Acun Medya Prodüksiyon Ve Reklam Hizmetleri Anonim Şirketi v. Victoria Ilyicheva
Case No. D2014-1568
1. The Parties
The Complainant is Acun Medya Prodüksiyon Ve Reklam Hizmetleri Anonim Şirketi of Istanbul, Turkey, represented by Net Koruma Danışmanlık Hizmetleri, Turkey.
The Respondent is Victoria Ilyicheva of Saint-Petersburg, Russian Federation.
2. The Domain Name and Registrar
The disputed domain name, (the “Domain Name”), is registered with NICREG LLC (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 11, 2014. On September 12, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On September 15, 2014, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name, which differed from the named respondent and contact information in the Complaint. The Complaint was originally filed against a privacy service used by the Respondent. The Center sent an email communication to the Complainant on September 16, 2014, providing the registrant and contact information disclosed by the Registrar and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on September 16, 2014, naming the Respondent in place of the privacy service.
The Center verified that the Complaint together with the amended 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 September 29, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was October 19, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 20, 2014.
The Center appointed Tony Willoughby as the sole panelist in this matter on October 27, 2014. 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.
On October 28, 2014 the Complainant filed a Supplemental Submission detailing what appears to have been a post-Complaint communication from the Respondent. The Panel has read the submission hoping to find an explanation for the defects in the annexes said to have been annexed to the Complaint (see section 4 below). The submission contains nothing new of any significance and the Panel ignores it for the purpose of this Decision.
The information in this section (apart from the early history of the Domain Name) is material obtained from the Complaint, which the Panel accepts on the balance of probabilities to be factually accurate and, in any event, has not been challenged by the Respondent.
The Complainant is a Turkish corporation incorporated on September 21, 2006, under the name Acun Ilicali Reklam Hizmetleri Limited Şirketi, which underwent a name change to its current name in August 2008. At some stage (possibly at the same time) it was converted from a limited company to a joint stock company.
The founder of the Complainant, Acun Ilicali, was born in 1969 and is a well-known Turkish celebrity, having started his career as a sports reporter in the 1990s. He went on to make various television programmes including one bearing his first name entitled “Acun Firarda”. It was his success as a television personality which motivated him to form the Complainant, which he now heads.
The Complainant is the proprietor of various trade mark registrations of and/or including the name of its founder and chief executive, Acun Ilicali, the earliest of those registrations being No. 2008/41953 ACUN ILICALI dated October 23, 2008.
The Complainant has annexed historical screenshots from the website connected to the Domain Name. The Panel was able to verify the Complainant’s assertion that at an earlier stage (December 9, 2005), via an earlier registration of the Domain Name, the Domain Name was in fact connected to a website purporting to be a United States of America fan site and featuring a photograph of the Complainant’s founder, Acun Ilicali. That registration was held in the name of a United States based registrant.
The current registration of the Domain Name was created on December 16, 2007, and at that date it was held in the name of “Temporarily assigned to Eurobox Ltd” with an address in Saint Petersburg (Russian Federation), but not the same Saint Petersburg address as that of the Respondent. From a date (unknown) between February and November 2009 until after the original Complaint had been filed, the Domain Name was held in the name of a Whois Privacy Service employed by the Respondent.
The Panel has also been able to verify1 by the same means that throughout the current registration of the Domain Name, the Domain Name has been connected to commercial webpages offering goods/services or links to such webpages. Many of them have indicated that the Domain Name is for sale. While some of those pages feature the Turkish language, the Panel has been unable to decipher any references (direct or indirect) to the Complainant or its founder.
For the purposes of this Decision and in the absence of any clarification from the Respondent, the Panel takes as the date of the Respondent’s acquisition of the Domain Name, the date (unknown) in 2009 when the Domain Name was transferred into the name of the privacy service employed by the Respondent.
5. Parties’ Contentions
The Complainant contends that the Domain Name is identical to its ACUN ILICALI registered trade mark, that the Respondent has no rights or legitimate interests in respect of the Domain Name and that the Domain Name was registered and is being used in bad faith. The Complainant contends that the Respondent registered the Domain Name knowing it to be the name of the Complainant’s founder and with the primary purpose of selling it for profit on the basis of its value as a famous Turkish name and trade mark and/or for the purpose for which it is currently being used, namely for commercial gain by way of pay-per-click or similar revenue.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name, the Complainant must prove each of the following, namely that:
(i) The Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) The Domain Name has been registered and is being used in bad faith.
B. Identical or Confusingly Similar
The Domain Name comprises (i) the Complainant’s registered trade mark absent the space and (ii) the generic Top-Level domain identifier “.com”, which UDRP panels may ignore for the purposes of assessing identity and confusing similarity under paragraph 4(a)(i) of the Policy.
The Panel finds that the Domain Name is identical or confusingly similar to a trade mark in which the Complainant has rights.
C. Rights or Legitimate Interests
The Complainant contends that the name, Acun Ilicali, is an unusual name and not one that anyone would select at random. The Panel agrees. Indeed, as indicated in section 4 above, an earlier registration of the Domain Name was made by someone appearing to be a fan of Acun Ilicali, the Complainant’s founder.
The Respondent’s name bears no relation to the Domain Name and there is nothing about the Respondent’s use of the Domain Name, which indicates any connection to the name, Acun Ilicali.
The Complainant asserts that it has given the Respondent no permission to use its trade mark for this or any other purpose.
If the Respondent had a justifiable reason for acquiring the Domain Name, she could have provided it to the Panel, but elected not to respond to the Complaint.
The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name.
D. Registered and Used in Bad Faith
Acun Ilicali is, on the evidence of the Complainant, a most unusual name even in Turkey. Certainly, to the Panel, an English speaker, it appears very unusual. It is not a name that is likely to have been selected at random. When the Respondent acquired the Domain Name allegedly in 2009 the name of Acun Ilicali was well-known in Turkey as a television celebrity and his company, the Complainant, was in possession of Turkish trade mark rights in respect of the name dating back to 2008. As indicated above, there is nothing before the Panel to suggest that the Respondent has any connection with the name beyond the fact that she acquired the Domain Name. Acun Ilicali is not her name and the Panel has seen nothing of her use of the Domain Name to suggest any justifiable connection.
The Panel finds, on the preponderance of the evidence, that the Respondent acquired the Domain Name with knowledge of the fame of the name, Acun Ilicali, in Turkey.
The Respondent appears to have used the Domain Name to connect to webpages featuring revenue-earning links and the Panel finds that on the preponderance of the evidence, the Respondent acquired the Domain Name for that purpose, namely to attract visitors to her site on the back of the fame of the Complainant’s trade mark (the name of its founder) for commercial gain.
The Panel notes that the website to which the Domain Name is connected has from time to time indicated that the Domain Name is for sale, but the Panel doubts that that was the Respondent’s primary purpose in registering the Domain Name. That said, the Panel has no doubt that if the Respondent had received an attractive offer, it would have been accepted.
The Panel finds that the Respondent registered and is using the Domain Name in bad faith within the meaning of paragraphs 4(a)(iii) and 4(b)(iv) of the Policy.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name, , be transferred to the Complainant.
Date: October 30, 2014