DECISION

 

Otokar Otobus Karoseri A. S. v. Service Pro

Claim Number: FA0110000101268

 

PARTIES

Complainant is Otokar Otobus Karoseri A.S., Istanbul, TURKEY (“Complainant”) represented by Dilke Ustun, of Istanbul Patent & Trademark Consultancy Ltd.  Respondent is Service Pro, Hong Kong (“Respondent”).

 

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <otokar.com>, registered with Tucows.

 

PANEL

The undersigned certifies that he has acted independently and impartially and to the best of his knowledge, has no known conflict in serving as Panelist in this proceeding.

 

Hon. Ralph Yachnin as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on October 24, 2001; the Forum received a hard copy of the Complaint on November 1, 2001.

 

On Novenber 13, 2001, Tucows confirmed by e-mail to the Forum that the domain name <otokar.com> is registered with Tucows and that Respondent is the current registrant of the name.  Tucows has verified that Respondent is bound by the Tucows registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).

 

On November 15, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of December 5, 2001 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to postmaster@otokar.com by e-mail.

 

Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

 

On December 18, 2001, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Ralph Yachnin as Panelist.

 

Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) “to employ reasonably available means calculated to achieve actual notice to Respondent.”  Therefore, the Panel may issue its Decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum’s Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from Respondent.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from the Respondent to the Complainant.

 

PARTIES’ CONTENTIONS

A. Complainant

The <otokar.com> domain name is confusingly similar to Complainant's OTOKAR mark.

 

Respondent has no rights or legitimate interests in the disputed domain name.

 

Respondent registered the disputed domain name in bad faith.

 

B. Respondent

Respondent failed to submit a Response.

 

FINDINGS

Since 1963, Complainant has used the OTOKAR mark in relation to its manufacture of intercity buses and armored cars.  Complainant has a trademark registered with the Turkish Patent Office in force as early and 1986.  Complainant is the well-known in Turkey as the first intercity bus manufacturer of that country revolutionizing the Turkish intercity bus industry.  Complainant's armored cars and military Land Rovers are also well-renowned and used the Turkish Air, Land, and Naval forces. 

 

Respondent registered the disputed domain name on July 3, 2001.  There has never been an active website at <otokar.com>.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to “decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”

 

In view of Respondent's failure to submit a Response, the Panel shall decide this administrative proceeding on the basis of the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules.

 

Paragraph 4(a) of the Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:

 

(1) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

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

(3) the domain name has been registered and is being used in bad faith.

 

Identical and/or Confusingly Similar

Complainant, through its Turkish registration and use has established that it has rights in the OTOKAR mark.  Furthermore, Respondent's <otokar.com> domain name is identical to Complainant's mark because it merely adds the top-level indicator ".com" to Complainant's mark.  It has been established that the addition of a top-level indicator does not create a distinct mark capable of overcoming a claim of identical or confusing similarity.  See Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar); see also Little Six, Inc., v. Domain For Sale, FA 96967 (Nat. Arb. Forum Apr. 30, 2001) (finding that the <mysticlake.net> is plainly identical to Complainant’s MYSTIC LAKE trademark and service mark).

 

The Panel finds that Policy ¶ 4(a)(i) has been satisfied.

 

Rights or Legitimate Interests

Respondent has failed to come forward with a Response and therefore it is presumed that Respondent has no rights or legitimate interests in the disputed domain name.  See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names).

 

Furthermore, when Respondent fails to submit a Response the Panel is permitted to make all inferences in favor of Complainant.  See Talk City, Inc. v. Robertson, D2000-0009, (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint”).

 

There is no evidence on the record, and Respondent has not come forward to establish that it is commonly known by the <otokar.com> domain name pursuant to Policy ¶ 4(c)(ii).  See Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb. 5, 2001) (finding no rights or legitimate interests because Respondent is not commonly known by the disputed domain name or using the domain name in connection with a legitimate or fair use); see also CBS Broadcasting, Inc. v. LA-Twilight-Zone, D2000-0397 (WIPO June 19, 2000) (finding that Respondent has failed to demonstrate any rights or legitimate interests in the <twilight-zone.net> domain name since Complainant had been using the TWILIGHT ZONE mark since 1959).

 

There is no evidence, and Respondent does not refute, that Respondent has rights or legitimate interests in respect to the disputed domain name.  See Body Shop Int’l PLC v. CPIC NET & Hussain, D2000-1214 (WIPO Nov. 26, 2000) (finding “that on the evidence provided by the Complainant and in the absence of any submissions from the Respondents, that the Complainant has established that (i) the Respondents are not using and have not used, or are not demonstrating and have not demonstrated, an intent to use the said domain name in connection with a bona fide offering of goods or services; (ii) the Respondents are not and have not been commonly known by the said domain name; and (iii) the Respondents are not making legitimate noncommercial or fair use of the said domain name, without intending to mislead and divert consumers or to tarnish Complainant’s THE BODY SHOP trademark and service mark”).

 

The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.

 

Registration and Use in Bad Faith

The <otokar.com> domain name is identical to Complainant's mark and the Internet user will likely believe that there is an affiliation between Respondent and Complainant.  Registration of the <otokar.com> domain name despite it being identical is evidence of bad faith pursuant to Policy ¶ 4(c)(iv).  See Sony Kabushiki Kaisha v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000) (finding that bad faith registration and use where it is “inconceivable that the respondent could make any active use of the disputed domain names without creating a false impression of association with the Complainant”).

 

Based on the circumstances it can be inferred that Respondent registered the disputed domain name in order to prevent Complainant from using its OTOKAR mark in another corresponding domain name.  This behavior is evidence of bad faith pursuant to Policy ¶ 4(c)(ii).  See Toyota Jidosha Kabushiki Kaisha v. S&S Enter. Ltd., D2000-0802 (WIPO Sept. 9, 2000) (finding that “Registration of a domain name (by Respondent that incorporates another’s trademark) goes further than merely correctly using in an advertisement the trade mark of another in connection with that other’s goods or services: it prevents the trade mark owner from reflecting that mark in a corresponding domain name”).

 

The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that the requested relief shall be hereby granted.

 

Accordingly, it is Ordered that the domain name <otokar.com> be transferred from Respondent to Complainant.

 

 

Hon. Ralph Yachnin, Panelist

Justice, Supreme Court, NY (Ret.)

 

Dated: December 20, 2001