The Complainant is Titanium Metals Corporation of Dallas, Texas, United States of America, represented by Simmons & Simmons, United Kingdom of Great Britain and Northern Ireland.
The Respondent is Atak Teknoloji Ltd. Sti. of Kocaeli, Turkey. 2. The Domain Name and Registrar
The disputed domain names and are registered with 1API GmbH. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 2, 2010. On September 3, 2010, the Center transmitted by email to 1API GmbH a request for registrar verification in connection with the disputed domain name. On September 8, 2010, 1API GmbH 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 September 8, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was September 28, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 1, 2010.
The Center appointed Gökhan Gökçe as the sole panelist in this matter on October 15, 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.
Due to unforeseen circumstances, the due date for decision in this matter has been extended to the date shown at the bottom of this decision. 4. Factual Background
The Complainant was founded in 1950, was incorporated in Delaware in 1955 and is a publicly listed company with shares quoted on the New York Stock Exchange. The Complainant is a leading manufacturer of titanium-based metals products used in hundreds of diverse aerospace, industrial and emerging applications and has a global presence, including premises in the United States of America, the United Kingdom, France and Italy. Its headquarters are in Dallas, Texas.
The Complainant is very well known the world over, including in Europe, under the Timet name. The company is commonly referred to as TIMET, a shortened version of "TItanium METals” and the Complainant owns over 65 trademark registrations worldwide for its various marks which consist of or contain the word TIMET for metals, titanium and titanium alloys in Class 6.
On January 15, 1993 the Complainant filed its trade mark TIMET with the United Kingdom Intellectual Property Office (IPO), registered the same trademark as a Community Trademark before the Office for Harmonization in the Internal Market (OHIM) on August 12, 1998 and on December 18, 1979 registered its trademark with the United States Patent and Trademark Office (USPTO). The Complainant also registered the Trademark TIMET with its logo with the IPO on September 30, 1994, before the OHIM on March 1, 2000 and with the UPTSO on March 17, 1959, renewed on September 12, 2000.
The Complainant owns the registered domain name , as well as the following domain names also including the “Timet” name or variants thereon ; ; and . The Complainant registered the domain name on March 9, 1996.
The Respondent is a company who registered the disputed domain names and . The Respondent registered both disputed domain names on March 13, 2008. 5. Parties’ Contentions A. Complainant
In accordance with paragraph 4 of the Policy, the Complainant requests that the domain names and be transferred to the Complainant.
The Complainant submits the grounds for these proceedings are listed in paragraph 4(a) of the Policy. Identical or Confusingly Similar
The Complainant filed its trademark TIMET with the Intellectual Property Office (IPO) on January 15, 1993, and registered it as a Community Trademark before the OHIM on August 12, 1998 and with the USPTO on December 18, 1979. The Complainant also registered the Trademark TIMET with its logo with the IPO on September 30, 1994, before the OHIM on March 1, 2000 and with the USPTO on March 17, 1959, renewed on September 12, 2000. The Complainant states it has invested significant energy and resources in the protection of its trade marks around the world and has built up goodwill and reputation in the TIMET mark in relation to titanium and other metals.
The Complainant contends that the disputed domain names are identical or confusingly similar to the Complainant’s trademark TIMET as the distinctive part of the domain name is identical to the Complainant’s trademark. The Complainant further contends that the addition of descriptive, generic terms to a trade mark is generally not a distinguishing feature, but actually increases the likelihood of confusion and points to the fact that “titanyum” (which is Turkish for “titanium”) is descriptive of the products that the Complainant is the largest supplier of in the world. Rights or Legitimate Interests
The Complainant submits that the Respondent has no rights or legitimate interests in respect of the disputed domain names. The Complainant contends it has not licensed nor permitted the Respondent to use any of its trade marks nor has it licensed or otherwise permitted the Respondent to apply for or use any domain name incorporating its trade mark. The Complainant further submits the Respondent is not commonly known by the disputed domain names, is not making a legitimate noncommercial or fair use of the disputed domain names, without intent for commercial gain misleadingly to divert consumers or to tarnish the Complainant's trade marks in issue.
