WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Kimse Yok Mu Dayanışma Ve Yardimlaşma Derneği v. Ali Murat (Murat Değirmen)

Case No. D2011-1705

1. The Parties

The Complainant is Kimse Yok Mu Dayanişma Ve Yardimlaşma Derneği of Istanbul, Turkey, represented by Ersin Bölükbaş, Turkey.

The Respondent is Ali Murat (Murat Değirmen) of Istanbul, Turkey.

2. The Domain Name and Registrar

The disputed domain name <kimseyokmu.org> is registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 7, 2011. On October 7, 2011, the Center transmitted by email to Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com a request for registrar verification in connection with the disputed domain name. On October 9, 2011, Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com transmitted by email to the Center its verification response. On October 12, 2011, the Center transmitted by email to Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com a further request for registrar verification in connection with the disputed domain name. Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com transmitted by email to the Center on October 12, 2011 its complete 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 October 17, 2011. In accordance with the Rules, paragraph 5(a), the due date for the Response was November 6, 2011. The Respondent transmitted to the Center an email communication on October 12, 2011, before the notification of the Complaint and Commencement of Administrative Proceedings.

The Center appointed Selma Ünlü as the sole panelist in this matter on November 11, 2011. 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

The facts stated in the Complaint are as follows:

(1) Before becoming an association in 2002, the Complainant hosted a TV programme named “Kimse Yok Mu?” broadcasted as part of a humanitarian campaign for natural disasters. Also the Complainant states that this TV programme was first broadcasted after an earthquake in Turkey on August 17, 1999.

(2) In 2002, Kimse Yok Mu Dayanışma ve Yardımlaşma Derneği (Kimse Yok Mu Association) was founded.

(3) In 2004, the Complainant became a non-governmental organisation.

(4) On January 19, 2006, the Complainant became a Public Interest Association by Cabinet Decree 2006-9982.

(5) The Complainant is the owner of the KİMSE YOK MU trademark dated December 23, 2005 which is registered before Turkish Patent Institute.

(6) The domain name <kimseyokmu.org.tr> was registered by the Complainant on March 14, 2006.

(7) The disputed domain name <kimseyokmu.org> was registered in the name of the Respondent on November 6, 2005.

(8) During the correspondence between the Respondent and the Complainant, the Respondent sent an email offering the transfer of the disputed domain name in return for 5,000 Turkish Liras.

The Panel’s observation of the case file reveals the following:

(1) It is understood that the “www.kimseyokmu.org.tr” is the official website of the Kimse Yok mu Association and it is a well-known webpage for making donations in Turkey.

(2) Also, when the Panel visited the webpage hosted at the disputed domain name on November 21, 2011, it displayed the sentence: “This domain name is for sale” and provided an email address for prospective buyers to contact.

(3) The disputed domain name was registered under a false identity and the given contact details do not refer to a real address and telephone number. However, as it is understood from the email sent to the Center on October 12, 2011, the registrant of the disputed domain name is Ali Murat (Murat Değirmen) who appears to be located in Turkey. The email address used to send an email to the Complainant regarding the transfer of the disputed domain name was the same email address used to send an email communication to the Center on October 12, 2011.

5. Parties’ Contentions

A. Complainant

The Complainant requests the Panel to issue a decision transferring the disputed domain name to the Complainant on the following grounds:

(i) The disputed domain name is identical to the trade and service marks in which the Complainants has rights;

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

(iii) The disputed domain name was registered and is being used in bad faith.

(i) Identity or Confusingly Similarity

The Complainant states that its trademark has been used since 1999 and globally recognised since 2004. The Complainant also indicates that it has been involved in international issues by providing humanitarian aid, aid for health, disasters and education. The Complainant states that it has used its trademark KİMSE YOK MU extensively prior to its registration before TPI in 2005, as a TV programme name, as an association name and as a non-governmental organisation name.

The Complainant emphasizes that the disputed domain name is identical to the Complainant’s trademark. At this point, the Complainant refers to Bayerische Motoren Werke AG, Sauber Motorsport AG v. Petaluma Auto Works, WIPO Case No. D2005-0941 and states that where the disputed domain name is incorporating the Complainant’s trademark wholly, the disputed domain name is identical or confusingly similar to the Complainant’s trademark.

(ii) Rights or Legitimate Interests

The Complainant argues that the Respondent does not use the disputed domain name in connection with a bona fide offering goods or services and the Respondent is not making legitimate noncommercial or fair use.

Further, the Complainant indicates that the disputed domain name does not resolve to an active website. To the contrary, the disputed domain name resolves to a website whereby the Respondent offers the domain name for sale. Therefore, the Complainant states that Internet users may be confused about the source identity of the disputed domain name, and may think that the Complainant or someone associated with the Complainant is no longer an operating organisation and has since offered to sell the disputed domain name.

Moreover, the Complainant states that the Respondent is aware of the reputation of the Complainant and although the disputed domain name was registered before the Complainant’s trademark registration, the Complainant relies on its rights obtained to the trademark through extensive usage of the trademark that predates the registration date of the disputed domain name.

