The Complainant is Garaj İletişim Sistemleri Ticaret Limited Şirketi of İstanbul, Turkey, represented by Özgün Öztunç, Turkey.
The Respondent is Umo of Turkey. 2. The Domain Name and Registrar
The disputed domain name is registered with OnlineNic, Inc. d/b/a China-C (the “Registrar”). 3. Procedural History
The Complaint, naming as Respondent “Uğur Soylu”, was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 14, 2011. On February 15, 2011, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 15, 2011, the Registrar 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 and in particular giving the name of the registrant of record as “Umo” and providing corresponding contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amended Complaint on February 28, 2011, in which the registrar-confirmed registrant of record “Umo” was included as named-Respondent.
The Center verified that the Complaint together with 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 2, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was March 22, 2011. The Response was filed with the Center on March 4, 2011. On March 23, 2011, a third party, Mr. Seckin Kacti sent an email communication to the Center, which was followed by further communication from the Mr. Soylu and the Center acknowledged receipt of on the same day. On March 24, 2011, the Complainant filed a reply to points raised in the Mr. Soylu’s and Mr, Kacti’s party’s filings as an unsolicited Supplemental Filing, which the Center acknowledged receipt of on the same date.
The Center appointed Gökhan Gökçe as the sole panelist in this matter on April 1, 2011. 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. The Panel subsequently extended the date for the issuing of its present decision. 4. Factual Background
The Complainant’s company was established in 1998 and is active in the wholesale and retail of mobile communication and products used in mobile communication. The Complainant operates a virtual store through the domain name .
The registrant of the disputed domain name has been identified by the concerned Registrar, OnlineNic, Inc. d/b/a China-C, as being Umo1. The disputed domain name was registered on July 27, 2004 and the Respondent updated the disputed domain name’s registration details on November 19, 2010. 5. Parties’ Contentions A. Complainant
In accordance with paragraph 4(b)(i) of the Policy, the Complainant requests that the disputed domain name 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 submits the disputed domain name is confusingly similar to its trademark TEKNOSEPET.COM which was registered with the Turkish Patent Institute on December 16, 2005 as evidenced in Annex 7 of the Complaint. The Compliant therefore contends that the disputed domain name is identical or confusing the similar to a trademark or service mark in which the Complainant has rights. Rights or Legitimate Interests
The Complainant asserts that the Respondent has no rights or legitimate interests in the disputed domain name. The Complainant states that the Mr. Soylu was one of the partners of the Complainant company as evidenced in the Trade Registry Gazette dated October 14, 2008 at Annex 6 of the Complaint and Mr. Soylu at that time registered the disputed domain name in his own name on behalf of the Complainant, consequently, he was in possession of the passwords and username for the disputed domain name. However, as of November 10, 2010 Mr. Soylu was removed from the Complainant’s company as evidenced at Annex 11 of the Complaint. The Respondent’s removal was announced in the Trade Registry Gazette on November 26, 2010 as evidenced at Annex 12 of the Complaint.
The Complainant submits that the disputed domain name was used by the Complainant for commercial purposes offering online shopping services until November 19, 2010 when Mr. Soylu changed the registration details and passwords of the disputed domain name to obstruct the Complainant’s use of the disputed domain name as evidenced in Annex 1 of the Complaint.
The Complainant notes that the Complainant also registered on November 6, 2008 and is used for commercial purposes offering online shopping services as evidenced in Annex 8 of the Complaint.
The Complainant avers the Respondent has no rights or legitimate interests in respect of the disputed domain name as he is neither a shareholder of the related Company, nor the owner of the trademark. Registered and Used in Bad Faith
The Complainant contends the Respondent is using the disputed domain name in bad faith as he has blocked access to the website to ensure it cannot be used by the Complainant. The disputed domain name is dormant as evidenced in Annex 13 of the Complaint. B. Respondent
The Respondent, Umo, 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 its own examination of the 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.
Mr. Soylu filed a reply to the allegations in the Complaint on March 4, 2011 stating that he is not the registrant of the disputed domain name and is confused as to why he has been named as the Respondent. Mr. Soylu further stated that the Complaint in his belief has been initiated in bad faith by the former partners of the Complainant’s Company that he founded.
On March 23, 2011 the Center received communication from a third party, namely, Seckin Kacti. Within the communication Seckin Kacti claims that he has been in contact with the service provider regarding his domain name and learnt of the WIPO UDRP procedure. The email communication had a trademark application dated March 21, 2011.
Mr. Soylu’s lawyer sent an email communication on March 23, 2011 stating the proper Respondent to this Complaint is Seckin Kacti not his client. 6. Discussion and Findings
There is a procedural matter in relation to Mr. Soylu ’s and Mr. Kacti’s filing of March 23, 2011, and the Complainant’s unsolicited Supplemental Filing on March 24, 2011 which should be disposed of as a preliminary matter.
