ARBITRATION

AND
MEDIATION CENTER

ADMINISTRATIVE PANEL DECISION

Dumankaya Yapi Malzemeleri SAN. VE TIC. A.S v. Domain Administrator,
Name Administration Inc. (BVI)
Case No. D2015-1757

1. The Parties
The Complainant is Dumankaya Yapi Malzemeleri San. Ve Tic. A.S of Istanbul, Turkey, represented by
AYDIN & AYDIN Law Firm, Turkey.
The Respondent is Domain Administrator, Name Administration Inc. (BVI) of Cayman Islands, Overseas
Territory of the United Kingdom of Great Britain and Northern Ireland (the United Kingdom), represented by
John Berryhill, Ph.d., Esq., United States of America (the United States).

2. The Domain Name and Registrar

The disputed domain name <dky.com> (the Disputed Domain Name) is registered with Uniregistrar Corp
(the Registrar).

3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the Center) on October 3, 2015.
On October 5, 2015, the Center transmitted by email to the Registrar a request for registrar verification in
connection with the Disputed Domain Name. On October 8, 2015, the Registrar transmitted by email to the
Center its verification response confirming that the Respondent is listed as the registrant and providing the
contact details.
The Center verified that the 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 October 14, 2015. In accordance with the Rules,
paragraph 5, the due date for Response was November 3, 2015. Further to the Respondents request, the
Response due date was extended to November 7, 2015. The Response was filed with the Center on
November 7, 2015.

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The Center appointed Kaya Kkl, Tony Willoughby and John Swinson as panelists in this matter on
December 4, 2015. 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 December 16, 2015, the Center received an unsolicited supplemental filing from the Complainant
followed by a supplemental filing in response from the Respondent.

4. Factual Background
The Complainant is Dumankaya Yapi Malzemeleri San. Ve Tic. A.S, a construction company in Turkey which
has been operating since 1961.
The Complainant owns a number of trade mark registrations for DKY or which incorporate DKY, each in
stylized forms, the earliest of which was filed on October 16, 2012. The Complainant also owns a number of
pending trade mark applications which incorporate DKY. Collectively, these will be referred to as the Trade
Mark.
The Complainant also owns a number of domain names which incorporate the Trade Mark, such as
<dkyinsaat.com>, <dkykartal.com>, and <dkyotomotiv.com>.
The Respondent is Domain Administrator of Name Administration Inc. (BVI) of the Cayman Islands. The
Respondent is in the business of monetizing domain names.
The Respondent registered the Disputed Domain Name on October 9, 2003. The website at the Disputed
Domain Name currently features an assortment of general pay-per-click (PPC) links.

5. Parties Contentions
A. Complainant
The Complainant makes the following contentions.
Identical or Confusingly Similar
The Trade Mark is well-known in Turkey. The Disputed Domain Name is exactly the same as the Trade
Mark, which is registered with the Turkish Patent Institute. This is likely to cause confusion to consumers.
The Trade Mark is protected against confusing or misleading use by third parties under Turkish trade mark
and commercial law.
Rights or Legitimate Interests
The Respondent has no rights to or legitimate interests in the Disputed Domain Name. The Complainant
has not licensed or otherwise permitted the Respondent to use the Trade Mark or to apply for a domain
name incorporating the Trade Mark. The Respondent is not related with the Trade Mark.
The Respondent is not commonly known by the Disputed Domain Name. The Disputed Domain Name was
registered in 2003, while the Trade Mark has been used since 1961.
Under Turkish law, a prudent merchant trading in the same area cannot claim to be unaware of the Trade
Mark and the Complainants domain names.

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Registration and Use in Bad Faith
The Respondent registered the Disputed Domain Name in contravention of Turkish law. The Respondents
use of the Disputed Domain Name creates confusion with the Trade Mark, as customers will think that the
Respondents website is affiliated with the Complainant.
The Respondent is misleadingly diverting Internet users to its website. By using the Disputed Domain Name,
the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website, and
has unfairly tried to take advantage of the fame of the Trade Mark. The Respondent knows the market and
intentionally created a confusing website to gain more profit.

