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#Istanbul .AERO : Turkish services provider lost #domain via the UDRP process

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UDRP result: Transfer domain.

A recent UDRP decision on the domain Istanbul.aero involved the Turkish operator of the new Istanbul airport, and a Turkish airport services provider.

The geographical term “Istanbul” as related to airport services has led to UDRP decisions before; in a major case, IstanbulAirport.com was at stake.

This time around, İGA Havalimanı İşletmesi Anonim Şirketi of Istanbul, Turkey, challenged Murat Denge, Denge Airport Equipment of Istanbul.

The Respondent did not respond, but it’s clear that they operate an airport services company in Turkey, as seen from their web site at Denge.aero.

What is dot .Aero? According to the Registry at NIC.aero:

Reserved exclusively for aviation, .aero is inspiring a revolution in the way people access and use air transport information.

Istanbul.aero was registered in 2012. DENGE Airport Equipment, is the leading Ground Support Equipment manufacturer (GSE) in Turkey with being a part of aviation industry for 35 years.

Despite all that, Selma Ünlü, sole panelist at the WIPO, delivered a decision favoring the Complainant, and ordered the domain Istanbul.aero to be transferred.

Full details on this decision follow:

WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
İGA Havalimanı İşletmesi Anonim Şirketi v. Murat Denge, Denge Airport Equipment
Case No. D2019-0361

1. The Parties

The Complainant is İGA Havalimanı İşletmesi Anonim Şirketi of Istanbul, Turkey, represented by Göksu Safi Işık Attorney Partnership, Turkey.

The Respondent is Murat Denge, Denge Airport Equipment of Istanbul, Turkey.

2. The Domain Name and Registrar

The disputed domain name <istanbul.aero> is registered with Secura GmbH (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 11, 2019. On February 18, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 19, 2019, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on February 19, 2019 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit a Complaint due to a formal deficiency. The Complainant filed an amended Complaint on February 24, 2019.

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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on March 8, 2019. In accordance with the Rules, paragraph 5, the due date for Response was March 28, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 1, 2019.

The Center appointed Selma Ünlü as the sole panelist in this matter on April 12, 2019. 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.

The Panel notes that the Complainant submitted the Complaint petition in English and also requested the continuation of the process in Turkish, if the Respondent knows Turkish.

4. Factual Background

The Complainant in this administrative proceeding, İGA Havalimanı İşletmesi Anonim Şirketi, is a company specifically constituted for the construction of İstanbul Airport and management of the airport for 25 years.

The Complainant composes of different companies namely Cengiz İnşaat Sanayi ve Ticaret A.Ş., MAPA İnşaat ve Ticaret A.Ş., Limak İnşaat Sanayi ve Ticaret A.Ş., Kolin İnşaat Turizm Sanayi ve Ticaret A.Ş., Kalyon Havacılık ve İnşaat A.Ş., which all operate in different sectors such as construction, energy, tourism, mining, harbor and airport managing. Moreover, the İstanbul Airport project, which is being conducted by the Complainant, is one of the biggest substructure projects in the world.

The Complainant holds İGA İSTANBUL GRAND AİRPORT trademark number 2016/64409 and registered on December 27, 2017 and İGA İSTANBUL GRAND AİRPORT trademark number 2014/68787 and registered on May 11, 2015 before the Turkish Patent and Trademark Office (“TPTO”). The Complainant also holds trademark applications İSTANBUL AIRPORT number 2018/98401, filed on November 2, 2018 and İSTANBUL AIRPORT number 2018/105496, filed on November 22, 2018.

The Complainant is the holder of the İGA İSTANBUL GRAND AIRPORT international trademark, number 1396790 and registered on October 5, 2017 in several countries such as China, Italy, and the United States of America.

The Complainant is the owner of the domain names <istanbulhavalimani.aero> registered on October 29, 2018 and <istanbulhavalimani.com> registered on July 29, 2011.

The Respondent is not known or related to the Complainant.

The Respondent has not submitted any formal Response to the contentions raised in the Complaint.

The disputed domain name <istanbul.aero> was registered on August 01, 2012.

The disputed domain name <istanbul.aero> is inaccessible and there were no content provided, when the Panel visited the Respondent’s website.

5. Parties’ Contentions

A. Complainant

Pursuant to paragraph 4(i) of the Policy, the Complainant requests the Panel to transfer the disputed domain name to it. The Complainant submits the grounds for these proceedings listed in paragraph 4(a) of the Policy.

First of all, the Complainant alleges that the Respondent cannot be the owner of the disputed domain name <istanbul.aero> since the Respondent is not a member of the aviation community. The Complainant states that, as the eligibility conditions according to Article 4 of Domain Management Policy (“DMP”), the real person or legal entity who wants to register the generic Top-Level Domain (gTLD) “.aero” should be a member of aviation community and get into the act one of the sectors which are stated in the same article just appropriate with the purpose of “.aero”.