The Complainant refers to Medisite S.A.R.L. v. Intellisolve Limited., WIPO Case No. D2000-0179 and states that the Respondent is not commonly known by the domain name and has not acquired any trademark rights in the name. Also, the Complainant indicates that the Respondent does not have any rights or legitimate interest since the Complainant did not give any licence or permission to the Respondent.

(iii) Registered and Used in Bad Faith

The Complainant alleges that the notoriety of its trademark has been established in Turkey since 1999 and globally since 2004. Therefore, the Respondent is aware or should have known the Complainant’s rights in the phrase, “kimseyokmu” at the time of registration. Thus, the Complainant refers to Telstra Corporation Limited. v. Nuclear MarshmallowsWIPO Case No. D2000-0003 and states that “the Respondent must have been aware that any legitimate commercial use of the domain name would result in a violation of the Complainant’s trademark rights”.

Further, the Complainant states that the disputed domain name hosts a webpage listing a number of words associated with the services provided by the Complainant. At the end of these associated words it is stated that “this domain name is for sale” and provides an email address. Therefore, the Complainant states that the domain name was registered for the purpose of selling, renting or transferring the domain name to the owner of the trademark or a competitor of the Complainant.

Moreover, the Complainant alleges that after it has requested the Respondent to transfer the disputed domain name (Annex F to the Complaint), the Respondent sent an email offering the disputed domain name for sale in return for 5000 Turkish Liras. Therefore the Complainant refers to CBS Broadcasting, Inc. v. Gaddoor Saidi, WIPO Case No. D2000-0243 and states that an offer to sell the disputed domain name for valuable consideration in excess of out-of-pocket costs establishes the disputed domain name has been registered and being used in bad faith.

B. Respondent

The Respondent sent an email to the Center on October 12, 2011, the content of which was incomprehensible. However, the Respondent did not send a proper reply to the Complainant’s contentions after the formal notification of the Complaint on October 17, 2011.

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 is satisfied:

(i) The disputed domain name is identical or confusingly similar to the 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 has the burden of proving that all of these requirements are fulfilled.

A. Identical or Confusingly Similar

The test for identical or confusing similarity under the Policy, paragraph 4(a)(i) is limited in scope to a direct comparison between the Complainant’s trademark and the textual string which comprises the disputed domain name. In this case, the Complainant has demonstrated registered trademark rights in the mark KİMSE YOK MU. The disputed domain name consists of only the phrase “kimseyokmu”.

The disputed domain name consists of only “kimseyokmu” phrase as a core element. Considering that the core element of the trademark of the Complainant is also the “kimseyokmu” phrase, it is clear that the disputed domain name is similar to the Complainant’s registered trademark. The Complainant’s uses of the phrase “kimseyokmu” as a sole and core element have continued for many years.

In similar cases, UDRP panels have found that neither the beginning of the URL, nor the TLD have any source indicating significance and do not remove the likelihood of confusion between a trademark and a disputed domain name incorporating said trademark. See, The Forward Association, Inc., v. Enterprises Unlimited, NAF claim FA0008000095491).

Also, Panel refers to Dr. Ing. h.c. F. Porsche AG v. Takeda, Jim,WIPO Case No. D2002-0998 where the Panel held that “Although the “org” TLD may have been intended originally for non-trading organisations, its use is not restricted to such organizations and many Internet users are not aware of the original purpose of the different TLDs. The Panel has no doubt that the ".org" suffix would not dispel confusion caused by the use of the Complainant’s well-known mark.” Consequently, the Panel believes that such inference may be applied to the present case and there is no doubt that the disputed domain name is confusingly similar to the Complainants’ mark KİMSE YOK MU.

That being so, the Panel finds that the disputed domain name is identical to a trademark in which the Complainants has rights.

Based on the evidences submitted by the Complainant concerning the trademark registrations of the KİMSE YOK MU, the Panel finds that the Respondent registered the disputed domain name before the registration of the Complainant’s trademark.

At this point the Panel refers to Stoneygate 48 Limited and Wayne Mark Rooney v. Huw Marshall, WIPO Case No. D2006-0916 where it was stated that “the Respondent argues that the Complainants’ rights should be ignored because they did not exist at the date of registration of the Domain Name. The Panel refers to the passage in paragraph 1.4 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions (accessible on the WIPO website), which reads: ‘1.4 Does the complainant have UDRP-relevant trademark rights in a mark that was registered, or in which the complainant acquired unregistered rights, after the disputed domain name was registered? Consensus view: Registration of a domain name before a complainant acquires trademark rights in a name does not prevent a finding of identity or confusing similarity. The UDRP makes no specific reference to the date of which the owner of the trade or service mark acquired rights.’”

In this case also, the Panel adopts the consensus view and stands by the finding above that the disputed domain name is identical to a trademark in respect of which the Complainant has rights.

Consequently, the first requirement under paragraph 4(a) of the Policy satisfied.

B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy states that, a respondent may establish its rights or legitimate interests in a domain name, among other circumstances, by showing any of the following elements:

“(i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or

(ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or

(iii) You [Respondent] are making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.”