B. Respondent
The Respondent makes the following contentions.
Identical or Confusingly Similar
The Complainant has not provided any evidence of rights to the Trade Mark prior to 2012. The 2012
registration is nine years after the Disputed Domain Name was registered.
None of the Complainants domain names were registered prior to 2013.
The Complainant has provided no further evidence of its rights under paragraph 4(a)(i) of the Policy. The
Complainants assertion that the Trade Mark is famous cannot be correct, as the letters DKY are not
exclusively identified with the Complainant (aside from in its stylized form). There are a number of Turkish
trade marks which use the letters DKY, and which are owned by third parties.
Rights or Legitimate Interests
The Respondents registration of the Disputed Domain Name precedes the Complainants rights in the Trade
Mark. The right of seniority is a recognised equitable right which previous panels have held sufficient to find
that a respondent has rights to or legitimate interests in the relevant domain name.
The Complainants business relates to the construction industry. The letters DKY are used by many
parties, and are a generic three-letter acronym for a number of different phrases.
The Trade Mark is not well known outside of a particular trade or region, unlike globally recognizable trade
marks such as IBM, VW, or HSBC. The letters DKY are not even used exclusively by the Complainant in
its own jurisdiction.
The Complainant does not consider the use the Respondent makes of the Disputed Domain Name. The
Respondent is known for registering generic domain names and associating those domain names with paid
advertising links. The advertising links provided on the website at the Disputed Domain Name include topics
such as Email Accounts, DNS Hosting, Abbreviations and Monograms. There is no evidence that the
Respondent has provided links relating to construction services.
The Respondents use of the Disputed Domain Name has been unrelated to the Complainant and its
industry, and the Complainant has not shown any illegitimate use of the Disputed Domain Name by the
Respondent. Previous panels have found that non-infringing use of a domain name consisting of a generic
three-letter acronym can found a legitimate interest in the relevant domain name.
Registration and Use in Bad Faith
The Complainant has provided no reason to believe that the Respondent knew or should have known of the

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Complainant when the Disputed Domain Name was registered in 2003. The Respondent has no particular
knowledge of Turkey, and denies knowledge of the Complainant at the time of registering the Disputed
Domain Name. The Respondents use of the Disputed Domain Name has not been related to the goods or
services offered by the Complainant.
Further, during the course of two years of correspondence with the Respondents domain name broker,
during which the Complainant sought to purchase the Disputed Domain Name, the Complainant did not
assert its rights to the Trade Mark, and made statements indicating that it was comfortable for the
Respondent to sell the Disputed Domain Name to another purchaser.
It appears that the Complainant has grown dissatisfied with the commercial negotiation and has attempted to
use the Policy as an alternative means of securing the Disputed Domain Name. The Complainant failed to
mention the negotiations at all in the Complaint.
As such, there is no basis for a finding of bad faith registration or use under the Policy.

6. Discussion and Findings

To succeed, the Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the
Policy have been satisfied, namely:
(i)

the Disputed 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 Disputed Domain Name; and

(iii)

the Disputed Domain Name has been registered and is being used in bad faith.

The onus of proving these elements is on the Complainant.

As a preliminary matter, the Panel in its discretion declines to consider the Complainants supplemental filing
submitted on December 16, 2015. There appear to be no exceptional circumstances justifying the
acceptance of such a filing. In any event, the Panel notes that this filing would not have affected the
outcome of this decision. That being the case there is no need for the Panel to consider the Respondents
filing in response.
A. Identical or Confusingly Similar
Paragraph 4(a)(i) of the Policy provides that the Complainant must establish that the Disputed Domain Name
is identical or confusingly similar to the Trade Mark.
The Complainant has registered rights in the Trade Mark dating back to October 16, 2012, but also seems to
be claiming common law rights in the Trade Mark with a date of first use in 1961. However, the Complainant
has provided no evidence of these common law rights. As such, the Panel accepts that the Complainant has
rights in the Trade Mark for the purpose of the Policy, but on the present record, not prior to October 16,
2012.
Although the Trade Mark is stylized, the letters DKY are clearly discernable and are the dominant aspect of
the Trade Mark. As such, the Disputed Domain Name is at least confusingly similar to the Trade Mark. The
textual element of the Trade Mark has been wholly incorporated into the Disputed Domain Name, and no
additional words have been added.
The Complainant succeeds on the first element of the Policy.

