amount of facts concerning the Complainant such as how the Complainant’s bank went through financial difficulties during the 1990s by attaching press coverage which also referred to the Complainant as “Türkbank” (Annex 4 to the Response). From the Annexes submitted by the Respondent, it is clear to the Panel that the Complainant was in fact commonly known as “Türkbank” and has earlier and lawful rights in the latter tradename and the TÜRK TİCARET BANKASI A.Ş “TÜRKBANK İKİNCİ ADRESİNİZ” trademark. In light of the above, the Panel is convinced that the Respondent must have been aware of the Complainant’s registered trademark, widely known tradename and reputation in the finance and investment sector as the Respondent claims to operate in the banking sector in several years. In addition, the record before this Panel does not reflect the Respondent’s use or demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or services. The Respondent has made no claim to have been commonly known by the disputed domain name, or to have acquired trademark or service mark rights in the disputed domain name. In short, the Respondent has not come forward with evidence of rights or legitimate interests in the disputed domain name as the disputed domain name resolves to a website in Turkish which provides links to a handful of competing banks in Turkey. The website contains only general information about the banks in Turkey such as names, address, phone number and SWIFT number and websites, etc. The Panel considers that it is in effect a pretextual website with no substantial content, therefore the Panel believes that this does not constitute a bona fide offering of services under the Policy. The Respondent additionally argues that it uses the disputed domain name for noncommercial purposes. Even if the Respondent’s case is accepted, the Panel does not consider this by itself establishes a legitimate or fair use of the term “Türkbank” which is clearly a name that the Complainant is known for as stated in multiple press coverages from 2001 shared by the Respondent. There is no doubt any number of perfectly legitimate domain names the Respondent could use for a bank-related blog website. The use of the Complainant’s trademark and tradename, is inherently confusing and suggests a webpage that is written by or with the approval of the Complainant. The Respondent has not produced any convincing explanation of why it chose this name or why it has any legitimate reason for using a name that the Complainant is known for. Thus, in balancing the rights of the Complainant in its TÜRK TİCARET BANKASI A.Ş. “TÜRKBANK İKİNCİ ADRESİNİZ” mark and tradename, and the rights of the Respondent to choose freely a domain name for expressing its views in personal websites on subjects yet to be identified, the Panel concludes that the Respondent has impermissibly taken advantage of the Complainant’s commercial interests in its mark. Accordingly, the Panel finds the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith Pursuant to the Annex 1 to the Response, the Respondent acquired the disputed domain name on August 18, 2014, long after the Complainant registered its trademark and domain names. It is suggestive of the Respondent’s bad faith in these circumstances that the trademark, owned by the Complainant, was registered long before the registration of the disputed domain name (Sanofi-Aventis v. Abigail Wallace,WIPO Case No. D2009-0735). This finding is also supported by the press coverage shared by the Respondent as Annex 4 to the Response. Accordingly, the oldest press coverage dates back to 2001 and they all refer to the Complainant as “Türkbank”, which is almost identical to the disputed domain name. The Panel performed an independent research typing “türkbank” on a search engine and discovered many articles related to the Complainant, one of which was published in 2013, having a headline “Türk Ticaret Bankası geri dönüyor”, meaning “Türk Ticaret Bankası is coming back” in English. The fact that the Respondent acquired the disputed domain name right after the news indicating the Complainant was coming back to business were published ascertains the Respondent’s bad faith in registering the disputed domain name. In light of this information and the findings mentioned in paragraph B above, the Panel finds on balance that the Respondent has registered or acquired the disputed domain name registration to attract Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website and/or to disrupt the Complainant’s business. The Panel finds that paragraph 4(a)(iii) of the Policy has been satisfied. 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, Gökhan Gökçe
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Sole Panelist
Date: March 10, 2020
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