WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION D-Market Elektronik Hizmetler Ve Ticaret Anonim Şirketi v. Ilker Ustuner Case No. D2010-0430 1. The Parties
The Complainant is D-Market Elektronik Hizmetler Ve Ticaret Anonim Şirketi of Turkey, represented by Dericioğlu & Yaşar Law Office of Turkey.
The Respondent is Ilker Ustuner of Turkey. 2. The Domain Name and Registrar
The disputed domain name is registered with Moniker Online Services, LLC. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 19, 2010. On March 22, 2010, the Center transmitted by email to Moniker Online Services, LLC. a request for registrar verification in connection with the disputed domain name. On March 23, 2010, Moniker Online Services, LLC 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 March 25, 2010 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on March 29, 2010. The Center verified that 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on March 31, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was April 20, 2010. The Response was filed with the Center on April 19, 2010.
The Center appointed Dilek Ustun as the sole panelist in this matter on April 21, 2010. 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 is well-known and recognized over the past years in the sector with the term HEPSIBURADA.COM which is an e-commerce platform throughout Turkey.
The Complainant owns the trademark HEPSIBURADA.COM, which was registered with the number 2000 20142 effective from September 22, 2000.
The Complainant owns the domain names and respectively registered on July 4, 2000 and May 9, 2003.
The disputed domain name was first registered on September 23, 2005 (as indicated by the Registrar and by the “creation date” in the WhoIs record). 5. Parties' Contentions A. Complainant
(i) The Complainant states that they have prior rights on the term HEPSIBURADA.COM and the disputed domain name is confusingly similar to the Complainant's mark HEPSIBURADA.COM.
(ii) The Respondent has no rights or legitimate interests in respect of the domain name. There is no evidence, which suggests that the Respondent trades under or is commonly known by said domain name or the name “hepsiburada”, or is making a legitimate non-commercial or fair use of the domain name.
(iii) The Respondent has registered and is using the domain name in bad faith. B. Respondent
The Respondent filed a Response to the allegations in the Complaint claiming that he intended to use the disputed domain name for a healthcare website based on a generic term. The Respondent requests the Panel to deny the requested transfer the disputed domain name to the Complainant. 6. Discussion and Findings
Paragraph 15(a) of the Rules requires the Panel to decide a Complaint on the basis of the statements and documents submitted in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
Under paragraph 4(a) of the Policy, the Complainant bears the burden of showing:
(i) that the domain name registered by the Respondent is identical or confusingly similar to a trademark or 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 by the Respondent in bad faith. A. Identical or Confusingly Similar
This Complaint is based on the HEPSIBURADA trademark which is a registered trademark of the Complainant. According to the Complaint, the Complainant has been using the trademark HEPSIBURADA.COM since 2000.
Proof of ownership of a registered trademark or service mark is sufficient for the showing of rights required by a complainant for the purposes of paragraph 4(a)(i) of the Policy. In addition, the Complainant relies on the distinctiveness of its mark in Turkey.
Furthermore, the Complainant registered and uses the domain name . The registration of the domain name by the Complainant is significant to the issues to be considered. The Complainant registered the domain name on May 9, 2003. “.” domain names are used by persons and legal entities for commercial purposes, and a “.tr” domain name applicant must submit an official documentation demonstrating that the applicant registered a trademark or corporate name for the words incorporated in the domain name. Due to the stringent application procedure, the Panel believes that the Complainant registered and is a rightful owner of the domain name as it reflects its trademark.
The Panel finds that the Complainant has trademark and/or service mark rights in the name HEPSIBURADA.COM. Since the domain name comprises the Complainant's trademark and/or service mark but with the generic “.net” suffix, the Panel finds that the domain name is confusingly similar to a trademark or service mark in which the Complainant has rights. B. Rights or Legitimate Interests
Despite its claimed plans to use the disputed domain name for a health related website, the Respondent has not provided any evidence of the type specified in paragraph 4(c) of the Policy, or any other circumstances giving rise to a right or legitimate interests in the disputed domain name. It is clear that the Respondent has not demonstrated any bona fide offering of goods and services by its using the disputed domain name or even any evidence that would permit the panel to infer any such planned use. Nor has the Respondent shown that it has been commonly known by the disputed domain name. The Complainant showed that the Respondent has neither a license nor any other permission to use the disputed domain name.
The Panel finds that the Complainant has made a prima facie case that the Respondent lacks right or legitimate interests, and the Respondent has failed to demonstrate such rights or legitimate interests. The Panel finds that given the evidence of record, when the Respondent registered the disputed domain name it must have known that HEPSIBURADA.COM was the trademark of the Complainant; it registered the disputed domain name because it would be recognized as related thereto.
The Panel finds that the Respondent has no rights or legitimate interests in respect of the domain name. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides a list of indicative circumstances that suggest bad faith registration, however, such list is not exhaustive and a finding of bad faith depends on the circumstances of each case.
Based on the circumstances, in the Panel's view, it is reasonable to infer that when the Respondent registered the disputed domain name, he knew that the name was the trademark of the Complainant. The Panel, in accordance with previous decisions issued under the Policy, is of the opinion that this knowledge may be considered as both a precondition and in appropriate cases also an indication of bad faith (see Parfums Christian Dior v. Javier Garcia Quintas and C,WIPO Case No. D2000-0226).
The fact that the disputed domain name is currently inactive does not prevent the Respondent from being in bad faith. The act of keeping a domain name in an inactive state can constitute “bad faith”, where the domain name comprises a name which can only sensibly refer to the Complainant or where there is no obvious possible justification for the selection of the domain name (see Sony Kabushiki Kaisha v. ,WIPO Case No. D2000-1074 and Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003).
The Respondent does not appear to be actively using the disputed domain name. The Panel considers the Respondent's passive holding of the domain name and prevents the owner of the well-known trademark from reflecting the mark in a corresponding domain name, and accordingly paragraph 4(a)(iii) of the Policy provides additional support for determination of bad faith registration. The situation is clear to the Panel that the Respondent has not demonstrated any bona fide offering of goods or services using the disputed domain name. Nor does the Panel believe it likely that Respondent could show that it has been known by the disputed domain name. Rather, the Respondent has registered the domain name having the Complainant and its well-known trademark in mind and with the intention of profiting from the reputation of the Complainant's trademark.
In view of the above, the Panel finds that the Respondent has registered and used the disputed domain name in bad faith, in accordance with 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: May 5, 2010
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