The Complainant is Orco Property sp. z o.o., of Warsaw, Poland, internally represented.
The Respondent is Mehmet Kadioglu of Northhampton, the United Kingdom of Great Britain and Northern Ireland (“UK”). 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, LLC. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 21, 2013. On October 22, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 22, 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 November 1, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was November 21, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 25, 2013.
The Center appointed Philippe Gilliéron as the sole panelist in this matter on December 4, 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.
On December 13, 2013, the Center issued an Administrative Panel Procedural Order inviting the Complainant to provide by December 18, 2013 the Panel with additional evidence to support its allegations regarding both the absence of rights or legitimate interests of the Respondent and the bad faith registration and use of the disputed domain name.
On December 17, 2013, the Complainant sent to the Panel additional allegations in response to the Administrative Panel Procedural Order. Having been granted a deadline by December 20, 2013 to respond to these new allegations, the Respondent did not respond. 4. Factual Background
The Complainant is a limited liability company incorporated under the laws of Poland, more particularly carrying out its activities in the real estate industry.
The Complainant holds several verbal Polish trademarks consisting in whole or in part of the word “zlota44”, notably:
- Zlota44 (Registration No. 203221), registered under classes 35, 36, 37, 42 and 43 of the Nice Classification, on February 1, 2008, with a priority date as of October 18, 2006;
- Zlota 44tower (Registration No. 203222), registered under classes 35, 36, 37, 42 and 43 of the Nice Classification, on February 1 2008, with a priority date as of October 18, 2006;
- ZLOTA 44 ORCO PROPERTY GROUP (Registration No. 206043), registered under classes 35, 36, 37, 42 and 43 of the Nice Classification, on May 13, 2008, with a priority date as of October 18, 2006.
On May 23, 2013, the Respondent registered the domain name . 5. Parties’ Contentions A. Complainant
The Complainant first contends that the disputed domain name is similar to its trademark, in the sense that it entirely contains its ZLOTA44 trademark.
The Complainant then asserts that the Respondent does not have any rights or legitimate interests in the disputed domain name. The Respondent does not run business operations under that name, does not own any trademarks consisting of these terms and is not known under that name either.
The Complainant finally affirms that the disputed domain name has been registered and is being used in bad faith. The Respondent would have registered the disputed domain name after he had reserved residential apartments at the Zlota44 investment, for the purpose of offering residential apartments at the Zlota44 investment for sale through its website. Such a usage would likely confuse Internet users and make them believe that the website attached to the disputed domain name would be affiliated to the Complainant. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Paragraph 15(a) of the Rules instructs this Panel to “[…] decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”.
Pursuant to paragraph 4(a) of the Policy, the Complainant must prove each of the following three elements to obtain an order that the disputed domain name should be cancelled or transferred:
(i) The disputed domain name registered by the Respondent is identical or confusingly similar to a trademark or a service mark 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. A. Identical or Confusingly Similar
According to the Policy, paragraph 4(a)(i), the Complainant has to prove that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
The Complainant proves to be the holder of several verbal trademarks consisting of the term “zlota44”.
UDRP panels widely agree that incorporating a trademark into a domain name can be sufficient to establish that the domain name is identical or confusingly similar to a registered trademark for the purpose of the Policy (see, e.g., Uniroyal Engineered Products, Inc. v. Nauga Network Services,WIPO Case No. D2000-0503; Thaigem Global Marketing Limited v. Sanchai Aree,WIPO Case No. D2002-0358; and F. Hoffmann-La Roche AG v. Relish Entreprises, WIPO Case No. D2007-1629).
Such happens to be the case here. The addition of a descriptive term such as “sales” does not exclude the likelihood of confusion.
As a result, the Panel considers paragraph 4(a)(i) of the Policy to be satisfied. B. Rights or Legitimate Interests
According to the Policy, paragraph 4(a)(ii), the Complainant has to demonstrate that the Respondent has no rights or legitimate interests in the disputed domain name.
