WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Akbank Turk A.S. v. Ali Kaan UGUR, Yorunge Bilisim Hizm.Ltd.Sti.

Case No. D2010-0725

1. The Parties

The Complainant is Akbank Turk A.S. of Istanbul, Turkey, represented by Istanbul Patent & Trademark Consultancy Ltd., Turkey.

The Respondent is Ali Kaan UGUR, Yorunge Bilisim Hizm.Ltd.Sti. of Istanbul, Turkey.

2. The Domain Name and Registrar

The disputed domain name <akbankmobile.com> is registered with FBS Inc.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 6, 2010. On May 6, 2010, the Center transmitted by email to FBS Inc. a request for registrar verification in connection with the disputed domain name. On May 28, and June 4, 2010, FBS Inc. 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 June 10, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was June 30, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on July 1, 2010.

The Center appointed Kaya Köklü as the sole panelist in this matter on July 12, 2010. 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.

Although the language of the Registration Agreement is the Turkish language, the Panel determines in accordance with the Complainant's request and the Rules, paragraph 11(a), that the language of these administrative proceedings shall be the English language. This decision is inter alia based on the fact that the disputed domain name comprises the English term “mobile” indicating banking services via mobile phone. The use of an English term makes it rather likely in this Panel's view that the Respondent is familiar with the English language. In addition, this Panel finds it would be inappropriate to request a Turkish translation of the Complaint while the Respondent has preferred not to respond to the Complaint or the Center's communications with regard to the Language of Proceedings even though communicated in Turkish and in English.

The date scheduled for the issuance of the Panel's decision was August 1, 2010.

4. Factual Background

The Complainant is a widely known Turkish bank. It was established in the late 40's and is now one of the largest banks in Turkey.

As shown in the Complaint, the Complainant is the registered owner of numerous AKBANK trademarks, including but not limited to Turkish, Community and International Registration service marks.

The Complainant's AKBANK trademark is in use since decades and in Turkey registered as a service mark since 1995.

Furthermore, the Complainant holds and operates its main homepage under the website “www.akbank.com”.

As evidenced by the Complaint, the disputed domain name was created on October 3, 2009 and registered in the name of the Respondent.

According to the current record, the Respondent is of Turkish origin and located in Istanbul, Turkey.

There was no content provided, when the Panel visited the Respondent's websites on July 28, 2010.

5. Parties' Contentions

A. Complainant

The Complainant argues that it is Turkey's largest bank in terms of assets (excluding market re-evaluation of subsidiaries). In 2007, the Complainant asserts that it has become the most valuable, stable and innovative bank in Turkey.

In this regard, it is alleged that the Complainant has recently introduced new business options like “smsCredit”, which allows customers to apply for a credit via their mobile phones.

The Complainant argues that its trademark AKBANK enjoys a huge reputation in Turkey and has acquired the status of a well-known trademark not only within the Turkish community.

With its Complaint, the Complainant claims the transfer of the disputed domain name.

It argues that the disputed domain name is identical or at least confusingly similar to the Complainant's trademark as it fully incorporates the Complainant's registered AKBANK trademark. The Complainant further argues that the only difference between the disputed domain name and the Complainant's trademark is that the disputed domain name additionally comprises the generic English term “mobile”. It is argued that the term “mobile” refers to cellular phones and/or mobile communication devices and shall clearly create a misleading connection to the innovative mobile phone services provided by the Complainant.

Furthermore, the Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name and has registered and used the disputed domain name in bad faith.

In this regard, the Complainant declares that it has never granted a permission or license to the Respondent to use the trademark AKBANK. In addition, the Complainant alleges that the Respondent has never used and does not intend to use the sign AKBANK in connection with a bona fide offering of goods and services.

Finally, the Complainant argues that due to the notoriety of its AKBANK trademark, the Respondent must have known the Complainant's trademark well before the registration of the disputed domain name.

B. Respondent

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

6. Discussion and Findings

According to paragraph 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 are satisfied:

(i) The domain name is identical or confusingly similar to the trademark in which Complainant has rights; and

(ii) The Respondent has no rights or legitimate interests in respect of the domain names; and

(iii) The 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 – after a critical review – accept the provided factual allegations in the Complaint as true, Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110.