The Complainant notes its use and registration of its TIMET trademarks predate the registration of the disputed domain names (March 13, 2008) by many years. Registered and Used in Bad Faith
The Complainant submits that the disputed domain names have been registered in bad faith and submits that the Respondent registered the domain names for the purpose of confusing Internet users and intentionally attempted to attract for commercial gain, Internet users to the Respondent's web sites or other online location, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the Respondent's web sites or location or of a product or service on the Respondent's websites or location.
The Complainant points to the fact the disputed domain names will cause the Complainant’s customers confusion as any Internet user interested in titanium products or the titanium industry will know that the Complainant is the world's largest supplier of titanium products, and that those products are supplied under the TIMET mark. It is further submitted that an Internet user would be confused into thinking that any websites at the disputed domain names were in some way sponsored, affiliated or endorsed by the Complainant. The Complainant states that this confusion is heightened when one considers that the disputed domain name resolves to a website offering for sale titanium products for a company apparently named Timet Titanium & Medikal & Mining.
The Complainant asserts that the Respondent has acted in bad faith as it has attempted to conceal its real identity by providing contact details of its web developer, Atak Teknoloji Ltd. Sti., rather than its own. B. Respondent
The Respondent did not reply to the Complainant’s contentions. Pursuant to paragraph 5(e) of the Rules, if a Respondent does not submit a Response, in the absence of exceptional circumstances, the Panel shall decide the dispute based upon the complaint.
However, failure to respond in a Policy proceeding does not constitute an admission of any pleaded matter. The Panel will proceed to evaluate the Complainant’s evidence and his own examination of Respondent’s website against the requirements of paragraph 4(a) of the Policy, Stanworth Development Limited v. E Net Marketing Ltd.,WIPO Case No. D2007-1228. 6. Discussion and Findings
Paragraph 4(a) of the Policy sets forth the following three elements which the Complainant must prove, during the administrative proceedings, to merit a finding that the domain name of the Respondent be transferred to the Complainant:
(a) The domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(b) The Respondent has no rights or legitimate interests in respect of the domain name; and,
(c) The domain name has been registered and is being used in bad faith.
Pursuant to paragraph 15(a) of the Rules, the Panel shall decide a 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.
In the absence of a reply from the Respondent the Complainant must still establish the elements of paragraph 4(a) of the Policy, however, the Panel may accept as true factual allegations in the Complaint, Belupo d.d. v. WACHEM d.o.o.,WIPO Case No. D2004-0110. A. Identical or Confusingly Similar
The Policy requires the Complainant to demonstrate that the disputed domain names are identical or confusingly similar to a trademark in which the Complainant has rights.
The Complainant registered its trademark TIMET with the IPO, OHIM and UPTSO and its earliest registration is 1959 with UPTSO as evidenced in Annex 8 to the Complaint. The Panel therefore accepts that the Complainant is the owner of and has exclusive rights in the trademark TIMET, T. Rowe Price Associates, Inc. v. J A Rich, WIPO Case No. D2001-1044.
There is no doubt that the Complainant owns the trademark TIMET and the Panel finds that the disputed domain names are virtually the same as the Complainant’s TIMET trademark as it is fully incorporated within the disputed domain names and comprises the dominant portion thereof. See Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr., WIPO Case No. D2000-1525, “when a domain name wholly incorporates a complainant’s registered mark, which is sufficient to establish identity or confusing similarity for the purposes of the Policy”.
The Panel finds that the addition of the generic word “titanium” or “titanyum”, meaning titanium in the Turkish language, does not distinguish the disputed domain names from the Complainant’s mark, Veuve Clicquot Ponsardin v. Net-Promotion, Inc.,WIPO Case No. D2000-0347. Furthermore the generic term in this case is directly related to the Complainant’s business, and the Panel notes the addition of a generic word may be especially confusing where the generic word bears an obvious relationship to the Complainant’s business.
