Westmore · UDRP DecisionGaranticazyesili.com
The Panel ordered transfer of <garanticazyesili.com> after finding all three UDRP elements satisfied. The domain was identical to the Complainant’s Turkish GARANTI CAZ YESILI trademark, the Respondent did not establish rights or legitimate interests, and the Panel found that the Respondent must have known of the established mark and related Istanbul jazz festival when registering the domain. The domain’s inactivity did not prevent a finding of bad-faith registration and use.
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The decision illustrates an exact-match trademark case in which longstanding rights, a well-established festival association, respondent default, and the absence of any plausible legitimate explanation supported transfer even though the domain was inactive. It also confirms that default did not remove the Complainant’s burden, but left its prima facie case and reasonable factual allegations unrebutted.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Türkiye Garanti Bankası Anonim Şirketi v. DNS Management Case No. D2014-0310 1. The Parties The Complainant is Türkiye Garanti Bankası Anonim Şirketi of Istanbul, Turkey, represented by Dericioğlu & Yaşar Law Office, Turkey. The Respondent is DNS Management, Yonca New Media Group Inc. of Istanbul, Turkey. 2. The Domain Name and Registrar The disputed domain name <garanticazyesili.com> is registered with OnlineNic, Inc. d/b/a China‑Channel.com (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 27, 2014. On February 27, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 28, 2014, 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 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on March 11, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was March 31, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 1, 2014. The Center appointed Kaya Köklü as the sole panelist in this matter on April 17, 2014. 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 is a large and renowned Turkish bank established more than 60 years ago. It belongs to the largest Turkish private bank and has nearly 17,000 employees in almost 800 branches. For 16 years, the Complainant has actively supported the well-known International Istanbul Jazz Festival, known under the name “Garanti Caz Yeşili” for the last 13 years. The Complainant is the owner of the trademark GARANTI CAZ YESILI, which has been registered in Turkey for various products and services since 2002. In addition, the Complainant has owned a large number of GARANTI trademarks since 1996. Besides its main website <garanti.com.tr>, the Complainant has owned and operated the domain name <garanticazyesili.com.tr> for many years. The disputed domain name <garanticazyesili.com> was created on August 24, 2012. The Respondent seems to be a media company located in Istanbul, 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 identical or at least confusingly similar to the Complainant’s trademark GARANTI CAZ YESILI. Furthermore, the Complainant argues that the Respondent has no rights or legitimate interests in the disputed domain name and must have registered and used the disputed domain name in 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 GARANTI CAZ YESILI trademark of the Complainant. 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 the Turkish trademark GARANTI CAZ YESILI since 2002. The disputed domain name is identical to the Complainant’s GARANTI CAZ YESILI trademark as it incorporates the Complainant’s trademark in its entirety without any additions or amendments. In the Panel’s view, the mere addition of the generic Top-Level Domain (“gTLD”) “.com” has no distinguishing effect and is as a general principle 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. Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455 . The Panel finds that the Complainant has satisfied this requirement, while the Respondent has failed to file any evidence or convincing argument to demonstrate a right or legitimate interest in the disputed domain name according to the Policy, paragraph 4(a)(ii) and 4(c). With its Complaint, the Complainant has provided uncontested prima facie evidence that the Respondent has no rights or legitimate interests to use the Complainant’s trademark GARANTI CAZ YESILI in the disputed domain name. In the absence of a Response by the Respondent, there is no indication in the current record that the Respondent is commonly known by the disputed domain name. Furthermore, the Respondent has failed to demonstrate any of the other nonexclusive circumstances evidencing rights or legitimate interests under the Policy, paragraph 4(c) or any other evidence of a right or legitimate interest in the disputed domain name. In particular, the Respondent has failed to show that the disputed domain name has been or is intended to be used in connection with a bona fide offering of goods or services. In fact, the Panel cannot conceive of any use of this trademark by the Respondent, which would qualify as a legitimate use. Consequently, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith The Panel is further convinced that the Respondent has registered and is using the disputed domain name in bad faith. The Panel is of the opinion that the Respondent intentionally attempted to create a likelihood of confusion among customers and/or to otherwise take advantage of the Complainant’s trademark, probably for commercial gain or some other illegitimate benefit. The Panel believes that the Respondent must have been well-aware of the Complainant’s trademark when it registered the disputed domain name in August 2012. At the date of registration of the disputed domain name, the Complainant’s trademark and the related jazz festival in Istanbul were already well known for many years. Bad faith registration and use is also 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. Another indication for bad faith registration and use is that the Respondent preferred not to respond to the Complainant’s contentions, although being informed of the pending administrative proceedings by email and courier. The fact that the disputed domain name is currently inactive 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 annual jazz festival in Istanbul and the trademark owned by the Complainant. The Panel therefore concludes that the disputed domain name was registered and is being used in bad faith and that the Complainant consequently has satisfied the third element of the Policy, namely, paragraph 4(a)(iii) 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 <garanticazyesili.com> be transferred to the Complainant. Kaya Köklü Sole Panelist Date: April 28, 2014
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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