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B. Rights or Legitimate Interests
Paragraph 4(a)(ii) of the Policy provides that the Complainant must establish that the Respondent has no
rights or legitimate interests in respect of the Disputed Domain Name. The Complainant is required to make
out a prima facie case showing that the Respondent lacks rights or legitimate interests.
The Complainants submissions in relation to this element consist of several brief and general statements
which are wholly unsupported by evidence. The Panel is inclined to find that the Complainant has not met its
burden of making out a prima facie case that the Respondent lacks rights or legitimate interests. However,
even if the Complainant has done so, the Panel finds that the Respondent has rebutted the Complainants
prima facie case.
The Respondent is in the business of monetizing generic and three-letter domain names. As submitted by
the Respondent, a number of previous panels have found that as long as this business is not infringing on a
complainants rights in a mark, the Policy allows registration and use of domain names for this purpose.
See, e.g., R.V. Kuhns & Associates, Inc. v. Gregory Ricks / Whois Privacy Corp. / Domain Administrator,
WIPO Case No. D2014-2041.
Based on the case file, the Respondents use of the Disputed Domain Name has been non-infringing since it
was registered in 2003 (which predates the Complainants registration of the Trade Mark by around nine
years). Although the website at the Disputed Domain Name is a PPC link page, the links currently (and
historically) featured on that page are unspecific. They do not reference the Complainant or its competitors,
or the construction industry or any similar industry. They do not attempt to trade off the Complainants (nor
do they appear to trade off a third partys) name or trade mark. There is no evidence to suggest that the
Disputed Domain Name was registered with any knowledge of the Complainant.
Therefore, the Complainant does not succeed in establishing the second element of the Policy.
C. Registered and Used in Bad Faith
In light of the above finding, the Panel is not required to consider the third element of the Policy. However,
the Panel will briefly address the key aspects of this element for completeness.
Paragraph 4(a)(iii) of the Policy provides that the Complainant must establish that the Respondent registered
and subsequently used the Disputed Domain Name in bad faith.
As previously mentioned, while the Complainant claims to have rights in the Trade Mark dating back to 1961,
it has not provided any evidence of such rights. The Complainants earliest registered DKY Trade Mark of
which it has provided evidence was filed on October 16, 2012. This is around nine years after the
Respondent registered the Disputed Domain Name (on October 9, 2003).
The Complainant is based in Turkey and the Respondent is formally based in the Cayman Islands (though its
controlling mind is possibly elsewhere). The Complainant has not provided any evidence that it was famous
in 2003, either in Turkey or otherwise, or to show that the Respondent ought to have had knowledge of the
Complainant at the time it registered the Disputed Domain Name.
The Complainant refers to the fame of the Trade Mark in such a way that suggests it is an instantly
recognizable brand. However, as the Respondent submits, the Trade Mark is not famous in the sense that
it is a global household name such as IBM, VW, or HSBC. The Complainant has not provided the Panel with
any evidence that would lead it to consider otherwise. The Complainant cannot claim to have exclusive use
of three letters, which could represent an acronym for the name of different organizations around the world,
without providing a reasonable amount of evidence in support of that claim (see, e.g., Instrumentation
Northwest, Inc. v. INW.COM c/o Telepathy, Inc., WIPO Case No. D2012-0454).
The Panel accepts the Respondents submission that it had no knowledge of the Complainant at the time it
registered the Disputed Domain Name. Based on the above, the Panel finds that the Disputed Domain