In view of the foregoing, the Panel recognises the Complainant’s rights and concludes that the disputed domain names are confusingly similar to the Complainant’s trademark. The Panel finds that the addition of a generic word after the Complainant’s registered trademark does not adequately distinguish the disputed domain name and that it is likely to increase the likelihood of confusion. The requirements in paragraph 4(a)(i) of the Policy are fulfilled, consequently, the Complainant has succeeded on this first element under the Policy. B. Rights or Legitimate Interests
In order to satisfy the Policy the Complainant must show a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain names, Croatia Airlines d.d. v Modern Empire Internet Ltd.,WIPO Case No. D2003-0455. The Complainant submits the Respondent has no rights or legitimate interests as the Respondent is not using the disputed domain names in connection with a bona fide offering of goods or services, is not commonly known by the disputed domain names and is not using the domain names for a legitimate noncommercial or fair use.
Furthermore, the Complainant claims the Respondent was fully aware of the Complainant’s established reputation and contends the only conceivable interest and reason for registering the disputed domain names was to create a connection to the Complainant and its trademark.
Although one of the disputed domain names, namely, , is being used for an operative website apparently displaying titanium goods, the Panel recognises the Complainant’s reputation in its field of activities and is satisfied that it is unlikely that the Respondent would not have known about the Complainant’s trademark. In this context, the Panel finds that this suggests that the Respondent registered the disputed domain name in order to create an association with the Complainant as the website appears to promote similar goods and services to those offered by the Complainant, and clearly displays the word “timet”.
The second domain name, , connects to a pay-per-click website, which the Panel notes does not constitute either a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the domain name. The Respondent did not file a Response and there is nothing before the Panel to support the existence of the Respondent’s rights in the disputed domain name or that any of the circumstances listed in paragraph 4(c) of the Policy would apply. The Respondent was unable to demonstrate a legitimate interest or right in the disputed domain names. The Panel therefore concludes that the Respondent has not satisfied paragraph 4(c) of the Policy and concludes that the Respondent has no rights or legitimate interests in both disputed domain names.
The requirements of paragraph 4(a)(ii) of the Policy are fulfilled and consequently the Panel finds in favour of the Complainant on the second element of the Policy. C. Registered and Used in Bad Faith
As discussed above, the disputed domain names are confusingly similar to the Complainant’s TIMET trademark which was registered long before the registration of the disputed domain names. The Panel is of the opinion that the person or entity deriving benefit from the use of the disputed domain name, , may be active in the same industry as the Complainant, and that in consideration of the size and history of the Complainant’s business, it is unlikely that the Respondent was unaware that TIMET was a well known and established mark in the titanium and metals industry. Therefore the Panel finds that the Respondent must have been aware of the Complainant’s trademark at the time of registration of the domain name and draws an inference of bad faith, Parfums Christian Dior v. Javier Garcia Quintas and C,WIPO Case No. D2000-0226.
It therefore follows that the Respondent, at the time of registration, must have been aware that any legitimate commercial use of the disputed domain names would result in a violation of the Complainant’s trademark rights, suggesting that there was never an intention of good faith use, Telstra Corporation Ltd. v. Nuclear Marshmallows,WIPO Case No. D2000-0003. With respect to the disputed domain name, , it resolves to an active website offering pay-per-click links, presumably generating revenue for the Respondent, and there is no evidence or suggestion that the Respondent has any intention of using this disputed domain name for any purpose or legitimate activity consistent with good faith use. The Panel thus finds that the Respondent has used both disputed domain names to misleadingly divert Internet users to its websites for commercial gain, indicative of bad faith under paragraph 4(b)(iv) of the Policy. After examining all circumstances surrounding the registration and use of the disputed domain names, the Panel finds that the Respondent registered and is using the disputed domain names in bad faith.
The Panel finds that in the circumstances the Respondent’s lack of Response further suggests bad faith, Awesome Kids LLC and/or Awesome Kids L.L.C v. Selavy Communications,WIPO Case No. D2001-0210. Accordingly the Panel finds in favour of the Complainant on the third element 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 names, and be transferred to the Complainant.
Gökhan Gökçe
Sole Panelist
Dated: November 22, 2010
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