The Complainant argues that being a member of SITA (Société Internationale de Télécommunications Aéronautiques) should be proven while registering a domain name and that the “aviation community membership ID code” should be provided. It is stated that there exist two following options to register a gTLD “.aero”. As the first option, if a requester already has an aviation community membership ID code, its gTLD “.aero” becomes active by registration. Another option, a requester can still ask for the registration of a gTLD “.aero”, even though it does not hold an aviation community membership ID code. In such a case, the gTLD “.aero” will stay inactive until the gain of ID code.

The Complainant argues that the Respondent does not have an aviation community membership ID code and accordingly the disputed domain name is not active. The Complainant claims that the Respondent is not a member of aviation community and it demands from the Panel to determine if the Respondent is a member of the aviation community.

The Complainant states that, even if the Panel concludes that the Respondent is in fact a member of the aviation community, the Complainant is the only owner of the İstanbul Airport and the <istanbul.aero> disputed domain name evokes directly the İstanbul Airport.

The Complainant also alleges that according to the Article 19 of DMP gTLD “.aero” should be in compliance with the Rules for Uniform Domain Name Dispute Resolution Policy “UDRP”.
Confusingly Similar

The Complainant states that it holds İGA İSTANBUL GRAND AİRPORT trademark registration numbered 2016/64409 and İGA İSTANBUL GRAND AİRPORT trademark registration numbered 2014/68787 and both of the trademarks includes “airport services” and “Istanbul”. The Complainant has filed the trademark application İGA İSTANBUL AIRPORT, number 1396790, to WIPO on October 5, 2017, which was registered in several countries around the world.

The Complainant also states that it has filed the application number 2018/98401, on November 02, 2018 to obtain the registration of İSTANBUL AIRPORT before the TPTO. Procedural reviews of this trademark is terminated and the similarity evaluation continues. Also, the Complainant filed the application number 2018/98401 on the same day for İSTANBUL AIRPORT. The similarity evaluation of this trademark is on process.

The Complainant claims that the disputed domain name is similar to its trademarks.

The Complainant alleges that holding the <istanbulhavalimanı.com> domain name since July 29, 2011 presents its ownership priority right.

The Complainant argues that it is the only licensed manager of İstanbul Airport.
Rights or Legitimate Interests

The Complainant alleges that the Respondent does not have any legal interest on the disputed domain name and there is no trademark or trademark application containing of comprised of the phrase “Istanbul” could have been determined.

The Complainant argues that the Respondent does not use actively the disputed domain name and it shows that the Respondent does not have any need or legal interest for the disputed domain name. Further, the Respondent does not have any trademark registration or application containing of comprised of the phrase “Istanbul” could have been determined.

Therefore, the Complainant argues that the Respondent has no rights or legitimate interests on the disputed domain name.

The Complainant emphasizes that the disputed domain name will cause “İstanbul Airport” to be first thing to come in mind when it is considered that “.aero” is a symbol for the aviation sector.

Registered and Used in Bad Faith

The Complainant indicates that the disputed domain name has been registered and used in bad faith.

The Complainant argues that despite the Respondent has paid the necessary fee to renew the disputed domain name, the disputed domain name has not been active and this is a solid proof of the bad faith of the Respondent considering other UDRP panel decisions, i.e., Tahkim ve Arabuluculuk Merkezi İDARİ HAKEM KARARI Türkiye İş Bankası A.Ş v. Murat Topaloğlu, WIPO Case No. D2009-1685 and Türkiye Cumhuriyeti Ziraat Bankası Anonim Şirketi v. Murat Imsiyatoğlu 2652cde49e22d00c65787c27e1e9cf85, WIPO Case No. D2016-2604.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

According to paragraph 15(a) of the Rules, the Panel shall decide the Complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable and on the basis of the Complaint where no Response has been submitted.

As per Article 4 of the Domain Management Policy (DMP), to be recognized as a member of the aviation community, a Registrant must establish that it belongs to a Registrant Group. The list and description of registrant Groups is shown within the same Article of the DMP. Having examined the Registrant Groups, the Panel notes that aircraft, engine, equipment or satellite manufacturers, companies, organizations or individuals carrying out business involving maintenance, testing, and distribution are considered to be one of the Registrant Groups within the group name “Aerospace”.

The Panel is determined that the Respondent Denge Airport Equipment is one of the Ground Support Equipment manufacturers (GSE) in Turkey, being a part of aviation industry as it can be seen within its official website “denge.aero”. Accordingly, the Panel is concluded that the Respondent is a member of the aviation community and it belongs to the Registrant Group Aerospace. On the other hand, the Panel could not find the Respondent among the SITA members listed at the following link: “www.sita.aero/about-us/sita-membership/about-our-members/sita-members-a-z”.

