WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Horoz Lojistik Ve Kargo Hizmetleri Tic A.S. v. Tuncer Ayirkan, Horoz Transport Case No. D2009-0769 1. The Parties
The Complainant is Horoz Lojistik Ve Kargo Hizmetleri Tic A.S. of Esenyurt, Istanbul, Turkey, represented by Gür Law & IP Firm, Turkey.
The Respondent is Tuncer Ayirkan, Horoz Transport of Kadikoy, Istanbul, Turkey. 2. The Domain Name and Registrar
The disputed domain name is registered with UK2 Group Ltd. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 11, 2009. On June 12, 2009, the Center transmitted by email to UK2 Group Ltd. a request for registrar verification in connection with the disputed domain name. On June 15, 2009, UK2 Group Ltd. 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on June 25, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was July 15, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on July 16, 2009.
The Center appointed Dilek Ustun as the sole panelist in this matter on July 22, 2009. 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. 4. Factual Background
The Complainant Horoz Lojistik ve Kargo Hizmetleri Tic A.S. was founded in 1942 by Mehmet Emin Horoz to operate on land and railway transportation, warehouse keeping and stockpiling.
The Complainant Horoz Lojistik ve Kargo Hizmetleri Tic A.S. has the following trademarks registered by the Turkish Patent Institute.
HOROZ – registered in the Republic of Turkey in 2000 by the Turkish Patent Institute, Trademark No. 2000 10974.
HOROZ YATİRİM HOLDİNG A.S. LOJİSTİK KARGO TAŞIT SERVİS with Device registered in the Republic of Turkey in 2003 by the Turkish Patent Institute, Trademark No. 2003 24983.
The Complainant's domain name was registered on June 18, 1998, by Middle East Technical University, the country code ‘.tr' domain name administration authority.
The disputed domain name was created on June 21, 2006. 5. Parties' Contentions A. Complainant
The Complainant contends that:
1. The disputed domain name is identical or confusingly similar to the Complainant's well-known trade/service marks.
2. The Respondent has no rights or legitimate interests in respect of the domain name. The Complainant argues, inter alia, that the Respondent is not using the domain name in connection with a bona fide offering of goods and services. The Complainant also contends that the domain name in question is not a term by which the Respondent is commonly known, and that the Respondent is not making a legitimate noncommercial or fair use of the domain name.
3. The domain name was registered and is being used in bad faith. The Respondent intentionally attempted to attract for commercial gain, Internet users to the Respondent's web site and other on-line location, by creating a likelihood of confusion with the Complainant's mark as to the source. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
According to paragraph 15(a) of the Rules: “A Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.” Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:
(i) [that the] domain name [registered by the Respondent] is identical or confusingly similar to a trademark or a service mark in which the Complainant has rights; and
(ii) [that the Respondent has] no rights or legitimate interests in respect of the domain name; and
(iii) [that the] domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The Complainant has proven that it owns a registered trademark/service mark comprising solely of the term “HOROZ”.
By the time the Respondent registered the domain name in his own name, the Complainant was already a well-known establishment in Turkey.
It is generally understood that for purposes of the Policy a right in a trademark can be established by a trademark registration or a showing of unregistered trademark rights. The latter is the case when the mark has been established on the market (See: Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003 and ASSA ABLOY AB v. P D S AB, WIPO Case No. D2000-0442). Here the Panel notes the issue of unregistered marks does not arise as the Complainant has demonstrated it has registered trademark rights.
Numerous Policy decisions have recognized that the incorporation of a trademark in its entirety may be sufficient to establish that a domain name is identical or confusingly similar to a complainant's trademark (See, Yapi Ve Kredi Bankasi A.S. v. Internet Bazaar AS, NAF Claim No. FA98243; Quixtar Investments, Inc. v. Dennis Hoffman,WIPO Case No. D2000-0253).
With regards to the addition of the word “transport” to the Complainant's trademark in the disputed domain name, the Panel reaches the same conclusion as the panel in Turkcell Iletisim Hizmetleri A.S. v. Celile Gun,WIPO Case No. D2008-0128.
