WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Denizbank A.S. v. Registration Private, Domains By Proxy, LLC / Kader Yilmaz
Case No. D2012-0074
1. The Parties
The Complainant is Denizbank A.S. of Istanbul, Turkey, represented by Istanbul Patent & Trademark Consultancy Ltd., Turkey.
The Respondent is Registration Private, Domains By Proxy, LLC of Scottsdale, Arizona, United States of America / Kader Yilmaz of Antalya, Turkey.
2. The Domain Name and Registrar
The disputed domain name <denizbank.xxx> is registered with Go France Domains, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 17, 2012. On January 18, 2012, the Center transmitted by email to Go France Domains, Inc. a request for registrar verification in connection with the disputed domain name. On January 18, 2012, Go France Domains, Inc. transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on January 20, 2012 providing the registrant and contact information disclosed by Go France Domains, Inc., and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on January 25, 2012.
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” 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 January 26, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was February 15, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 16, 2012.
The Center appointed Kaya Köklü as the sole panelist in this matter on February 20, 2012. 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 Complainant is well-known Turkish bank founded in 1938, providing a large variety of financial services since more than seventy (70) years.
The Complainant is the registered owner of more than one hundred (100) national trademarks comprising the mark DENIZBANK. The first DENIZBANK trademark registration in Turkey dates back to the year 1997. Most of the Complainant’s DENIZBANK trademarks cover protection for financial and security services.
The Complainant has also registered and operates its trademark DENIZBANK as a domain name under <denizbank.com.tr> since January 18, 2000.
The original Respondent named in the Complaint was Registration Private, Domains By Proxy, LLC, but the registrar Go France Domains, Inc. subsequently disclosed that the registrant of the disputed domain name is Kader Yilmaz of Antalya, Turkey.
Based on the current record, the disputed domain name <denizbank.xxx> was created on December 6, 2011. On December 7, 2011, the Complainant received an email by an anonymous sender which used the same email address as the Respondent’s email address in the present case, stressing the author’s willingness to sell the disputed domain name to the Complainant. Furthermore, the disputed domain name has been offered for sale on two different auction websites for a price starting from USD 28,000 or YTL 38,500, respectively.
5. Parties’ Contentions
A. Complainant
The Complainant argues that the disputed domain name is identical to the Complainant’s well-known trademark DENIZBANK. The Complainant believes that the Respondent deliberately registered the disputed domain name being well aware of the Complainant’s trademark rights.
Furthermore, the Complainant asserts that the Respondent has no rights or legitimate interests in the disputed domain name. It is stated that the Complainant has never granted a license, consent or any other rights by which the Respondent would have been entitled to register or use the disputed domain name <denizbank.xxx>.
In addition, the Complainant believes that the Respondent has never used and does not intend to use the disputed domain name with a bona fide offering of goods or services. The Complainant rather asserts that the disputed domain name was registered for the sole purpose of selling it to the Complainant. In this regard, the Complainant is convinced that the author of the sales offer received by the Complainant via email on December 7, 2011 is the Respondent itself.
The Complainant has no doubts that the Respondent must have known the Complainant and its trademark DENIZBANK well before the registration of the disputed domain name, and hence must have registered and uses the disputed domain name in bad faith.
All in all, the Complainant believes the Respondent to be a typical cybersquatter.
B. Respondent
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Language of the Proceedings
In accordance with the Rules, paragraph 11, 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).
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 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 as appropriately accept the provided reasonable factual allegations in the Complaint as true. Belupo d.d. v. WACHEM d.o.o.,
WIPO Case No. D2004-0110.
Further is noted that the Panel has taken note of WIPO Overview of 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 there is an identity or confusing similarity between the disputed domain name and the Complainant’s trademark DENIZBANK.
First, the Panel confirms that the Complainant has satisfied the threshold requirement of having trademark rights regarding its mark and trade name DENIZBANK. The Complainant has provided sufficient evidence demonstrating that for many years it is the registered owner of a large number of DENIZBANK trademarks since 1997.