It is stated within the Article 19 of DMP that all Registrants agree to be bound by the UDRP and the UDRP applies to challenge registered domain names on the ground that such domain names are identical or confusingly similar to a trademark in which the Complainant has rights.

In accordance with paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements is satisfied:

(i) The disputed domain name is identical or confusingly similar to the trademark in which the Complainants have rights; and

(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.

Paragraph 4(a) of the Policy states that the Complainants have the burden of proving that all these requirements are fulfilled.

A. Identical or Confusingly Similar

The Policy simply requires the Complainant to demonstrate that the disputed domain name is identical or confusingly similar to a trademark in which the Complainant has rights. The Panel is satisfied that the Complainant is the owner of several trademark registrations/applications bearing “Istanbul” and “Airport” terms. The Panel states that the Complainant is the holder of prior İSTANBUL AIRPORT trademark rights, which can constitute grounds in the present case.

The Panel finds that the usage of “Istanbul” word along with “.aero” term, which shows that the holder of the domain name operates in aviation sector, will create an appearance of the disputed domain name being the official domain name for the İstanbul Airport, and it will create a confusingly similarity to the Complainant’s trademark.

The Panel recognizes the Complainant’s rights and concludes that the disputed domain name is confusingly similar with the Complainant’s ISTANBUL AIRPORT trademarks. Therefore, the Panel concludes that the requirements of paragraph 4(a)(i) of the Policy are met.

B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy states that a respondent may establish its rights or legitimate interests in a domain name, among other circumstances, by showing any of the following elements:

(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; or

(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; or

(iii) you [the Respondent] are making a legitimate noncommercial 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 burden of proof is on the Complainant to demonstrate a prima facie case that the Respondent does not have rights or legitimate interests in the disputed domain name. Once the Complainant has made out a prima facie case, then the Respondent may demonstrate rights or legitimate interests in the disputed domain name.

In light of the evidence submitted in the case file it is clear to the Panel that the Complainant has earlier and lawful rights on the ISTANBUL AIRPORT trademarks. Therefore, the Panel finds that the Complainant has proved rights on the ISTANBUL AIRPORT trademarks and, considering the use of the disputed domain name, has also established a prima facie case that the Respondent does not have rights or legitimate interests in the disputed domain name for the purposes of the Policy.

The Complainant has not granted the Respondent any right or license to use the ISTANBUL AIRPORT trademarks as well and the Respondent is not known by such terms.

Consequently, in the absence of any Response, the Panel accepts the Complainant’s allegations as true (that the Respondent has no authorization to use the İSTANBUL AIRPORT term in the disputed domain name). Hence, as the Complainant has made out its prima facie case, and as the Respondent has not demonstrated any rights or legitimate interests as illustrated under paragraph 4(c) of the Policy, nor has the Panel found any other basis for finding any rights or legitimate interests of the Respondent in the disputed domain name, the Panel concludes that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

Finally, the Complainant must show that the disputed domain name has been registered and is being used in bad faith under paragraph 4(a)(iii) of the Policy.

Paragraph 4(b) of the Policy provides a non-exhaustive list of circumstances that, if found by a panel to be present, shall be evidence of the registration and use of a domain name in bad faith:

(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or

(ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or

(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent’s website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on the respondent’s website or location.

By consideration of the foregoing, the Panel is of the opinion that, due to the earlier rights of the Complainant in “İSTANBUL AIRPORT” terms, the Respondent was aware of the Complainant and its İSTANBUL AIRPORT project. See e.g., Ebay Inc. v. Wangming, WIPO Case No. D2006-1107; General Electric Company v. CPIC NET and Hussain Syed, WIPO Case No. D2001-0087. Referring to Parfums Christian Dior v. Javier Garcia Quintas and Christiandior.net, WIPO Case No. D2000-0226. The Panel believes that the awareness of the Complainant’s trademark at the time of the registration of the disputed domain name is to be considered an inference of bad faith registration, due to the nature of the disputed domain name.

The Panel is of the opinion that Internet users may fall into the false impression that the disputed domain name is the Complainant’s official domain name or that it is related, associated or sponsored by the Complainant.

Therefore, in light of the above-mentioned circumstances in the present case, the Panel finds that the disputed domain name has been registered and is being used in bad faith and that the Complainant has established the third element under paragraph 4(a)(iii) of the Policy.

7. Decision

For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name, <istanbul.aero> be cancelled.

Selma Ünlü
Sole Panelist
Date: May 07, 2019


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