The Complainant is Çiçeksepeti Internet Hizmetleri Anonim Şirketi of İstanbul, Turkey, represented by Gür Law & IP Firm, Turkey.
The Respondent is Haydar Arat of İzmir, 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 was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 16, 2013. On July 17, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 18, 2013, the Registrar 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 August 1, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was August 21, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 22, 2013.
The Center appointed Selma Ünlü as the sole panelist in this matter on August 27, 2013. 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 facts stated in the Complaint are as follows:
(1) “Çiçeksepei” (which means “flower basket” in Turkish) is a well-known Turkish e-commerce platform for sale of flowers throughout Turkey owned by the Complainant.
(2) The Complaint owns Turkish trademark ÇİÇEKSEPETİ (no. 2008 11725, dated March 3, 2008) and logo trademark CICEKSEPETI.COM (no. 2009 27060, dated June 5, 2009).
(3) The domain name was registered by the Complainant on November 4, 2002.
(4) The disputed domain name was registered on May 7, 2010.
(5) There has been no contractual bond between the parties and there has been no permission or license given to the Respondent regarding the use of “ciceksepeti” phrase.
Panel’s observation of the case file reveals the following:
(1) The disputed domain name is inactive and there was no content provided, when the Panel visited the Respondent’s website on September 7, 2013. However, from the annexes provided by the Complaint, the Panel notes that the Respondent used to sell flowers under website to which resolved the disputed domain name and used a website layout similar to the one of the Complainant’s official website at “www.” (Annex 5 and 8 to the Complaint).
(2) The Complainant’s website at “www.” is well-recognized and is commonly used to order flowers, fruit baskets and similar kind of gifts online in Turkey. 5. Parties’ Contentions A. Complainant
The Complainant requests the Panel to issue a decision transferring the disputed domain name to the Complainant on the following grounds:
(i) The disputed domain name is identical or confusingly similar to the trademarks and service marks in which the Complainant has rights;
(ii) The Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) The disputed domain name was registered and is being used in bad faith. (i) Identical or Confusingly Similar
The Complainant states that the above-cited trademarks containing “ciceksepeti” phrase has been registered in the name of the Complainant before the Turkish Patent Institute since 2008 and that same phrase has also been used as the main part of trade name of the Complainant for many years.
The Complainant states that the trademarks and domain names containing “ciceksepeti” phrase have been used by the Complainant for years. Also, the Complainant states that disputed domain name is identical with the Complainant’s trademarks. (ii) Rights or Legitimate Interests
The Complainant argues that the Respondent does not use the disputed domain name in connection with a bona fide offering of goods or services, does not make a legitimate noncommercial or fair use of it and the Respondent has not been commonly known by the disputed domain name.
Moreover, the Complainant indicates that the Respondent does not have any rights or legitimate interests in the disputed domain name since the Respondent is not commonly known by the disputed domain name and has not acquired any trademark rights or personal rights in the phrase “ciceksepeti”. (iii) Registered and Used in Bad Faith
The Complainant argues that the Respondent aims to gain unfair benefit from the Complainant’s reputation. Also, the Complainant alleges that the Respondent did not only register the disputed domain name but also copied the layout of the Complainant’s website. Therefore, the content of the Respondent’s website causes confusion in the minds of consumers and by such confusion the Respondent gains advantage from the reputation of the Complainant and its trademarks.
Also, the Complainant submits evidence showing that it sent a cease and desist letter via the Public Notary to the Respondent; however, the Respondent failed to respond to the letter. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
According to paragraph 15(a) of the Rules, the Panel shall decide the Complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
In accordance with paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements is satisfied:
(i) The disputed domain name is identical or confusingly similar to the trademark in which the Complainant has rights; and
(ii) The 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.
Paragraph 4(a) of the Policy states that the Complainant has the burden of proving that all these requirements are fulfilled. A. Identical or Confusingly Similar
Based on the evidence submitted by the Complainant concerning the trademark registrations containing “ciceksepeti” phrase, the Panel finds that the Complainant has successfully proved its right in the trademark. Also, the Complainant has CICEKSEPETI trademark registrations since 2008 and uses the subject phrase as the main element of its trade name since 2000.
The Panel is of the opinion that disputed domain name contains “ciceksepeti” as the core element and the word “Izmir” (which is the third biggest city of Turkey) has been used as a subsidiary element of the disputed domain name.
