The Complainant is AXA SA of Paris, France, represented by Selarl Candé - Blanchard - Ducamp, France.
The Respondent is Salih Kusucar of Istanbul, Turkey. 2. The Domain Names and Registrars
The disputed domain name is registered with Everyones Internet, Ltd. dba SoftLayer. The disputed domain name is registered with OnlineNic, Inc. d/b/a China-C (the "Registrars"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 31, 2014. On March 31, 2014, the Center transmitted by email to the Registrars a request for registrar verification in connection with the disputed domain names. On April 1 2014, the Registrars transmitted by email to the Center their verification responses confirming that the Respondent is listed as the registrant of both disputed domain names 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 April 4, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was May 24, 2014. In response to a request by the Complainant, the proceeding was suspended for the purposes of settlement negotiations. The proceeding was reinstituted on May 23, 2014, with a Response due date of May 28, 2014. The Respondent contacted the Center on May 17 and May 26, 2014, but did not submit any formal response. Accordingly, the Center notified the parties of the commencement of the Panel appointment process on May 30, 2014.
The Center appointed Kaya Köklü as the sole panelist in this matter on June 4, 2014. 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.
In accordance with the Rules, paragraph 11(a), and since the parties have not agreed otherwise, the Panel finds that the language of the administrative proceedings is the language of the Registration Agreement, i.e., English. 4. Factual Background
The Complainant is a renowned French company that is particularly specialized in property and casualty insurance as well as in life insurance and savings. The Complainant's group of companies is active globally with more than 200,000 employees serving nearly 100 million customers worldwide.
The Complainant is the owner of the trademark AXA, which is registered in a large number of jurisdictions, including in Turkey, where the Respondent is apparently located. The Complainant's first trademark registrations date back to the 1980s (by way of illustration: International Trademark No. 490 03 of December 5, 1984). Protection is claimed for a variety of products and services, inter alia, for insurance and finance services.
Furthermore, the Complainant holds and operates various domain names incorporating the AXA trademark, including and, in the Turkish language, .
The Respondent seems to be an individual from Istanbul, