Yapi ve Kredi Bankasi A.S v. Burak Balibey

WIPO Arbitration

and Mediation Center

ADMINISTRATIVE

PANEL DECISION

Yapi ve Kredi Bankasi A.S v. Burak Balibey

Case No. D2006-0571

1. The Parties

Complainant is Yapi ve Kredi Bankasi A.S, Istanbul, Turkey, represented by Istanbul Patent & Trademark Consultancy Ltd., Turkey.

Respondent is Burak Balibey, Ankara, Turkey.

2. The Domain Name and Registrar

The disputed domain name <vadaaa.com> is registered with DSTR Acquisition

VII, LLC d/b/a Dotregistrar.com.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 5, 2006. On May 8, 2006, the Center transmitted by email to DSTR Acquisition VII, LLC d/b/a Dotregistrar.com a request for registrar verification in connection with the domain name at issue. On May 17, 2006, DSTR Acquisition VII, LLC d/b/a Dotregistrar.com transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that 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 Respondent of the Complaint, and the proceedings commenced on May 30, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was June 19, 2006. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on June 23, 2006.

The Center appointed Massimo Introvigne as the sole

panelist in this matter on June 29, 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.

4. Factual Background

Complainant is a leading Turkish bank. “Vadaaa” (also spelled “Vadaa” and “Vadaaaaa”) is the name of a character, a purple frog, created by Complainant for its advertising campaigns relating to its credit card services. Although Vadaaa in this precise form is not registered as a trademark, Complainant is the owner of a Turkish trademark registration, dating back to June 30, 2004, for “VADAAAAA! YAPI KREDI” (logo). Complainant has documented an extensive use of the character and name “Vadaaa” in its advertising campaigns, both in Turkey and internationally.

Respondent has provided, according to documents supplied

by Complainant, false address information, but there is enough evidence to indicate

that he is in fact located in Turkey.

5. Parties’ Contentions

A. Complainant

Complainant argues that:

- The domain name <vadaaa.com> is identical to the name of its character Vadaaa, and confusingly similar with “Vadaaaaa!”, the “core” part of its Turkish trademark registration.

- Respondent has no rights or legitimate interest in respect of the domain name.

- As a Turkish citizen, he should have been aware of the character Vadaaa and the large advertising campaign connected with this character; hence, he registered the domain name in bad faith.

- Providing false address information is further evidence of Respondent’s bad faith.

- The domain name is used in bad faith through “passive holding”, i.e. without maintaining a Web site associated with it.

B. Respondent

Respondent did not reply to Complainant’s contentions.

6. Discussion and Findings

A. Identical or Confusingly Similar

That Complainant has rights in the name “Vadaaa”

on the basis of copyright in the character and use as a common law service mark,

and that “Vadaaa” or even “Vadaa” would be at any rate

confusingly similar with the registered trademark “VADAAAAA! YAPI KREDI”

has already been established by the Panel in the quite similar case Yapi

Ve Kredi Bankasi A.S. v. Mr. Oguzhan Sakaayar, WIPO

Case No. D2005-0805, dealing with the domain names <vadaa.com> and

<vadaa.net>.

In this case, the confusing similarity is even more obvious. Complainant clearly prevails on this point.

A. Rights or Legitimate Interests

Complainant has established a prima facie case that Respondent has no right or legitimate interest in the domain name, a case which Respondent has not rebutted. Respondent (which, inter alia, has not answered the Complaint) has not proven any right, legitimate interest, or non-commercial fair use of the domain name.

Based on evidence in the case file, the Panel finds that Respondent has no rights or legitimate interests in the domain name.

B. Registered and Used in Bad Faith

There is strong evidence that the domain name has

been registered in bad faith. Respondent is a Turkish citizen and the promotional

campaign centered around the character “Vadaaa” is widely known

in Turkey. The fact that Respondent has provided a false address and telephone

number, while not an express ground of bad faith under paragraph 4(b), has been

widely recognized by Panels as a further indication of bad faith: see Grupo

Televisa, S.A., Televisa, S.A. de C.V., Estrategia Televisa, S.A. de C.V., Videoserpel,

Ltd. v. Party Night Inc., a/k/a Peter Carrington, WIPO

Case No. D2003-0796; Wachovia Corporation v. Peter Carrington, WIPO

Case No. D2002-0775; Kurtsan Ilaçlari A.S. v. Ismail Ahmet Tokcan/Nedim

Aya, WIPO Case No. D2006-0168; and many others.

As for use in bad faith, the landmark decision Telstra

Corporation Limited v. Nuclear Marshmallows, WIPO

Case No. D2000-0003 on “passive holding”, stated that keeping

a domain name unused can be a form of use in bad faith if other indications

of bad faith exist. That decision has been confirmed by a large number of decisions

in various UDRP proceedings, and the Panel sees no reason to change this by

now well-established case law. In this case, the fact that Respondent is located

in Turkey, where Complainant is located and where Complainant’s trademark

is widely known, and that there is no evidence on the record indicating that

Respondent is using, or preparing to use, the domain name in good faith, lead

the Panel to conclude that Respondent has registered and is using the domain

name 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 Panel orders that the domain name <vadaaa.com> be transferred to Complainant.

Massimo Introvigne

Sole Panelist

Dated: July 6, 2006