The Complainant is Turkcell Iletisim Hizmetleri A.S. of Istanbul, Turkey, represented by Istanbul Patent & Trademark Consultancy Ltd., Turkey.
The Respondent is Volkan Turk of Istanbul, Turkey, and Doha, Qatar. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with R (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 7, 2011. The Center transmitted its request for registrar verification to the Registrar the same day. The Registrar replied (following a reminder) on January 11, 2011, confirming that it was the registrar and the Respondent was the registrant of the Domain Name, that the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”) applied to the registration, that the Domain Name would remain locked during this proceeding, and that the language used at the time of the registration had been English. The Registrar also provided the full contact details held on its WhoIs database in respect of the Domain Name.
The Center verified that the Complaint satisfied the formal requirements of the 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 paragraphs 2(a) and 4(a) of the Rules, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on January 12, 2011. In accordance with paragraph 5(a) of the Rules, the due date for Response was February 1, 2011. The Respondent did not submit any response by that date. Accordingly, the Center notified the Respondent’s default on February 2, 2011. The Respondent subsequently submitted a Response on February 2, 2011.
The Center appointed Jonathan Turner as the sole panelist in this matter on February 10, 2011. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with paragraph 7 of the Rules. Having reviewed the file, the Panel finds that the Complaint complied with applicable formal requirements, was duly notified to the Respondent and has been submitted to a properly constituted Panel in accordance with the UDRP, the Rules and the Supplemental Rules. 4. Procedural Ruling
Although the Response was filed after the due date and no excuse has been offered for the failure to comply with the time limit, the delay was insignificant and has not prejudiced the duly expeditious determination of the dispute. In the circumstances the Panel admits the Response under its general powers in paragraph 10 of the Rules. 5. Factual Background
The Complainant is the leading mobile telephone network operator in Turkey and the third biggest in Europe with nearly 31 million subscribers. The Complainant has operated its business since 1994 and its shares have been quoted on the New York and Istanbul stock exchanges since July 2000. It operates under the name “TURKCELL” and has registered trademarks consisting primarily of the word TURKCELL in Turkey, the European Union and the United States of America. It has its main websites at “www.m” and “www.m.tr”.
The Domain Name was registered on September 14, 2010, and has been pointed to a web page with a banner containing the name “ ®” and the legend “consumers in control”.
After registering the Domain Name the Respondent sent emails to the Complainant stating that he had registered it “to protect and secure your .CO”, that “Owning of your .CO domain is critical, specially for the big corporations and brands”, and that “we are first approaching you directly to sell”. The emails invited the Complainant to contact the Respondent if the Complainant was interested in securing the Domain Name or not as soon as possible. The Complainant did not reply. 6. Parties’ Contentions A. Complainant
The Complainant contends that it has rights in the mark TURKCELL and other marks consisting primarily of this word. The Complainant further contends that the Domain Name is identical or confusingly similar to these marks.
The Complainant submits that the Respondent has no rights or legitimate interests in respect of the Domain Name. It states that it has not licensed or permitted the Respondent to use the Domain Name, that the Respondent is not commonly known by the Domain Name, and that as a Turkish citizen the Respondent must have been aware of the Complainant’s marks when he registered the Domain Name.
The Complainant alleges that the Domain Name was registered and is being used in bad faith. In particular, the Complainant contends that the Domain Name was registered primarily for the purpose of selling, renting or otherwise transferring to the Complainant for valuable consideration in excess of the Respondent’s out-of-pocket costs. The Complainant points out that the Respondent has registered a number of other .co domain names with second level domains corresponding to the names of well-known Turkish companies, such as , , and . The Complainant also alleges that the Respondent has used the Domain Name intentionally to attract Internet users to its website for commercial gain by creating a likelihood of confusion with the Complainant’s marks and that the Respondent registered the Domain Name to prevent the Complainant from reflecting its marks in a corresponding domain name.
The Complainant requests a decision that the Domain Name be transferred to it. B. Respondent
The Respondent accepts that the Domain Name is identical to marks in which the Complainant has rights and adds that these marks are confusingly similar to his own surname “Turk”.
The Respondent submits that he has rights or legitimate interests in respect of the Domain Name. He says that he purchased more than 400 .co domain names for his business of securing .co domain names for companies who failed to buy them on time and forestalling cybersquatters. His intention was to offer companies a service of following up news from ICANN and buying any related domain names to secure them in the future. The Respondent points out that he sent two emails to the Complainant explaining that he had registered the Domain Name to protect it and also called the Complainant’s legal department many times, but no one from the Complainant approached him. He concluded that they were not interested and directed the Domain Name to a known consumers website.