The burden of proof is on the Complainant to demonstrate a prima facie case that the Respondent does not have rights or legitimate interests in the disputed domain name. Once the Complainant has made out a prima facie case, then the Respondent may, by, inter alia, showing one of the above elements, prove rights or legitimate interests in the disputed domain name.

The evidence submitted, including the trademark registration certificate, and the wide range of usage, clearly proves that the Complainant has trademark rights and earlier and lawful use in KİMSE YOK MU. Therefore, the Panel finds on the current record that the Complainant has proved rights in the KİMSE YOK MU mark and also prima facie established that the Respondent does not have rights or legitimate interests in the disputed domain names for the purposes of the Policy.

In this sense, based on the evidence, the Panel holds that the use of the KİMSE YOK MU mark has not been authorized or licensed to the Respondent. Additionally, the Panel holds the disputed domain name does not obviously correspond to the Respondent’s name or a trade name by which it has become commonly known.

The Panel finds that the Respondent has not provided evidence of the circumstances of the type specified in paragraph 4(c) of the Policy, or of any other circumstances giving rise to a right to or legitimate interest in the disputed domain name. Thus, the Panel is of the opinion that the Respondent has failed to furnish evidence to show that it has rights or legitimate interests in the disputed domain name.

Hence, as the rights or legitimate interests of the Respondent have not been duly proven under paragraph 4(c)(ii) of the Policy, the Panel concludes that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy sets out four, non-inclusive, circumstances that, if found by the Panel to be present, shall be evidence of the registration and use of the disputed domain name in bad faith:

(i) circumstances indicating that the Respondent has registered or has acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the disputed domain name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of the Respondent’s documented out-of-pocket costs directly related to the disputed domain name; or

(ii) the Respondent has registered the disputed domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the Respondent has engaged in a pattern of such conduct; or

(iii) The Respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) By using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or location or of a product or service on respondent’s website or location.

According to the evidence filed in this case, it is understood that further to the request of the Complainant regarding the transfer of the domain name, the Respondent offered to transfer the disputed domain name in return for payment by the Complainant of 5000 Turkish Liras. Additionally, there is no evidence showing that the Respondent has used the disputed domain name <kimseyokmu.org> in connection with a bona fide offering of goods or services. Furthermore, when the Panel visited the disputed domain name on November 21, 2011, it was written on the webpage hosted at the disputed domain name that “This domain name is for sale” and provided an email address to contact.

As mentioned above in Section A, the disputed domain name was registered before the Complainant’s trademark. (I.e. the disputed domain name was registered in November 2005, and the trademark was registered in December 2005). However, the Panel notes that the Complainant has been offering its services since 2002, well before the disputed domain name was registered. The Panel refers to paragraph 3.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview, 2.0”).

Based on this submission and the facts, the Panel considers that the disputed domain name was registered primarily for the purpose of transferring the domain name registration to the owner of the trademarks for valuable consideration in excess of the domain name registrant’s out-of-pocket costs. See e.g., Telefonaktiebolaget L.M Ericsson v. iNuntius Inc., WIPO Case No. D2005-0732. The circumstances indicate that the Respondent has registered the disputed domain name primarily for the purpose of selling the disputed domain name.

Additionally, by consideration of the foregoing, the Panel is of the opinion that due to the extensive and intensive usage of such mark, as well as the above-mentioned activities of the Complainant, the Respondent, who appears to be located in Turkey, cannot be taken to be unaware of their existence. See e.g., Ebay Inc. v. Wangming, WIPO Case No. D2006-1107; General Electric Company v. CPIC NET and Hussain Syed, WIPO Case No. D2001-0087.

In relation to the contact details of the Respondent, it is understood that the contact address is false since no postal code of the districts of Istanbul start with 80800. Therefore, the Panel refers to Ticketmaster Corporation v. Dmitri Prem,WIPO Case No. D2000-1550 where the panel held that “[i]n the absence of explanation, the omission of significant information may be taken to amount to bad faith in securing a domain name registration.” Likewise, in various UDRP decisions, false contact information provided by the Respondent may constitute bad faith. See also Quixtar Investments, Inc. v. Scott A. Smithberger and QUIXTAR-IBO,WIPO Case No. D2000-0138.

As a summary:

(i) the Respondent did not offer any counter-argument and remained in default,

(ii) the Complainant’s trademark has a strong reputation and is well-known in Turkey,

(iii) the Respondent who appears to be located in Turkey should have been aware of the Complainant and its activities,

(iv) the Respondent tried to sell the domain to the Complainant and to the third parties,

(v) the Respondent has not proven any good faith use; instead, he has actively provided false contact details which constitutes a breach of the Registration Agreement between the Respondent and the Registrar, as well and offered to sell the disputed domain name for a considerable amount.

Considering the above, the Panel finds that the disputed domain name was registered and used in bad faith. Therefore, the Complainants have established the third element under 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 disputed domain name <kimseyokmu.org> be transferred to the Complainant.

Selma Ünlü
Sole Panelist
Dated: November 24, 2011