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and Mediation Center
Nokia Corporation v. durmus dalda
Case No. D2006-0931
1. The Parties
The Complainant is Nokia Corporation of Finland, represented by Ceylin Beyli, Turkey.
The Respondent is durmus dalda of Turkey.
2. The Domain Name and Registrar
The disputed domain name <nokia-turkiye.net> is registered with eNom.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 21, 2006. On July 24, 2006, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On July 25, 2006, eNom transmitted by email to the Center its verification response confirming that the 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 the Respondent of the Complaint, and the proceedings commenced on July 27, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was August 16, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 17, 2006.
The Center appointed James A. Barker as the sole panelist
in this matter on August 28,2006. 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,
4. Factual Background
The following facts, which were not contested by the Respondent, are summarized from the Complaint.
The Complainant is one of the world’s leading mobile communication systems company. The Complainant maintains a website at “nokia.com”.
The Complainant is the owner of many trademark registrations in Turkey, where the Respondent has its address, and throughout the world, for marks consisting of the word ”nokia”, for goods in many classes.
The Complainant’s “nokia” mark is registered in more than 170 countries throughout the world, the oldest registration going back to 1960s.
The disputed domain name was registered on January
5. Parties’ Contentions
The following is summarized from the Complaint.
Identical or confusingly similar
The Complainant has significant registered marks incorporating the word ”nokia”.
The disputed domain name is confusingly similar to the Complainant’s trademark. The disputed domain name is constituted by two parts; “nokia” and “turkiye”. “nokia” is a registered and well-known trademark of the Complainant. “turkiye” is the Turkish word for Turkey as a country name. In this case, the use of “turkiye” in the disputed domain name does not avoid confusing similarity with the Complainant’s mark. It is well-established under the Policy that terms used for indicating a place do not reduce confusingly similarity between the domain name and the trademark but instead serve to increase it.
Rights or legitimate interests
The Respondent has no rights or legitimate interests in the disputed domain name.
Before commencement of these proceedings, the disputed domain name reverted to a web site displaying a full copy of one of the Complainant’s national web sites, showing pictures of mobile phones marketed by the Complainant.
The Complainant is the holder of registered rights in its “nokia” trademarks, and has been using the “nokia” trademark for over a century. Further, “nokia” is not a generic name that is being widely used. Therefore, it is highly likely that the Respondent cannot have rights in respect of the disputed domain name nor can it be commonly known by the disputed domain name.
The Respondent has used the disputed domain name without authorization from the Complainant. Via the disputed domain name, the Respondent has offered to sell mobile phones produced by the Complainant, and copied the Complainant’s website contents and designs.
The disputed domain name was registered, and is being used in bad faith.
The Respondent lists its address in Turkey. Further, the web site to which the disputed domain name reverts is presented in Turkish. The web site includes the statement “inanılmaz fiyatla sadece Nokia-Turkiye’de”, which translates as “with incredible price only at Nokia-Turkiye”. This suggests that the Respondent is not simply residing in Turkey, but that he or she is Turkish and addressing the Turkish market.
The Complainant, being one of Turkey’s and the world’s leading mobile communication companies, holding a major share of the Turkish mobile phone market, is widely known and recognized. The Respondent, who claims to reside in Ankara, the capital city of Turkey, has to be aware of the Complainant’s existence and rights in its “nokia” trademark. The nature of the Respondent’s use of the disputed domain name, and the inclusion of the “nokia” trademark, indicates that it was chosen by the Respondent on purpose to obtain commercial gain.
Following registration of the disputed domain name, the Respondent also started sending spam e-mails. These spam e-mails stated that “nokia-turkiye” was conducting a great mobile phone campaign with incredible prices.
These uses of the disputed domain name constitute bad faith within the meaning of paragraph 4(b)(i) of the Policy.
The Respondent did not reply to the Complainant’s
6. Discussion and Findings
For the Complainant to succeed and have the disputed domain name transferred to it, paragraph 4(a) of the Policy provides that the Complainant must prove that:
i. the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
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.
The Complainant must prove all of these elements. These elements are discussed in turn as follows.