The Rules make no explicit provision for supplementary filings and they are admissible at the Panel’s discretion, having regard to paragraphs 10(a) and 10 (b) of the Rules to conduct the proceedings in a manner it considers appropriate under the Policy and Rules, subject to the requirements that the parties are treated with equality. The Panel has, therefore, decided to accept the supplemental filings and to take them into consideration when rendering its decision.
The Panel turns to the merits of the case, in accordance with paragraph 4 of the Policy, the Complainant requests that the disputed domain names should be transferred to the Complainant.
The Complainant submits the grounds for these proceedings are listed in paragraph 4(a) of the Policy. A. Identical or Confusingly Similar
Registration of a trademark satisfies the threshold requirement of having trademark rights. The Panel is satisfied that the Complainant is the owner of the trademark TEKNOSEPET.COM as evidenced by trademark certificate which was registered with the Turkish Patent Institute on December 16, 2005 at Annex 7 of the Complaint.
Although, the disputed domain name was registered in 2004 before the trademark registration, as stated at paragraph 1.4 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), registration of a domain name before the Complainant acquires trademark rights in a name does not prevent a finding of identity or confusing similarity under the UDRP.
The Panel also notes that the Complainant has registered the domain name on November 6, 2008. In order to successfully register a “.” domain name the applicant must certify that the domain name applied for is the applicant’s registered trademark or corporate name. Therefore the procedure is quite stringent and demonstrates that as the Complainant is the registered and rightful owner of “.” domain names as it reflects its business name.
It has been stated in several decisions by other UDRP administrative panels that incorporating a trademark in its entirety into a domain name can be sufficient to establish that the domain name is identical or confusingly similar to a registered trademark, Oki Data Americas Inc. v. ASD Inc., WIPO Case No. D2001-0903. The Panel recognises the Complainant’s rights and concludes that the disputed domain names are identical and confusingly similar with the Complainant’s TEKNOSEPET.COM trademark.
The Panel finds that the requirements in paragraph 4(a)(i) of the Policy are fulfilled, consequently, the Panel finds for the Complainant on the first element of the Policy. B. Rights or Legitimate Interests
In accordance with paragraph 4(a)(ii) of the Policy, the Complainant must prove that the Respondent has no rights or legitimate interests in respect of the disputed domain name. Although the Policy states that the Complainant must prove each of the elements in paragraph 4(a), it is often observed that it is difficult for a complainant to prove a negative and it has therefore generally accepted under the Policy that, once a Complainant has presented a prima facie case of a Respondent’s lack of rights or legitimate interests in a domain name, the burden to rebut this shifts to the Respondent.
The Complainant asserts that the Respondent has no rights or legitimate interests in the disputed domain name. Furthermore, the disputed domain name does not currently resolve to a website and therefore there are no grounds to suggest that the Respondent has a right or legitimate interest in using the disputed domain name identical to the Complainant's mark. In the absence of any argument put forward by the Respondent that he has a right or a legitimate interest in the disputed domain name the Complainant has established a prima facie case on this element.
There has been no response put forward by the Respondent and it therefore follows that the Respondent has failed to establish any rights or legitimate interests in the disputed domain name. Nonetheless, submissions have been put forward by Mr. Soylu and Mr. Kacti. Although the Respondent is named as Umo, the Complainant contends that the actual registrant is Mr. Soylu. In the present proceedings, the chain of ownership or control of the disputed domain name is not clearly illuminated by the limited record available, however as discussed in more detail below, on a balance of probabilities the Panel is of the opinion that it is more than likely that Mr. Soylu is either the registrant or associated with the currently named registrant (the Respondent), for that reason the Panel has considered submissions put forward by Mr. Soylu. Similarly, although a direct connection has not been clearly established, the Panel has considered submissions made by Mr. Kacti as it is obvious to the Panel that he is some way connected to the dispute otherwise he would not be aware of the proceedings and would not have submitted any correspondence.
In light of the foregoing, the Panel is of the opinion that in assessing whether or not the Complainant’s claims have been established for the sake of completeness it is appropriate to consider the actions and submissions of both Mr. Soylu and Mr. Kacti. Mr. Soylu claims that he is not the registered owner of the disputed domain name and in his response states that Mr. Kacti is the proper Respondent however does not contend as such that he has rights in the disputed domain name. Mr. Kacti’s has put forward an unsupported claim that he is the owner of the disputed domain name and refers to a trademark application that has been filed to demonstrate rights in the disputed domain name. The Panel finds that Mr. Kacti’s submissions neither establish his ownership of the disputed domain nor as a mere application convincingly establishes any rights or legitimate interests in the disputed domain name under the Policy.
Paragraph 4(a)(ii) of the Policy requires the Complainant to prove that the Respondent has no rights to or legitimate interests in the disputed domain name. The Complainant has established a prima facie case that the Respondent lacks a legitimate right or interest in the disputed domain name. The Respondent failed to demonstrate a right or legitimate interest in the disputed domain name. After consideration of the fact that no submission has been put forward by the Respondent and that the Panel is not convinced by Mr. Soylu and Mr. Kacti’s submissions, the Panel finds that none of the concerned parties have established or demonstrated any rights or legitimate interests in the disputed domain name. 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 the disputed domain name.