The test for identical or confusing similarity under paragraph 4(a)(i) of the Policy is limited to a direct comparison between the Complainant’s trademark and the textual string which comprises the disputed domain name. In this case, the Complainant has demonstrated registered rights in the ÇİÇEKSEPETİ and CICEKSEPETI.COM (logo) trademarks. Moreover, the disputed domain name contains the term “CICEKSEPETI” wholly. The Panel evaluates this matter by examining the similarity between the Complainant’s CICEKSEPET trademarks and the disputed domain name. Therefore, the Panel is of the opinion that the use of the “ciceksepeti” phrase with the geographical term “Izmir” may give rise to confusion in the minds of consumers thinking that the disputed domain name belongs to the subsidiary of the Complainant which is active in Izmir.
In similar cases, e.g. Sanofi-Aventis v. Gideon Kimbrell,WIPO Case No. D2010-1559, Turkcell Iletisim Hizmetleri A.S. v. Vural Kavak,WIPO Case No. D2010-0010, Greenbrier IA, Inc. v. Moniker Privacy Services/Jim Lyons,WIPO Case No. D2010-0017 and Zodiac Marine & Pool, Avon Inflatables Ltd and Zodiac of North America Inc. v. Mr. Tim Green,WIPO Case No. D2010-0024, UDRP panels have found that adding descriptive words does not avoid the likelihood of confusion between a trademark and a domain name incorporating said trademark.
Accordingly, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s ÇİÇEKSEPETİ trademark and thus, the first requirement under paragraph 4(a) of the Policy is satisfied. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy states that, a respondent may establish its rights or legitimate interests in the domain name, among other circumstances, by showing any of the following elements:
“(i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) You [Respondent] are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.”
The burden of proof lays on the Complainant who must demonstrate a prima facie case that the Respondent does not have rights or legitimate interests in the disputed domain name. Once the Complainant has made out a prima facie case, then the Respondent may, by, inter alia, showing one of the above elements, prove rights or legitimate interests in the disputed domain name.
In light of the evidence submitted in the case file, it is clear that the Complainant has not granted the Respondent any right or license to use its trademark. Therefore, the Panel finds on the current record that the Complainant has established a prima facie case that the Respondent does not have rights or legitimate interests in the disputed domain name for the purposes of the Policy.
Also the well-known reputation of the Complainant’s trademark has been proven through the evidence submitted by the Complainant.
Consequently, in the absence of any response, the Panel accepts the Complainant’s allegations as true that the Respondent has no authorization to use its ÇİÇEKSEPETİ trademark in the disputed domain name.
Hence, as the Complainant has made out its prima facie case, and as the Respondent has not demonstrated any rights or legitimate interests as illustrated under paragraph 4(c) of the Policy, nor has the Panel found any other basis for finding any rights or legitimate interests of the Respondent in the disputed domain name, in light of the use of the disputed domain name as described below the Panel concludes that the Complainant has satisfied the requirement of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out four, non-inclusive, circumstances that, if found by the Panel to be present, shall be evidence of the registration and use of the disputed domain name in bad faith:
(i) circumstances indicating that the Respondent has registered or has acquired the disputed 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 the Complainant, for valuable consideration in excess of the Respondent’s documented out-of-pocket costs directly related to the disputed domain name; or
(ii) the Respondent has registered the disputed 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; or
(ii) the Respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website 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 website or location or of a product or service on Respondent’s website or location.
By consideration of the foregoing, and in view of the content of the case file the Panel is of the opinion that due to the extensive and intensive use of the ÇİÇEKSEPETİ trademark by the Complainant, the Respondent who is domiciled in Turkey, could not have been unaware of the Complainant’s existence. See, e.g., Ebay Inc. v. Wangming,WIPO Case No. D2006-1107; General Electric Company v. CPIC NET and Hussain Syed,WIPO Case No. D2001-0087.
Moreover, the Complainant’s ÇİÇEKSEPETİ trademark has been used over a decade and has been used before the registration of the disputed domain name. Therefore, the Panel refers to the Kahn Lucas Lancaster, Inc. v. Marketing Total S.A.,WIPO Case No. D2007-1236 where the panel stated that “Respondent most likely was aware of Complainant's trademark when it registered the disputed domain name. It seems unlikely … that Respondent would have chosen this name randomly.” Thus, the Panel finds that the Respondent has registered the disputed domain name in bad faith.
Also, the Respondent’s previously described use of the disputed domain name for a website with a similar layout and concept as the Complainant’s could only increase the confusion in the minds of consumers who could have thought that the Respondent is an affiliate or subsidiary of the Complainant active in Izmir, consistent with a finding under paragraph 4(b)(iv) of the Policy.
Accordingly, the Panel is of the opinion that the Complainant has met the requirement of paragraph 4(a)(iii) of the Policy. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to the Complainant.
Selma Ünlü
Sole Panelist
Date: September 10, 2013
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