A. Identical or Confusingly Similar
It is beyond dispute that the Complainant has rights in its registered mark
“nokia” in many jurisdictions including Turkey. The Complainant
attached evidence of its rights, including its rights as registered in Turkey.
Its rights have also been recognized in many previous cases under the Policy.
(See, e.g. Nokia Corporation v Nokia India Private Limited, WIPO
Case No. D2006-0080.)
The disputed domain name is self-evidently not identical to the Complainant’s mark.
However, it is confusingly similar. The simple addition of the generic word “turkiye” does nothing to lessen that confusion. The mark “nokia” clearly remains the dominant and distinctive element of the disputed domain name. It could not be visually or phonetically merged, or made less distinct, by the addition of the word “turkiye”. This is particularly so, given the deliberate insertion of a hyphen between “nokia” and “turkiye” by the Respondent.
Although the addition of the word “turkiye” does not avoid confusion,
for the sake of completeness, the Panel notes that it does not accept (as contended
by the Complainant) that it increases confusion. A word attached to a mark will
naturally increase confusion if the word creates or emphasizes an association
with the Complainant’s business or its mark. There is no evidence that
the geographic identifier “turkiye” has a particular association
with the Complainant or its trademark. There are other words that might, when
added to the Complainant’s trademark, increase confusion with it. (For
example, see Nokia Corporation v United Digital, WIPO
Case No. D2001-1176. In that case, the use of the words “ringtones”
and “faceplates” in conjunction with the Complainant’s “nokia”
mark were found to create a stronger argument for confusing similarity). However,
a broad geographic identifier like “turkiye” is not of that kind.
The Panel finds for the Complainant in relation to the first element of the Policy.
B. Rights or Legitimate Interests
Under Paragraph 4(c) of the Policy, the Respondent may demonstrate that it has rights or legitimate interests in respect of a domain name for the purpose of paragraph 4(a)(ii) by providing evidence of circumstances including the following:
(i) before any notice to you [the Respondent] of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services;
(ii) you [the Respondent] (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights;
(iii) you [the Respondent] are making a legitimate non commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The Respondent has filed no response, and so has not demonstrated any of these circumstances. Neither are there any circumstances evident from the facts of this case that suggest that the Respondent has some other rights or legitimate interests in the disputed domain name.
Although the Respondent appears to be marketing the Complainant’s productsthis
in itself does not give the Respondent a legitimate interest in the disputed
domain name. It has been noted in a number of previous panel decisions, involving
facts similar to this case and concerning the same Complainant, that a distributor
of a complainant’s products does not per se have a right to a domain
name that includes a complainant’s mark. (See e.g. Nokia Corporation
v. Wavesmultimedia (Bila Kalemba) , WIPO
Case No. D2002-0130; Nokia Corporation v. David Wills, WIPO
Case No. DWS2001-0004) This is particularly the case where, as here, the
Respondent is not licensed or authorized by the Complainant to use its mark.
The Panel finds for the Complainant in relation to the second element of the Policy.
C. Registered and Used in Bad Faith
Paragraph 4(b)(iv) of the Policy provides (in part) that there is evidence of bad faith in circumstances where the Respondent, by using the domain name, has intentionally attempted to attract, for commercial gain, Internet users to a website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship or affiliation, or endorsement of the Respondent’s website.
Each of the elements of paragraph 4(b)(iv) is satisfied in this case.
The Respondent’s intention in registering and using the disputed domain name can be readily be inferred from the Respondent’s conduct. As noted above, the disputed domain name is confusingly similar to the Complainant’s mark. The Complainant’s mark is distinctive and well-known. The Respondent was undoubtedly aware of it when it registered the disputed domain name. The Respondent has copied the appearance of the Complainant’s web site. The Respondent has also, on evidence supplied by the Complainant, sent spam emails in connection with the disputed domain name, holding itself out as “nokia-turkiye”, and offering the Complainant’s products for sale. This conduct clearly indicates that the Respondent has intentionally sought to attract Internet users for the purpose of commercial gain, by creating a likelihood of confusion concerning its affiliation with the Complainant.
As such, the Panel finds for the Complainant in relation to the third element
of the Policy.
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, <nokia-turkiye.net> be transferred to the Complainant.
James A. Barker
Dated: September 11, 2006