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
Once again, for the reasons set out above, the Panel is of the opinion that submissions of Mr. Soylu and Mr. Kacti should be considered in assessing whether the Complainant has established the third element of the Policy.
The Complainant avers that at the time of registration Mr. Soylu was a partner in the Complainant’s company, however, for various reasons he was removed on November 10, 2010 as evidenced at Annex 11 of the Complaint. The disputed domain name registration details were changed on November 19, 2010 as evidenced in Annex 1 of the Complaint, in the absence of any alternative explanation and considering that Mr. Soylu has not denied the Complainant’s contentions that he was in possession of the passwords and username for the disputed domain name, the Panel accepts the Complainant’s contentions as true. In this respect, although, it would appear that at the time of registration the disputed domain name was registered in good faith on the Complainant's behalf, following, Time Equipment Corp. v. Stage Presence, WIPO Case No. D2003-0850; Management Consulting Services, Inc. v. Alternative (DNZVLZZPLD), WIPO Case No. D2005-0233, the Panel finds that in changing the registration details has created a new registration and has treated it as so in assessing bad faith registration and use.
As discussed above, the disputed domain name is confusingly similar to the Complainant’s trademark, the Respondent’s registration details are incomplete however suggest that the Respondent is a resident of Turkey, the Panel is of the opinion that it is unlikely that the Respondent was unaware of the Complainant’s trademark and at very least aware of the Complainant’s identical “.” website. Therefore the Panel finds that the registrant 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 name would result in a violation of the Complainant’s trademark rights, suggesting that there was never an intention of good faith use, Telstra Corp. Ltd. v. Nuclear Marshmallows,WIPO Case No. D2000-0003. Furthermore, the Panel finds that 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.
The Panel turns to use of the disputed domain name and notes that it does not resolve to an active website and there is no evidence to suggest that the disputed domain name has been used or that there is any intention to make use of the disputed domain name for any purpose or legitimate activity consistent with good faith use. Previous UDRP panels have found that passive holding of a domain name is in violation of the Policy and may constitute bad faith, as found in several UDRP decisions, Banco Bilbao Vizcaya Argentaria, S.A. v. Victor Edet Okon, WIPO Case No. D2004-0245, Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003, DCI S.A. v. Link Commercial Corporation, WIPO Case No. D2000-1232, CareerBuilder LLC, v. Finity Development Group,WIPO Case No. D2006-0615.
In his filings Mr. Kacti has not demonstrated any good faith use or intended use or any valid explanation for registration, to the contrary, by making a trademark application after the date the Complaint was filed he has attempted to mislead the Panel into believing he had good reason to register the disputed domain name. Furthermore, in consideration of the Complainant’s contentions, history and lack of denial on part Mr. Soylu, suggests that Mr. Soylu is the registrant of the disputed domain name rather than Mr. Kacti as claimed in both Mr. Kacti’s and later Mr. Soylu’s submissions. The Panel is of the opinion that Mr. Soylu’s filings and late filing by Mr. Kacti suggest an attempt to cause confusion, which again indicates bad faith.
It is evident that the registration details of the disputed domain name were changed soon after Mr. Soylu’s removal from the Complainant’s company, namely, within eight (8) days. Although Mr. Soylu made two filings during the proceedings he did not put forward any explanation or denial of the Complainant’s allegations and simply stated that he was not the registrant as per the WhoIs records. Mr. Soylu has not disputed the Complainant’s allegations that he registered the disputed domain name on the behalf of the Complainant while a partner in the Complainant Company. Again considering that Mr. Soylu possessed the passwords necessary to make such changes, the Panel finds that it is more likely than not such changes were made by Mr. Soylu and the fact that he changed the registration details to interfere with the Complainant's use of the disputed domain name which is an indication of bad faith. The Panel having researched and reviewed the history of use of the disputed domain name notes that prior to Mr. Soylu’s removal in the company the disputed domain name was used as an online shopping site for the Complainant’s company. In the absence of any compelling denial of the contentions put forward by the Complainant, in consideration of the historical use of the disputed domain name and the surrounding facts, the Panel is of the opinion that it is more than likely that Mr. Soylu is still the registered user and changed the registration details in a deliberate attempt to conceal his identity and avoid application of the Policy. Furthermore, as a previous partner in the Complainant’s company Mr. Soylu was aware that the disputed domain name was used by the Complainant in the past to market its goods online, the only likely explanation for the Panel is that the registration details were changed to prevent the Complainant from continuing to use the disputed domain name was to prevent the Complainant using the disputed domain name with the intention of causing damage to the Complainant and in an attempt to disrupt the Complainant's business which constitutes bad faith.
As in Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003 and Ladbroke Group Plc v. Sonnoma International LDC,WIPO Case No. D2002-0131 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. 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 name, be transferred to the Complainant.
Gökhan Gökçe
Sole Panelist
Dated: May 9, 2011
1 As such, the Panel is satisfied that Umo is an appropriate respondent in this matter.
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