tsk-genelkurmay.com

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

The Republic of Turkey (Genelkurmay Başkanligi/Turkish General Staff) v. Genel Kurmay

Case No. D2006-0213

1. The Parties

The Complainant is the Republic of Turkey (Genelkurmay Başkanligi/Turkish General Staff), Ankara, Turkey, represented by Abdullah Kaya, Turkey.

The Respondent is Genel Kurmay, Whois Agent, C/O tsk-genelkurmay.com, Bellevue, Washington, United States of America.

2. The Domain Name and Registrar

The disputed domain name <tsk-genelkurmay.com> is registered with eNom.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 17, 2006. On February 20, 2006, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On February 20, 2006, eNom transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on March 14, 2006. The Center verified that the Complaint, together with the amendment to the Complaint, satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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 17, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was April 6, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 10, 2006.

The Center appointed Mr. P-E Petter Rindforth as the sole panelist in this matter on April 18, 2006. 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.

The Administrative Panel shall issue its Decision based on the Complaint, the amendment to the Complaint, the Policy, the Rules, the Supplemental Rules, and without the benefit of any Response from the Respondent. The case before the Panel was conducted in the English language.

4. Factual Background

The Complainant is the Republic of Turkey (via Genelkurmay Başkanligi), an independent member State of the United Nations. Genelkurmay Başkanligi is the official supreme institution of the Turkish Armed Forces. “Genelkurmay” is the abbreviated Turkish expression for “Turkish General Staff” and it is a constitutional public authority of the Republic of Turkey.

According to Article 117 of the Turkish Constitution “The Office of Commander-in-Chief is inseparable from the spiritual existence of the Turkish Grand National Assembly and is represented by the President of the Republic”(according to the English translation, Annex D of the Complaint).

“Genelkurmay” is the holder of a number of domain names such as <genelkurmay.org>, <genelkurmay.info>, <genelkurmay.biz>, <genelkurmay.ws>, <genelkurmay.cc>, <genelkurmay.us> and <genelkurmay.tv>.

TSK stands for Turkish Armed forces (“Turk Silahli Kuvvetleri” in Turkish).

The Respondent registered the domain name on August 28, 2005. No detailed information is provided about the Respondent’s activities, apart from what is mentioned below by the Complainant.

5. Parties’ Contentions

A. Complainant

The functions of the Chief of Genelkurmay are regulated by Law No. 1324 of 1970. According to this law, Genelkurmay is an official institution independent from any ministries and works under the supervision of the Prime Minister of the Republic of Turkey (Annex E of the Complaint).

The Complainant refers to the Turkish Decree-Law No. 556 of 1995, pertaining to the protection of trademarks (Annex F of the Complaint), stating that a trademark – provided it is distinctive - may consist of all kinds of graphic signs such as words, etc. Complainant concludes that “Genelkurmay” is a sign which has a distinctive character and therefore may per se be a sign that could constitute a trademark.

The Complainant further refers to Article 6 stating that protection for a trademark under the law is obtained by registration, and Article 7 –listing the absolute grounds for refusal. Among the signs that shall not be registered as trademarks are: i) trademarks containing badges, emblems or escutcheons other than those covered by Article 6ter of the Paris Convention which have not been authorized by the competent authorities and are of particular historical and cultural public interest and ii) well known marks according to 6bis of the Paris Convention, use of which are not permitted by their owners.

The Complainant claims that “Genelkurmay” is a well known trademark in Turkey, representing the Turkish Armed Forces. The claim is supported by a list of 100 links to websites of Turkish Public authorities, daily Turkish and foreign newspapers and international organisations (Annex G).

The Complainant is of the opinion that the disputed domain name is identical to the service mark “Genelkurmay”, and that the Respondent registered the domain name to deceive Internet users trying to reach the official website of “Genelkurmay” to insult Turkish Armed Forces and to support the activities of the Respondent.

Complainant declares that the Respondent has no rights or legitimate interests in respect of the domain name.

Finally, the Complainant states that the disputed domain name is registered and used in bad faith. The web site under <tsk-genelkurmay.com> contains news against Genelkurmay and the Turkish security forces, an act that is – according to the Complainant – a criminal offence according to Turkish Criminal Law. Complainant argues that the Respondent falsely has registered the domain name in the name of a corporation, but is using the disputed domain name for a non-commercial support of terrorist activities.