In this regard, it is noted that an independent research by visiting the Internet sites linked to the disputed domain name has been performed by the Panel. The competence of the Panel to perform such independent research is in line with previous UDRP decisions, e.g., Hesco Bastion Limited v. The Trading Force Limited, WIPO Case No. D2002-1038.

A. Identical or Confusingly Similar

The Panel finds that the disputed domain name is confusingly similar to the Complainant's trademarks.

First, the Panel finds that the Complainant has satisfied the threshold requirement of having trademark rights regarding the term “akbank”. As evidenced by the Complaint, the Complainant owns a large number of AKBANK trademarks in various jurisdictions worldwide, in particular in Turkey.

Although not identical, the disputed domain name <akbankmobile.com> fully incorporates the Complainant's AKBANK trademark. The disputed domain name differs from the Complainant's trademark only by the additional generic term “mobile”, likely standing for mobile phones and/or services provided via mobile phones. The Panel finds that the implementation of such generic terms does not negate the confusing similarity between the Complainant's trademarks and the disputed domain name.

In other words, the Panel concludes that the disputed domain name which wholly incorporates the Complainant's registered trademark AKBANK is sufficient to create confusing similarity for the purposes of the Policy (c.f., Aktiebolaget v. Serbay Narin, WIPO Case No. D2009-1444; Kabushiki Kaisha Hitachi Seisakusho (d/b/a Hitachi Ltd.) v. Arthur Wangle, WIPO Case No. D2005-1105).

Hence, the Panel finds that the disputed domain name is confusingly similar to the Complainant's trademark AKBANK and therefore concludes that the first requirement under paragraph 4(a) of the Policy is fulfilled.

B. Rights or Legitimate Interests

The Panel also concludes that the Respondent has not demonstrated any right or legitimate interest in the disputed domain name.

While the burden of proof in principle rests with the Complainant, the Panel has recognized that this would result in the impossible task of proving a negative, in particular as requiring the lack of rights of legitimate interests is primarily within the sphere and the knowledge of the Respondent. Therefore, the Panel finds that the Complainant is only required to make out a prima facie case in order to meet the requirements in paragraph 4(a)(ii) of the Policy, Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455.

Here, the Panel is of the opinion that the Complainant has satisfied this requirement, while the Respondent has failed 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 non-contested prima facie evidence that the Respondent has no trademark, license or any similar right to use the disputed domain name.

In the absence of a Response by the Respondent, there is no indication in the case file that the Respondent is commonly known by the disputed domain name.

Also, the Respondent has failed to demonstrate one of the three circumstances under the Policy, paragraph 4(c) or any other evidence of a right or legitimate interest in the domain name.

In particular, the Respondent has failed to show that the Internet site linked to the disputed domain name has been used in connection with a bona fide offering of goods and services.

Furthermore, there is no indication that the Respondent is making a legitimate non-commercial or fair use of the disputed domain name without the intent for commercial gain to misleadingly divert users or to tarnish the trademark at issue.

Hence, the Panel finds that the Complainant has also satisfied the requirements of 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

The Panel is further of the opinion that the Respondent has registered and used the disputed domain name in bad faith.

The Panel is fully aware of the notoriety and reputation of the Complainant's trademark AKBANK in Turkey. The Panel believes that the Respondent must have known of the Complainant's trademark when registering the disputed domain name at the end of 2009. This is particularly likely as the Respondent is located in Turkey.

It rather appears that the Respondent has registered the disputed domain name purely for the purpose of creating a connection with the Complainant's mobile phone banking services and website “www.akbank.com”.

In essence, the Panel cannot conceive of any good faith use of the domain name by the Respondent and finds that the Respondent's lack of Response further supports the overall impression that it has registered the disputed domain name in bad faith, Awesome Kids LLC and/or Awesome Kids L.L.C. v. Selavy Communications, WIPO Case No. D2001-0210.

In the light of the findings above, the Panel is convinced that the disputed domain name was registered and used in bad faith and that the Complainant has satisfied the third element of the Policy, namely paragraph 4(a)(iii) of the Policy.

7. 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 <akbankmobile.com> be transferred to the Complainant.

Kaya Köklü
Sole Panelist

Dated: August 1, 2010