“The use of a generic term (i.e. “technology”) or the translated version of the Complainant's mark does not, by itself, remove the element of confusing similarity in the context of this proceeding. Although the word “technology” on its own is a generic word, the use of the Complainant's TURKCELL mark in combination therewith renders the domain name confusingly similar to the Complainant's TURKCELL and TURKCELLTEKNOLOJI marks.”
Based on the fact that the Respondent's domain name fully contains one of the Complainant's trademarks and adds a term that corresponds the Complainant's service (transport) the disputed domain name is confusingly similar to the Complainant's trademarks, and the Panel is satisfied that the first element of paragraph 4(a) of the Policy has been proven by the Complainant. B. Rights or Legitimate Interests
The Panel notes that there is no obligation upon trademark owners, or indeed anybody else, to register domain names of any kind. A trademark owner's failure to register a trademark as a domain name, thereby leaving it available for registration by someone else, of itself gives that “someone else” no rights within the terms of the Policy. See Adidas AG v. Zhifang Wu,WIPO Case No. D2007-0032.
The obligation is upon the Respondent to avoid violating the rights of any third party. Paragraph 2 of the Policy provides:
“By applying to register a domain name, or by asking us to maintain or renew a domain name registration, you hereby represent and warrant to us that (a) the statements that you made in your Registration Agreement are complete and accurate; (b) to your knowledge, the registration of the domain name will not infringe upon or otherwise violate the rights of any third party; (c) you are not registering the domain name for an unlawful purpose; and (d) you will not knowingly use the domain name in violation of any applicable laws or regulations. It is your responsibility to determine whether your domain name registration infringes or violates someone else's rights.”
It is now well settled that in UDRP proceedings it suffices for a complainant to demonstrate prima facie that a respondent does not have rights or legitimate interests to a disputed domain name. If the respondent then does not rebut such showing, it may be deemed that the respondent has no rights or legitimate interests.
Here, the Panel is satisfied that the Complainant has made a prima facie showing on the Respondent not having rights to the disputed domain name. Even though it could be argued that the Respondent has a defense under paragraph 4(c)(ii) of the Policy (i.e. “you (as an individual, business, or other organization) have been commonly known by the domain name”) as the Respondent here is “Tuncer Ayirkan, Horoz Transport”. However, the Panel finds it more likely than not that this is just an attempt by the Respondent to avoid these proceedings as the Respondent did not reply to the Complainant's contentions and has not provided any evidence of the type as specified in paragraph 4(c)(ii) of the Policy, or any other circumstances giving rise to a right or legitimate interest in the disputed domain name.
The Panel therefore concludes, also in view of the Panel's findings below, that the Respondent has no rights or legitimate interests in the domain name and that the requirement of the UDRP paragraph 4(a)(ii) is satisfied. C. Registered and Used in Bad Faith
The domain name does not resolve to any web page at the moment. However, the Complaint's annexes demonstrate how the domain name was used in the past. The Respondent used the domain name to display a web site titled “Horoz Transport”, in which it was stated that “Horoz Transport-Evden Eve Nakliyat Hizmetleri, which translated into English means: Horoz Transport –Transport Services Home to Home”. Thus, the Respondent was using the domain name to offer seemingly competing services to those of the Complainant and the Respondent was thus creating a likelihood of confusion with the Complainant's registered service mark and the domain name.
Paragraph 4(b)(iv) of the Policy states that if the Panel finds that the Respondent has used the domain name to intentionally attempt to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation or endorsement of its website, it should be taken as evidence of the registration and use of the domain name in bad faith. The Panel so finds. The Panel also finds that taking down the website at the disputed domain name at a later stage further suggests the Respondent's bad faith.
The Panel concludes that the domain name was registered and is being used in bad faith within the meaning of paragraph 4(a)(iii) of the Policy. 7. Decision
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 be transferred to the Complainant.
Dilek Ustun
Sole Panelist
Dated: July 27, 2009
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