Akbank Turk A.S. v. DR. Mehmet Kahveci

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Akbank v. Dr. Mehmet Kahveci

Case No. D2001-1488

1. The Parties

The Complainant in this administrative proceeding is Akbank Turk A.S., a bank

organized and existing under the laws of Turkey, with its principal place of

business located at Sabanci Center 80745, Istanbul, Turkey.

The Respondent is Dr. Mehmet Kahveci, 177B State Street, McKinley Building,

Boston, Massachusetts, U.S.A.

2. The Domain Name and Registrar

The disputed domain name is <akbank.com>.

The Registrar of the domain name is Network Solutions Inc., 505 Huntmar Park

Drive, Herndon, Virginia, U.S.A.

3. Procedural History

Issuance of Complaint

3.1 On December 24, 2001, Complainant submitted a Complaint to the World Intellectual

Property Organization Arbitration and Mediation Center ("Center")

pursuant to the Uniform Domain Name Dispute Resolution Policy ("UDRP")

implemented by the Internet Corporation for Assigned Names and Numbers ("ICANN")

on October 24, 1999, and under the rules for the UDRP implemented by ICANN on

the same date ("UDRP Rules"). The Complaint and exhibits were received

by the Center via e-mail on December 24, 2001, and in hardcopy on December 28,

2001. The Center acknowledged receipt of the Complaint on December 28, 2001.

Confirmation of registration details

3.2 On January 7, 2002, a Request for Registrar Verification was transmitted

to Network Solutions, Inc. In an e-mail to the Center dated January 11, 2002,

Network Solutions confirmed that it is the Registrar of the domain name <akbank.com>.

Notification of Respondent

3.3 Having verified that the Complaint satisfied the formal requirements of

the UDRP and the UDRP Rules, the Center sent on January 15, 2002, a Notification

of Complaint and Commencement of Administrative Proceeding to the Complainant’s

authorized representative by e-mail; to the Respondent by post, facsimile and

e-mail (two addresses). The Center advised the Respondent that the Response

was due no later than February 4, 2002.

The transmission by facsimile and to the e-mail address gr8care@aol.com failed.

The other two methods of communication were successful.

Filing of Response

3.4 No Response was filed by the Respondent within the time specified in the

Notification of Complaint. A Notification of Respondent Default was sent by

the WIPO Center to the Respondent, and copied to the Complainant, by e-mail

and courier on February 7, 2002. As of the date of this decision, no Response

had been filed by the Respondent.

Constitution of Administrative Panel

3.5 Having received no Response from the Respondent within the specified time

in the Notification of Complaint, the WIPO Center proceeded to appoint a single-member

Panel and invited Dr. Torsten Bettinger to serve as a Panelist in this Administrative

Proceeding.

Having received the Panelist’s Declaration of Impartiality and Independence,

the Center issued a Notification of Appointment of Administrative Panel on February 20,

2002, and set a decision date, with the Panelist’s deadline for issuing a decision

of March 6, 2002. The Center transmitted the case file to the Panelist on February

20, 2002.

4. Factual Background

The Complaint asserted, and provided evidence in support of the following facts:

The Complainant is well-known as "AKBANK" and is now the largest

bank in Turkey in terms of assets. The Complainant has been ranked by the

Banker Magazine in 2000 among the top 500 banks in the world in terms

of asset size and shareholders' equity. In addition, it was awarded 'Best Bank

in Turkey' by Euromoney Magazine in 1992, 1993, 1998 and 2001(Annex 3).

The Complainant operates through its Head Office in Istanbul and in 13 regional

offices throughout Turkey and offices in other countries of the world.

The Complainant has provided documentary evidence of the following trademark

registration registered with the Turkish Patent Office;

Registration No:

Service Marks:

Intl. Classes

Registration Dates:

180391

AKBANK

36

24.06.1996

181151

AK (Device mark)

36

24.06.1996

180358

AK

36

24.06.1996

The Complainant has also the following international registrations registered

under the Madrid Protocol:

Int. Registration

No:

Service Marks:

Intl. Classes

Registration Dates:

750014

AKBANK

36

19.10.2000

750065

AK

36

19.10.2000

The Respondent is the registrant of the domain name <akbank.com>. The

domain was registered on September 12, 1999.

According to Network Solution’s WHOIS database, the Respondent is Dr. Mehmet

Kahveci, 177B State Street McKinley Building, Boston, MA 02109 U.S.A.

The Respondent has no license or any other permission to use the name "AKBANK".

At present the domain name <akbank.com> does not resolve to a website

or other on-line presence.

5. Parties’ Contentions

A. Complainant

The Complainant asserts that (1) The domain name <akbank.com> is identical

or confusingly similar to the trademark "AKBANK" in which the Complainant

has exclusive rights; that (2) the Respondent has no rights or legitimate interests

with respect to the domain name; that (3) the domain name was registered and

is being used in bad faith.

The Complainant states that the Respondent has Turkish nationality and is a

very famous "domain name collector" in the Turkish Internet world

who owns dozens of domain name registrations almost all of which were identical

to various well-known Turkish companies’ such as

"<uki.com>, <yapi.com>, <akpa.com>, <cebitas.com>,

<cukurova.com>, <showtv.com>, <denizcilik.com>, <iktisat.com>,

<vakif.com>, <turyat.com>, <cankurtaran.com>, <profilo.com>,

<tekel.com>, <santeks.com>, <bilkont.com>, <tarmak.com>,

<orsa.com>, <ulusoy.com>, <ziraat.com>, <transturk.com>,

<yasar.com>, <tupras.com>, <ulker.com>"

The Complainant requests that the Administrative Panel issue a decision that

the domain name <akbank.com> be transferred to the Complainant.