As the panel stated in Do The Hustle, LLC v. Tropic Web,WIPO Case No. D2000-0624, demonstrating that the respondent has no rights or legitimate interests in the domain name “would require complainant to prove a negative, a difficult, if not impossible, task”. Thus, in that decision, the panel opined that “[w]here a complainant has asserted that the respondent has no rights or legitimate interests in respect of the domain name, it is incumbent upon the respondent to come forward with concrete evidence rebutting this assertion”. Following that decision, subsequent panels developed a consensual view that it is deemed sufficient for a complainant to make a prima facie case that the respondent lacks rights or legitimate interests in a domain name. Once a prima facie case has been made, it is the respondent’s burden to demonstrate its rights or legitimate interests. If it fails to do so, the complainant is deemed to have satisfied to paragraph 4(a)(ii) of the Policy (see, e.g., paragraph 2.1 of WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”)).
In the present case the Complainant is the owner of several trademarks consisting in whole or in part of the terms “zlota44”. The Complainant has no business or other relationships with the Respondent, which would permit the Respondent to use the Complainant’s marks.
The Complainant thus has made a prima facie case showing that the Respondent has no rights or legitimate interests in the disputed domain name.
On its side, the Respondent has not answered to the Complaint.
Considering the absence of a Response and the fact that the Respondent is neither commonly known by the disputed domain name, nor has made a legitimate noncommercial or fair use of the disputed domain name, the Panel finds that the Respondent has failed to demonstrate any rights or legitimate interests in the disputed domain name.
Consequently, in light of the above, the Panel considers paragraph 4(a)(ii) of the Policy to be fulfilled. C. Registered and Used in Bad Faith
For a complaint to succeed, a panel must be satisfied that a domain name has been registered and is being used in bad faith (Policy, paragraph 4(a)(iii)).
In its Complaint, the Complainant alleges that the Respondent would have been using the disputed domain name for the purposes of running commercial activities competitive to the ones of the Complainant in the form of offering residential apartments for sale in the Zlota 44 investment, after having itself reserved such apartments. As a result, the Respondent would have been clearly aware of the Complainant’s trademarks and would have registered and used the disputed domain name in bad faith so as to mislead potential consumers interested in said investment.
The Complainant however does not provide any evidence supporting its allegations. In spite of having been given by the Panel the opportunity through the granting of an administrative panel procedural to submit relevant evidence in that regard, the Complainant did not seize that opportunity to provide the Panel with any evidence.
In response to the Administrative Panel Procedural Order, the Complainant insists that the registration of the disputed domain is an obvious infringement of its trademark rights as the Complainant would be the only investor of the project authorized to sell apartments and that all photographs unduly displayed by the Respondent on the website would have been made on the Complainant’s commission. The Complainant repeats that the Respondent had a clear knowledge of the Complainant’s trademarks as he would have registered the disputed domain name after having reserved residential apartments at the Zlota44 investment. According to the Complainant, such display would in addition clearly amount to an unfair competition act and furthermore infringe upon its copyrights.
Unfortunately, these are once again merely assertions without any evidence to support them.
It is to be remembered that “a respondent's default does not automatically result in a decision in favor of the complainant. […], the complainant must establish each of the three elements required by paragraph 4(a) of the UDRP” (WIPO Overview 2.0, paragraph 4.6).
As a result, the Panel considers that it was up to the Complainant to provide the Panel with evidence supporting its assertions. In the present case, the website attached to the disputed domain name currently is under maintenance and does not enable the Panel to assess the veracity of the Complainant’s assertions.
The Complainant neglected to send capture screens displaying the website as it was prior to the sending of the Complaint, which would have enabled the Panel to assess the Respondent’s bad faith, and did not provide the Panel with any contract that would have demonstrated the Respondent’s purchase of an apartment in the Zlota44 investment. The fact that this registration may indeed infringe Complainant’s trademark rights and copyrights in a civil action is of no help under the UDRP, which is submitted subject to its own criteria.
Absent any evidence to appraise the allegations made by the Complainant, the Panel considers that he is not in a position to consider that the disputed domain name would have been registered and is being used in bad faith, and that the Complainant has to bear the consequences of its negligence.
As a consequence, the Panel considers that the Complainant has failed to prove that paragraph 4(a) (iii) of the Policy had been satisfied. 7. Decision
For the foregoing reasons, the Complaint is denied.
Philippe Gilliéron
Sole Panelist
Date: December 23, 2013
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