Genelkurmay.net (Red)
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ADMINISTRATIVE PANEL DECISION
Genelkurmay Baskanligi v. Genelkurmay Inc.
Case No. D2001-1279
1. The Parties
The Complainant is Genelkurmay Baskanligi, 06100 Bakanliklar-Ankara, Turkey, and is represented by Mr. Abdullah Kaya, Generalkurmay Baskanligi Adli Musavirligi Prj.Sb. 06100 Bakanliklar-Ankara, Turkey.
The Respondent is Genelkurmay Inc, 900 S. Quince Street B-213 Denver, Co 80231, USA.
2. The Domain Name and Registrar
The Domain Name at issue is
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the Center) by e-mail on October 22, 2001, and a hardcopy was received by the Center on October 30, 2001. The Center acknowledged the receipt of the Complaint on October 24, 2001.
On October 26, 2001, the Center sent to NSI a request for verification of registration data and on October 30, 2001, NSI confirmed that it is the Registrar, that the Respondent is the Registrant of the domain name
WIPO verified that the Complaint satisfies the Rules for Uniform Domain Name Dispute Resolution Policy (“the Rules”) and the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (“Supplemental Rules”) and that payment was properly made. The Panel is satisfied this is the case.
On October 30, 2001, the Complaint was notified and on November 2, 2001, the notification was corrected, in accordance with the Rules, paragraph 2(a), and the administrative proceedings commenced. On November 26, 2001, the Center sent to the Respondent the Notification of Respondent Default.
On December 4, 2001, the Center notified the Parties that an Administrative Panel, composed of a single member, Dr. Gerd F. Kunze, had been appointed and that the Panelist had duly submitted a Statement of Acceptance and Declaration of Impartiality and Independence to the Center.
No further submissions were received by the Center or the Panel. The date scheduled for issuance of the Panel’s decision is December 18, 2001.
4. Factual Background
A. Complainant
The Complainant is the Chief of the General Staff (“Genelkurmay”) who is the commander of the armed forces of the Republic of Turkey. The function of the Chief of Gemelkurmay is in execution of Art. 117 of the Constitution of the Republic of Turkey regulated by Law No 1324 (“Code of the Authority and duties of the Chief of General Staff”). In these legal codes, of which the original and the English translation are attached to the Complaint, “Genelkurmay” is mentioned as an official institution independent from any ministries, working under the supervision of the Prime Minister. In principle the tasks of the General Staff are of sovereign nature and the Complainant is, at least generally, not acting under private law. In execution of its authority, the General Staff issues a monthly Bulletin, called GENELKURMAY BÜLTENI.
B. Respondent
The Respondent registered on September 4, 1999, the domain name
5. Parties’ Contentions
A. Complainant
The Complainant submits that (1) the domain name
B. Respondent
The Respondent failed to submit a Response.
6. Discussion and findings
Paragraph 4(a) of the Policy lists three elements that the Complainant must prove to merit a finding that the domain name of the Respondent be transferred to the Complainant:
1) The domain name is identical or confusingly similar to a trademark or service mark (“mark”) in which the Complainant has rights; and
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.
1) Confusing similarity with a mark in which the Complainant has rights
The Complainant does not submit to have (registered or unregistered) trademark rights in the word “genelkurmay”. It only refers to its rights, arising from the Constitution and from Law, and follows from these rights that it has its own rights to protect the intellectual property of the word “genelkurmay” in the domain name registration system. It is not surprising that the Complainant does not dispose of a trademark registration for the word “genelkurmay”, since for the exercise of its tasks and duties, which normally do not include offering goods or services on the market for sale, the Complainant does not need such trademark protection.
The Panelist can accept the argument of the Complainant that, within its authority, it has the right to register domain names, such as the domain name
The Complainant has neither stated that it has such rights nor has it submitted any evidence to that extent. It has simply submitted two specimen of the monthly Bulletin GENELKURMAY BÜLTENI as annex to the Complaint, without any comments as to the manner in which that Bulletin is distributed. The Panelist therefore assumes that this Bulletin is just a means of information and not a brochure offered on the market for sale. Therefore, the use of the word “genelkurmay” as part of the title GENELKURMAY BÜLTENI of that brochure does not constitute use as a mark. Even if the Bulletin were offered on the market in order to be purchased by interested customers, and if such use of the word “genelkurmay as title of that Bulletin were to be considered as trademark use, this does not necessarily mean that the Complainant has rights in a mark. Such rights normally are acquired by trademark (respectively service mark) registration. Only exceptionally trademark protection is granted (by Trademark Law or by common law principles) based on use. However, in such cases simple use is generally not sufficient. For example, under German Trademark Law the sign must have been used to an extent that as a consequence of such use it has acquired secondary meaning as a mark for the goods or services offered under that sign. Similar provisions exist in the Trademark Laws of some other European countries. Since the Complainant has submitted no arguments or evidence of use of the term “genelkurmay” as a mark, the Panelist sees no need to enter in a study of Turkish Trademark Law in order to check whether and, if yes, under which conditions marks may be protected by the Law without being registered. Also, the Panelist need not determine whether the Complainant may have other intellectual property rights at the name “genelkurmay” (such as the right in a personal name under general principles of private law), since for the time being the application of the Policy is restricted to rights in a mark (it is under discussion, whether the Policy should be extended to other Intellectual Property Rights, however no decision has been taken yet). Unregistered trademark rights held by public bodies have been found to meet the first condition in other UDRP cases, such as, The State of the Netherlands v. Goldnames, Inc., WIPO Case No. D2001-0520 and Skattedirektoratet v. Eivind Nag, WIPO Case No. D2000-1314. However, in the said two cases the Complainants filed sufficient evidence to prove that unregistered trademark rights were established. In the present case, such evidence has not been filed by the Complainant.
In conclusion the fact that the Complainant, for the execution of its tasks and duties under its authority accorded to it by law, normally does not need trademark protection by registration for the term “genelkurmay”, and therefore may not have envisaged to achieve such trademark registration, is fatal for the Complainant under the Policy.
Since the Complainant does not fulfill the first condition of the Policy, to have rights in a mark, to which the domain name
7. Decision
The Panel decides that the Complainant has not proven that it has rights in a mark, to which the domain name
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Dr. Gerd F. Kunze
Sole Panelist
Dated: December 18, 2001
http://www.wipo.int/amc/en/domains/decisions/html/2001/d2001-1279.html