B. Respondent

The Respondent did not file a Response to the Complaint.

6. Discussion and Findings

Pursuant to paragraph 4(a), the Complainant must prove that each of the following

three elements are present if it is to prevail:

(i) The Respondent’s "domain name is identical or confusingly similar

to a trademark or service mark in which the Complainant has rights;" and

(ii) The Respondent has "no rights or legitimate interests with respect

to the domain name;" and

(iii) The "domain name has been registered and is being used in bad faith."

a. Identical or confusingly similar (paragraph 4(a)(i))

The Respondent has registered the domain name <akbank.com>. This domain

name is identical to Complainant’s trademark "AKBANK", except that

the domain name adds the generic top-level-domain ".com".

It is well established that the specific top level of the domain name such

as ".org", ".net" or ".com" does not affect the

domain name for the purpose of determining whether it is identical or confusingly

similar (See for examples WIPO Case Nos. D2000-0135,

D2000-0429 and D2000-1400).

The addition of the generic top-level-domain (gTLD) ".com" is without

legal significance in determining similarity.

The Panel therefore concludes that the domain name is identical or confusingly

similar to a trademark or service mark in which the Complainant has prior exclusive

rights.

b. Rights or legitimate interests (paragraph 4(a)(ii))

The Respondent has not provided evidence of the type specified in paragraph

4(c) of the Policy, or any other circumstances giving rise to a right or legitimate

interest in the Domain Name. The Complainant showed that the Respondent has

neither a license nor any other permission to use the name in dispute. In the

absence of evidence brought forward by the Respondent the Panel cannot find

a legitimate interest.

The Panel therefore concludes that Respondent has no rights or legitimate interests

in the domain name <akbank.com> and that the requirement of the UDRP Paragraph

4 (a) (ii) is satisfied.

c. Bad faith (paragraph 4 (a) (iii))

The fact that the Respondent has chosen not to submit a Response is particularly

relevant to the issue of whether the Respondent has registered and is using

the domain name in bad faith. Rule 14(b) of the Uniform Rules provides that,

in the absence of exceptional circumstances, a Panel shall draw such inferences

as it considers appropriate from the failure of a party to comply with a provision

or requirement of the Uniform Rules. This Administrative Panel finds there is

no exceptional circumstances for the failure of the Respondent to submit a Response.

This Administrative Panel draws from this failure the following two inferences:

(i) the Respondent does not deny the facts which the Complainant asserts,

and (ii) the Respondent does not deny the conclusions which the Complainant

asserts can be drawn from these facts.

Nevertheless, this Administrative Panel still has the responsibility of determining

which of the Complainant’s assertions are established as facts, and whether

the conclusions asserted by the Complainant can be drawn from the established

facts (see WIPO Case No. D2000-0438, Inter-IKEA

Systems B.V. v. Hoon Huh).

The Complainant provided evidence of facts, which are clearly relevant to the

issue of whether the Respondent registered and is using the domain name in bad

faith.

Rule 4 (b) of the Policy specifies the circumstances that evidence registration

in bad faith and provides that this can be asserted, if the domain was registered

or acquired primarily for the purpose of selling, renting, or otherwise transferring

the domain name registration (Rule 4 (b) (i)) to the Complainant or to prevent

the Complainant from reflecting its trademark in a corresponding domain name,

provided that the owner of the domain name has engaged in a pattern of such

conduct (Rule 4 (b) (ii)).

aa) The Panel has no doubt that these prerequisites for cancellation or transfer

of the domain name are fulfilled.

The Complainant’s trademark is long established and widely known. In the absence

of evidence or even an assertion by the Respondent to the contrary the Panel

accepts as fact that the Respondent registered dozens of domain names that are

identical to various well-known Turkish companies’ names and registered the

domain name <akbank.com> knowing that it was the trademark of the Complainant.

When this pattern of conduct and knowledge is combined with the fact that the

Respondent has not right or legitimate interest in the domain name there is

ground on which the Panel can conclude that that the objective was to sell the

domain name to the Complainant for a valuable consideration well in excess of

the Respondent’s out-of-pocket expenses or in order to prevent the Complainant

from reflecting its trademark "AKBANK" in a corresponding domain name.

bb) The fact that the domain is inactive does not prevent from this assertion.

On the contrary, inaction itself can constitute "use in bad faith",

where the Domain Name comprises a name which can only sensibly refer to the

Complainant or where there is no obvious possible justification for the selection

of the Domain Name (see WIPO Cases No. D2000-1074

and D2000-0003).

cc) The Panel therefore concludes that Respondent registered and is using the

domain name <akbank.com> in bad faith and that the requirement of the

UDRP Paragraph 4 (a) (iii) is satisfied.

7. Decision

The Panel thus decides that:

1) the domain name <akbank.com> is confusingly similar to the trademark

in which the Complainant has rights;

2) The Respondent has no rights or legitimate interest with respect to the

domain name <akbank.com>;

3) the domain name <akbank.com> has been registered and used in bad faith

by the Respondent.

Pursuant to paragraph 4(i) of the Policy and pursuant to paragraph 15 of the

Rules, the Panel requires that the Registrar, Network Solutions Inc., transfer

the domain name <akbank.com> to the Complainant.

Dr. Torsten Bettinger

Sole Panelist

Dated: March 6, 2002

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