The Complainant requests, in accordance with paragraph 4(i) of the Policy, that the Panel issue a decision that the domain name be transferred to the Complainant.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

According to paragraph 4(a) of the Policy, the Complainant must prove each of the following:

(i) that the Respondent’s domain name 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 Complainant has no trademark registration for “Genelkurmay” or similar word. However, the Policy is not restricted to registered trademarks only. Also unregistered trademark rights are within the scope of 4(a) of the Policy, see Government of Canada v. David Bedford a.k.a. DomainBaron.com, WIPO Case No. D2001-0470, and others.

a) Is “Genelkurmay” a trademark within the meaning of the Policy?

The Complainant has stated that “Genelkurmay” is the abbreviated Turkish expression for “Turkish General Staff” - a constitutional public authority of the Republic of Turkey with functions regulated by law.

According to Article 2 of Law No. 1324, “(Genelkurmay) establishes main programmes, determines priorities and principles of the personnel, the intelligence, the operation, the organisation, the education, the training and the logistic services.”

As shown in other UDRP Cases, such as Bundesrepublik Deutschland (Republic of Germany) v. RJG Engineering Inc./Gerhard Lauck, WIPO Case No. D2002-0110 and Skattedirektoratet v. Eivind Nag, WIPO Case No. D2000-1314, names of official bodies and functions may well be seen as service marks within the meaning of the Policy.

The term “Genelkurmay” is protected by law in Turkey and used exclusively by the Complainant as an identifier of the Complainant.

The Complainant has, however, not proved that the term is used in commerce to identify goods or services offered by the Complainant. It has therefore not established that the term is used as a trademark.

b) Is “Genelkurmay” recognized as a protected trademark in Turkey?

According to Article 6 of the Turkish Decree-Law No. 556, protection for a trademark is obtained by registration.

However, Article 7i of the Law No. 556 (Absolute Grounds for Refusal) gives certain protection for well known unregistered marks with reference to Article 6bis of the Paris Convention. Likewise, Article 8b of the Law No. 556 (Relative Grounds for Refusal) states that “upon opposition by the proprietor of a non-registered trademark…the trademark applied for shall not be registered…”

In order to be accepted as well known, a mark must be “considered by the competent authority of the country of registration or use to be well known in that country” (Article 6bis of the Paris Convention). As understood by this Panel, normally, in order to earn protection as well known, a mark must be disclosed as such through a decision from the Turkish Patent Institute.

The question whether the term “Genelkurmay” is to be considered as a trademark to which the Complainant has rights, has been discussed in Genelkurmay Baskanligi v. Genelkurmay Inc., WIPO Case No. D2001-1279. In the said case, the Complaint – based on use of the term “Genelkurmay” as part of the title GENELKURMAY BÜLTENI for a monthly Bulletin – was denied, the Panel stating “only exceptionally trademark protection is granted…based on use. However, in such cases simple use is generally not sufficient”.

In the present case, the Complainant - which is an official body - argues that the word “Genelkurmay” is well known in Turkey and refer to a list of 100 links to websites of Turkish Public authorities, daily Turkish and foreign newspapers and international organisations in support of this statement. The fact that “Genelkurmay” is mentioned in the Constitution of the Republic of Turkey and the subject of Law No. 1324 is also cited as an indication that “Genelkurmay” is well known.

It is the opinion of this Panel that the legal protection of the term “Genelkurmay”, mentioned above, only gives the Complainant an exclusive right to use the said term. The constitutional right to the name does not as such establish rights to the name as a well known trademark.

The mere list of links to websites referring to “Genelkurmay” does not establish use of this term to identify goods and services and is therefore not enough to prove that the term enjoy trademark protection in Turkey as a well known mark.

As in WIPO Case No. D2001-1279, the Complainant has provided little evidence in support of the claim that “Genelkurmay” has reached the status of well known mark.

In summary:

i) The Panel accepts that the Complainant is – by regulation – the only body entitled to use the term “Genelkurmay” in Turkey.

ii) The Panel further concludes that the Complainant has failed to prove that “Genelkurmay” is a well known trademark

In the absence of further evidence, the Panel therefore concludes that the Complainant has not been able to prove that it has, in the meaning of the Policy, protected trademark rights in Turkey for the term “Genelkurmay”.

Since the Complainant does not fulfill the first condition of paragraph 4(a) of the Policy, there is no need to enter into a discussion whether ii) the Respondent has rights or legitimate interests in respect of the domain name, or iii) whether the domain name has been registered and is being used in bad faith.

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Complaint is denied.

P-E H Petter Rindforth
Sole Panelist

Dated: May 17, 2006