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Name was not registered in bad faith.
The Complainant makes further general statements, again unsupported by evidence, in relation to the
Respondents bad faith use of the Disputed Domain Name. The Complainant submits that the Respondent
is misleadingly diverting Internet users to its website, and is taking advantage of the Complainants rights in
the Trade Mark. However, the links at the website at the Disputed Domain Name do not refer to the
Complainant, or to the construction or any related industry.
In the view of the Panel, the content of the website is not misleading and does not attempt to trade off the
Complainants reputation or the Trade Mark. The PPC links direct Internet users to products and services
which do not take advantage of the Complainants rights.
The Panel finds that the Respondent is not using the Disputed Domain Name in bad faith.
The Complainant does not succeed in establishing the third element of the Policy.
D. Reverse Domain Name Hijacking (RDNH)
In coming to a decision the Panel has to have regard to paragraph 15(e) of the Rules and in particular the
following passage, namely:
If after considering the submissions the Panel finds that the Complaint was brought in bad faith, for
example in an attempt at Reverse Domain Name Hijacking or was brought primarily to harass the
domain name holder, the Panel shall declare in its Decision that the Complaint was brought in bad
faith and constitutes and abuse of the administrative proceeding.
RDNH is defined in paragraph 1 of the Rules as meaning using the Policy in bad faith to attempt to deprive
a registered domain name holder of a domain name.
In this case the Respondent has not sought a finding of RDNH, but, as paragraph 15(e) of the Rules makes
clear, such a finding is not dependent upon a request from the Respondent. If abuse is apparent on the face
of the case papers, the Panel is under an obligation to declare it. See Goway Travel Limited v. Tourism
Australia, WIPO Case No. D2006-0344 (The Rules specifically put the burden on the Panel to determine
whether a complainant has tried to use the Policy in bad faith to attempt to deprive a registered domain
name holder of a domain name.). Thus, findings of RDNH have been made not only in cases where no
such finding has been sought by the respondent, but also in cases where there has been no response (M
Corentin Benoit Thiercelin v. CyberDeal, Inc., WIPO Case No. D2010-0941).
Abuse can take several forms, but one of the most egregious examples is where a complainant fails to
disclose relevant facts, such as the existence of highly material prior communications involving the relevant
domain name (G.A. Modefine S.A. v. A.R. Mani, WIPO Case No. D2001-0537). Moreover, abuse is
commonly found where the complainant knew or ought to have known at the outset that for one reason or
another the case was doomed to failure. For a very recent decision on the topic the Panel refers to the case
of SK Lubricants Americas v. Andrea Sabatini, Webservice Limited, WIPO Case No. D2015-1566, a decision
of a three-member panel. The following passage is particularly appropriate to many of the facts of this case:
In the view of the Panel this is a complaint which should never have been launched. The
Complainant should have appreciated that establishing registration and use in bad faith in respect of a
domain name which had first been registered many years previously and which was a three letter
acronym was likely to involve difficult considerations. The Complainant appears to have ignored any
such considerations. It initially adopted an entirely unwarranted and unnecessarily aggressive
approach to the Respondent in the form of its email correspondence including its email of August 6,
2015 (see above), which was materially incorrect in important respects. Having failed by that
correspondence to force the Respondent to transfer the Domain Name at the price the Complainant
was prepared to pay, it simply launched the present proceedings. These were presented in a very

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limited and inadequate manner, and with no proper consideration of the issues involved, the factual
background, or what the Complainant had to establish if it was to present a credible case. Given the
nature of the Policy and the multiplicity of previously decided cases dealing with similar issues in
relation to short acronym type domain names, this was a case that had no reasonable prospects of
success. If the Complainant took competent legal advice it should have appreciated that this was the
position. If it did not take competent legal advice it has only itself to blame. In all the circumstances
the Panel agrees with the Respondent that the Complaint was brought in bad faith and constitutes an
abuse of the administrative proceeding.
In this case the Complainant made no attempt to prove the existence of any trade mark rights prior to 2012,
yet asserted without any supporting evidence that the Disputed Domain Name was registered in bad faith.
The Complainant asserted use in bad faith, but made no proper attempt to justify that assertion. There is
nothing in the evidence to suggest that the Respondent has been targeting the Complainant or the Trade
Mark. The Complaint had no prospect of success and the Complainant or those advising it must have been
aware of that fact, but proceeded with the Complaint in the hope, perhaps, that as is so often the case, the
Respondent would not bother to respond. That alone would have justified a finding of abuse of process, but
to cap it all the Complainant made no mention whatever of its numerous failed attempts to acquire the
Disputed Domain Name through a domain name broker for substantial sums of money. This was a line of
email correspondence in which the Complainant ultimately expressed itself happy that the Disputed
Domain Name should be sold to a third party for a sum in excess of the substantial sums that the
Complainant had been offering. In none of that correspondence did the Complainant assert that it had rights
to the Disputed Domain Name.
That undisclosed email correspondence, brought to the Panels attention by the Respondent, demonstrates
that the Complainants interest in acquiring the Disputed Domain Name only arose following its acquisition of
its registered trade mark rights and that it appreciated that in order to acquire the Disputed Domain Name
from the owner it would necessarily have to pay a substantial sum. The Complainant knew that
correspondence was fatal to its case and the Panel can only conclude that its failure to disclose it was an
attempt to deceive the Panel.
The Complaint concludes with a certificate to the effect that the information contained in the Complaint was
to the best of the Complainants knowledge complete and accurate. In the Panels view, the signatory should
never have been permitted to sign and submit that certificate.
In light of the above findings the Panel has no hesitation in finding that the Complainant has used the Policy
in bad faith to attempt to deprive a registered domain name holder of a domain name. The Panel finds that
the Complainant is guilty of Reverse Domain Name Hijacking.

7. Decision
For the foregoing reasons, the Complaint is denied.

John Swinson
Presiding Panelist

Kaya Kkl
Panelist

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Tony Willoughby
Panelist
Date: December 15, 2015