Second, the Panel finds that the disputed domain name is identical to the Complainant’s trademark DENIZBANK. The disputed domain name is an identical adoption of the registered trademark DENIZBANK and does not incorporate any amendments or additions.
The mere addition of the “.xxx” TLD has no distinguishing effect and may as a general principle not to be considered within the assessment of identity or confusing similarity between a disputed domain name and a trademark (in line with prior UDRP panels concerning the use of other gTLDs within disputed domain names, 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 its assessment, the Panel has taken into account that some Internet users may falsely associate the disputed domain name with a pornographic website due to the use of the “.xxx” TLD, which primarily should indicate explicitly sexual content. Given the notoriety of the Complainant’s trademark in Turkey, any use of a domain name incorporating the Complainant’s trademark DENIZIBANK will most likely result in confusion among Internet uses with respect to the Complainant’s long existing trademark rights (cf.Deutsche Bank Aktiengesellschaft v. New Work TV Tickets Inc., WIPO Case No. D2001-1314).
Hence, the Panel is satisfied that the Complainant has met the requirements under paragraph 4(a) of the Policy.
B. Rights or Legitimate Interests
The Panel further finds that the Respondent has not demonstrated 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 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 responsibility shifts to the Respondent to show that it has rights or legitimate interests in the disputed domain name 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.
The Panel finds that the Complainant has satisfied this requirement, while the Respondent has failed to file any evidence or 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 trademark, license or any similar rights to use the Complainant’s mark in the disputed domain name.
In the absence of a Response by the Respondent, there is also no indication in the current record that the Respondent is commonly known by the disputed domain name, particularly given that the disputed domain name has been registered just recently in December 2011. Also, there are neither contact details of the Respondent or any other persons nor an imprint available under the website linked to the disputed domain name. Hence, there is virtually no option to associate a concrete person or company with the disputed domain name.
In addition, 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. Especially, the Respondent has failed to show that the disputed domain name has been used in connection with a bona fide offering of goods or services.
Finally, there is also no indication that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name without the intent for commercial gain to misleadingly divert users or to tarnish the DENIZBANK trademark. Quite the contrary, it appears that the Respondent offered the disputed domain name for sale only one day after its registration. The Panel finds that this constitutes further evidence of the Respondent’s ill intention to make significant commercial gain by trying to resell the disputed domain name to the Complainant. This cannot be considered as a legitimate noncommercial or fair use of the disputed domain name.
Hence, the Panel concludes that the Complainant has also satisfied the requirements of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides a nonexhaustive list of circumstances, which are deemed to be evidence of the registration and use of a domain name in bad faith. This list in particular covers circumstances indicating that a respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the 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 documented out-of-pocket costs directly related to the domain name.
The Panel is convinced that the Respondent has registered and is using the disputed domain name in bad faith.
The Panel is well aware of the reputation and recognition of the Complainant’s trademark DENIZBANK in Turkey. The Panel believes that the Respondent must have known this trademark when the disputed domain name was created on December 6, 2011.
This assessment is in particular likely as the disputed domain name was registered many years after the Complainant’s trademark DENIZBANK has become registered and broadly recognized in Turkey.
Another indication for bad faith registration and use is that the disputed domain name is fully identical to the Complainant’s trademark DENIZBANK. The Respondent has not even bothered to incorporate amendments or additions to the disputed domain name in order to eliminate the interference with the trademark DENIZBANK.
Finally, bad faith registration and use is further demonstrated by the fact that the disputed domain name has been offered for sale, first via email to the Complainant right the day after its registration, and second on two different auction websites at a price of USD 28,000 and YTL 38,500. The Panel is convinced that these offers originate from no one else than the Respondent. The requested amount apparently exceeds out-of-pocket costs directly related to the disputed domain name as mentioned in paragraph 4(b)(i) of the Policy and demonstrates once again the Respondent’s ill intention to make unlawful commercial gain by trying to resell the disputed domain name to the Complainant.
Overall, the Panel finds that the above demonstrates a typical cybersquatting case.
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 <denizbank.xxx> be transferred to the Complainant.
Kaya Köklü
Sole Panelist
Dated: February 26, 2012
