Complainant is Yapı ve Kredi Bankası A.Ş. of Istanbul, Turkey, represented by Dericioğlu & Yasar Law Office, Turkey.
Respondent is He Yi of Hengyang, China. 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 December 7, 2016. On December 8, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 9, 2016, the Registrar transmitted by email to the Center its verification response confirming that 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 Respondent of the Complaint, and the proceedings commenced on December 15, 2016. In accordance with the Rules, paragraph 5, the due date for Response was January 4, 2017. Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 5, 2017.
The Center appointed M. Scott Donahey as the sole panelist in this matter on January 11, 2017. 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
Complainant, established in 1944, is the fourth largest bank in Turkey and has more than USD 83 billion in assets. Shares of stock of the bank are traded on the London Stock Exchange. Complainant had advertised and been featured in stories and received awards nationally and internationally. Complaint, Annex 3.
Complainant has used the mark YAPI KREDI as the essential part of its trade name and as a service mark since 1944 and has registered YAPI KREDI in Turkey as the essential part of numerous trademarks beginning in 1997. Complaint, Annex 5. Beginning on November 13, 1996, Complainant registered three domain names which incorporated the YAPI KREDI mark as an essential part of the Second Level Domain name (“SLD”) in each of the registered domain names. Complaint, Annex 6.
The disputed domain name was registered on August 8, 2013.
Respondent is using the disputed domain name to resolve to a web site at which pornographic videos are apparently offered for sale. The language accompanying the videos is Chinese. Complaint, Annex 7. 5. Parties’ Contentions A. Complainant
Complainant contends that the disputed domain name is confusingly similar to the essential part of its trade name and trademarks in that YAPI KREDI constitutes the entirety of the Second-Level Domain. Complainant contends that it has no connection of any sort with Respondent, and has not authorized Respondent to use its mark in any fashion, and that Respondent has no marks that correspond to the disputed domain name. Therefore, Complainant argues that Respondent has no right or legitimate interests in respect of the disputed domain name. Finally, Complainant asserts that Respondent’s use of the disputed domain name to resolve to a web site at which pornographic videos are offered for sale is and has been found by UDRP panels to be bad faith registration and use of the disputed domain name. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
Paragraph 15(a) of the Rules instructs the Panel as to the principles the Panel is to use in determining the dispute:
“A Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”
Paragraph 4(a) of the Policy directs that the complainant must prove each of the following:
i) that the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
ii) that the respondent has no rights or legitimate interests in respect of the domain name; and
iii) that the domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The disputed domain name corresponds in its entirety to the essential elements of Complainant’s trade name and registered and common law service mark and trademarks, YAPI KREDI, and therefore the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark. B. Rights or Legitimate Interests
The consensus view of UDRP panelists concerning the burden of establishing no rights or legitimate interests in respect of the domain name is as follows:
While the overall burden of proof rests with the complainant, panels have recognized that this could result in the often impossible task of proving a negative, requiring information that is often primarily within the knowledge of the respondent. Therefore, a complainant is required to make out an initial prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, respondent carries the burden of demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such appropriate allegations or evidence, a complainant is generally deemed to have satisfied paragraph 4(a)(ii) of the UDRP.
WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview, 2.0”), paragraph 2.1.
In the present case Complainant alleges that Respondent has no rights or legitimate interests in respect of the disputed domain names and Respondent has failed to assert any such rights. Accordingly, the Panel finds that Respondent has no rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith
The Panel finds that Respondent is using the disputed domain name to resolve to a web site at which pornographic videos are offered for sale and that the association of Complainant’s trade name, service mark and the essential elements of its trademark may tarnish its reputations in the minds of many users. Therefore, the Panel 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 be transferred to Complainant.
M. Scott Donahey
Sole Panelist
Date: January 11, 2017
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