WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION D-Market Elektronik Hizmetler Ve Ticaret Anonim Şirketi v. Uğur Sinan Sevinç Case No. D2010-0432 1. The Parties
Complainant is D-Market Elektronik Hizmetler Ve Ticaret Anonim Şirketi of Istanbul, Turkey, represented by Dericioğlu & Yaşar Law Office, Turkey.
Respondent is Uğur Sinan Sevinç of Istanbul, Turkey. 2. The Domain Name and Registrar
The disputed domain name is registered with Key-Systems GmbH dba . 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 Key-Systems GmbH dba a request for registrar verification in connection with the disputed domain name. On March 22, 2010, Key-Systems GmbH dba transmitted by email to the Center its verification response, confirming that 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 Respondent of the Complaint, and the proceedings commenced on April 19, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was May 9, 2010. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on May 10, 2010.
The Center appointed Nasser A. Khasawneh as sole panelist in this matter on May 17, 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
Complainant owns Turkish Trademark Registration No. 2000 20142 for the service mark logo HEPSİBURADA.COM in classes 35, 38 and 42, and has developed a substantial presence as an online shopping site for a variety of goods over the past ten years under the mark HEPSİBURADA.COM.
The disputed domain name was registered on February 18, 2008 and does not presently resolve to any active webpage.1 As recently as April 19, 2010, however, the disputed domain name resolved to a Turkish-language website offering for sale laser printers, fax machines and related products and supplies. 5. Parties' Contentions A. Complainant
Complainant avers that for several years it has operated an extremely successful online shopping website which carries a wide variety of products, associated with the term “hepsiburada.” Complainant avers that its website has 2 million registered members and a monthly average of 5.5 million individual users. Complainant avers that its “hepsiburada” business is a leader in its field and is well known in Turkey.
Complainant details recent awards for its leadership, quality and popularity in the online shopping sector. Complainant avers that it registered the domain names and in 2000 and 2003, respectively, for active use since that time in association with the H online service.
Among its legal contentions, Complainant alleges that Respondent adopted the disputed domain name due to its confusing similarity to the “Hepsiburada” name, in which Complainant has priority rights, and which is well established to identify Complainant's business in Turkey.
Complainant also contends that Respondent has no rights or legitimate interests in the disputed domain name, on the basis that Complainant has not licensed or otherwise permitted Respondent to use any of its trademarks or to apply for or use any domain name incorporating its marks. Since the disputed domain name is used for an e-commerce website, Complainant alleges, it is not possible to consider such use as “noncommercial use” or “fair use.” 2 Complainant also contends that there is no bona fide use of the disputed domain name by Respondent.
Finally, addressing registration and use in bad faith, Complainant alleges that (1) since Complainant's trademark is well known, it is obvious that Respondent intended to take advantage of the reputation for quality developed by Complainant over the years, (2) Respondent failed to respond to Complainant's letter warning Respondent respecting unauthorized use of Complainant's trademarks in the disputed domain name, and (3) Respondent's use of the disputed domain name to resolve to an e-commerce discount website, the same sector for which Complainant's Hepsiburada website is widely known, establishes bad faith.
In light of the above, Complainant requests transfer of the disputed domain name. B. Respondent
Respondent did not reply to Complainant's contentions. 6. Discussion and Findings
The Rules require the Panel to decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. Rules, paragraph 15(a). Complainant must establish each element of paragraph 4(a) of the Policy, namely:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) 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.
Complainant must establish these elements even if Respondent does not submit a Response. See, e.g., The Vanguard Group, Inc. v. Lorna Kang,WIPO Case No. D2002-1064. In the absence of a Response, the Panel may also accept as true the reasonable factual allegations in the Complaint. See, e.g., ThyssenKrupp USA, Inc. v. Richard Giardini,WIPO Case No. D2001-1425 (citing Talk City, Inc. v. Michael Robertson,WIPO Case No. D2000-0009). A. Identical or Confusingly Similar
Although the disputed domain name is not identical to Complainant's HEPSİBURADA.COM mark, the Panel agrees that the disputed domain name is confusingly similar to Complainant's mark.
Under the Policy, it is sufficient for a complainant to show that it has a trademark somewhere in the world, whether or not registered, at the time of the filing of the Complaint. Complainant has registered service mark rights in the logo mark HEPSİBURADA.COM in Turkey, and the distinctive feature of that mark is the letters “.”3
The test of identity or confusing similarity under the Policy is confined to a comparison of the disputed domain name and the trademark alone. Wal-Mart Stores, Inc. v. Traffic Yoon,WIPO Case No. D2006-0812. The top level domain “.com” in the disputed domain name is to be disregarded. Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr.,WIPO Case No. D2000-1525; Rollerblade, Inc. v. Chris McCrady,WIPO Case No. D2000-0429.