The Respondent denies that he registered or is using the Domain Name in bad faith. He points out that he has not caused the Domain Name to forward to a competitor’s website or a pornographic website. He claims that he did not ask the Complainant to pay him money to buy the Domain Name. He says that he did not establish a website at the Domain Name or even park it to make money out of the Complainant’s known brand and did not threaten to use it badly. He also submits that there is no dispute since the Complainant did not engage him in argument or debate.
The Respondent adds that the dispute can be solved if someone from the Complainant contacts him since he just wants the Complainant to pay his expenses of purchasing the Domain Name and protecting it from cybersquatters. He concludes by saying that he consents to the remedy requested by the Complainant without the need for a decision. 7. Discussion and Findings
It has been held in a number of cases that a genuine unilateral consent by the Respondent to a transfer of the disputed domain name provides a basis for an immediate order for transfer without consideration of the elements of paragraph 4(a) of the UDRP: see AXA SA v. Enrique,WIPO Case No. D2010-1888, and cases cited there. However, these cases also make it clear that even if such consent is given, the Panel has a discretion and may proceed to a consideration on the merits, for example where it is desirable to make a public finding of bad faith against a serial cybersquatter who has sought to avoid such a finding by timely concession.
In the present case, the Respondent has not unequivocally consented to an unconditional transfer of the Domain Name, but rather has said that he should be contacted by the Complainant and wants the Complainant to pay his expenses of purchasing the Domain Name and protecting it from cybersquatters. Furthermore, the Domain Name is one of many domain names which the Respondent has registered as part of his business of securing .co domain names for companies who failed to register them on time. It is therefore desirable to proceed to a determination clarifying the position on the substantive issues for the benefit of all concerned.
The substantive requirements which a complainant must prove under paragraph 4(a) of the UDRP are (i) that the Domain Name is identical or confusingly similar to a mark in which it has rights; (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. It is appropriate to consider these requirements in turn. A. Identical or Confusingly Similar
The Panel finds on the evidence that the Complainant has registered rights in marks consisting predominantly of the word TURKCELL and unregistered rights in the mark TURKCELL itself. The Panel is also satisfied that the Domain Name is identical or confusingly similar to these marks. Many Internet users would suppose that the Domain Name was registered by the Complainant or would type it by mistake when seeking the Complainant’s principal website at “www.m”. The first requirement of the UDRP is satisfied. B. Rights or Legitimate Interests
The Panel notes that the Respondent registered the Domain Name and many other .co domain names reflecting the names of well-known companies without their prior consent for the purpose of his business of securing domain names for these companies. The Panel further notes that the Respondent offered to sell the Domain Name to the Complainant.
The Panel finds that the Respondent sought to sell the Domain Name to the Complainant at a profit. The Respondent admits that he registered the Domain Name as part of his business, and the Panel infers that he intended his business to make a profit. Furthermore, it is obvious that his emails to the Complainant, stressing the importance of owning its .co domain name, were inviting the Complainant to purchase the Domain Name from him for a price in excess of the minimal cost of registration.
In these circumstances, the Panel finds that the Respondent has not used the Domain Name in connection with a bona fide offering of goods or services. It is also clear that the Respondent is not commonly known by the Domain Name and has not made legitimate noncommercial or fair use of it. Nor is there any other basis in the circumstances of this case on which the Respondent could claim any right or legitimate interest in respect of the Domain Name.
In all the circumstances the Panel finds that the Respondent does not have any rights or legitimate interests in respect of the Domain Name. The second requirement of the UDRP is satisfied. C. Registered and Used in Bad Faith
For the reasons stated above, the Panel finds that the Respondent registered the Domain Name primarily for the purpose of selling it to the Complainant for valuable consideration in excess of his costs of registering it. In accordance with paragraph 4(b)(i) of the UDRP this constitutes evidence of registration and use in bad faith.
This presumption is not displaced by any countervailing evidence in the file, but rather is reinforced by the material in the file, including in particular the Respondent’s registration of numerous other .co domain names reflecting the names of well-known companies without their consent.
In all the circumstances, the Panel finds that the Domain Name was registered and is being used in bad faith. The third requirement of the UDRP is satisfied. 8. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name, , be transferred to the Complainant.
Jonathan Turner
Sole Panelist
Dated: February 22, 2011
Full & Egal Universal Law Academy