The disputed domain name is not identical to Complainant's HEPSİBURADA.COM mark, but the addition to the mark of “indirimli,” the Turkish descriptive word for “discount,” does nothing to detract from its distinctiveness. Accordingly, the Panel finds the disputed domain name to be confusingly similar to Complainant's mark. See e.g., Sanofi-aventis, Sanofi-aventis Deutschland GmbH v. Andrey Mitrofanov,WIPO Case No. D2007-1772; Giata Gesellschaft für die Entwicklung und Vermarktung interaktiver Tourismusanwendungen mbH v. Keyword Marketing, Inc.,WIPO Case No. D2006-1137; Hoffmann-La Roche Inc. v. Aneko Bohner,WIPO Case No. D2006-0629.
The Panel concludes that the disputed domain name is confusingly similar to the registered mark of Complainant and that the requirements of paragraph 4(a)(i) of the Policy are fulfilled. B. Rights or Legitimate Interests
The Panel also concludes that Respondent has no rights or legitimate interests in the disputed domain name.
The Policy contains a non-exhaustive list of circumstances that may demonstrate when a respondent has rights or legitimate interests in the use of a domain name. The list includes: (1) the use of the “domain name in connection with a bona fide offering of goods and services”; (2) an entity being commonly known by the domain name; or (3) the making of “a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers . . . .”. Policy, paragraphs 4(c)(i)–(iii).
Complainant must show a prima facie case, proving the negative, that Respondent lacks rights or legitimate interests. See e.g., Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455. The absence of rights or legitimate interests is established if a complainant makes out a prima facie case and the respondent enters no reply. Id., (citing De Agostini S.p.A. v. Marco Cialone,WIPO Case No. DTV2002 -0005).
Complainant avers that Respondent is not commonly known by the disputed domain name, does not offer services related to Complainant's mark, and that Respondent has no license to use the mark. In the absence of a Response, the Panel accepts these undisputed facts as true.
Complainant also contends that Respondent's use of the disputed domain name is commercial, and not noncommercial, because the website to which the disputed domain name resolved is an e-commerce website.
As noted above, the Complaint did not include proof of the content of the website. However, the Panel has viewed archives of the website to which the disputed domain name resolved in April; the content visible at that time supports the Complaint's allegations that the website was used for e-commerce. Therefore, the Panel rules that Respondent is not making a legitimate noncommercial or fair use of the disputed domain name.
The Panel finds that Complainant has established a prima facie case. In refraining from submitting a Response, Respondent has brought to the Panel's attention no circumstances from which the Panel could infer that Respondent has rights or legitimate interests in making use of the disputed domain name.
Therefore, the Panel concludes that the second element of paragraph 4(a) of the Policy is established. C. Registered and Used in Bad Faith
The Panel also concludes that Respondent has registered and is using the disputed domain names in bad faith, as explained below.
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which are evidence of the registration and use of the domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy:
(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;
(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;
(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 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 the respondent's website or location or of a product or service on its website or location.
These circumstances are not exhaustive, however, and panels may draw inferences about bad faith registration or use in light of the circumstances, such as whether the trademarks in question are well known, whether there is no response to the complaint, concealment of identity, and other circumstances. See e.g., Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003.
It is the Panel's view that Respondent knew of Complainant's mark when Respondent registered the disputed domain name, for the following reasons. First, it appears that Complainant's mark and associated online marketplace is well known in Turkey, the country of Respondent's address. Second, Complainant's service mark was in use for several years before the registration of the disputed domain name. Therefore, this Panel finds “that Respondent most likely was aware of Complainant's [service] mark when it registered the disputed domain name. It seems [highly] unlikely . . . that Respondent would have chosen this name randomly.” Kahn Lucas Lancaster, Inc. v. Marketing Total S.A.,WIPO Case No. D2007-1236. Thus, the Panel finds that Respondent registered the disputed domain name in bad faith.
It remains to be determined whether Respondent, in addition to registering in bad faith, is also using the disputed domain name in bad faith.4 Despite the fact that the record contains little direct evidence relating to the first three illustrative circumstances in paragraph 4(b) of the Policy quoted above, the Panel nevertheless concludes that Respondent is also using the domain name in bad faith, as explained below.
First, Respondent has chosen to refrain from filing a Response to the Complaint, and thus has not provided any evidence or arguments to counter the Complainants submissions on this point. Second, the Panel accepts as true Complaint's uncontroverted allegation that Respondent received and refrained from responding to Complainant's warning letter, a clear indication of bad faith use. Third, the Panel has determined that Respondent knew of Complainant's mark, which was well known in Respondent's home country.
In summary, the Panel concludes that, based on the circumstances appearing in the record, Respondent “has intentionally attempted 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 the respondent's website or location or of a product or service on its website or location.” Policy, paragraph 4(b)(iv); Telstra Corporation Limited, supra.
The Panel concludes that the requirements of paragraph 4(a)(iii) of the Policy are fulfilled. 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 Complainant.
Nasser A. Khasawneh
Sole Panelist
Dated: May 31, 2010
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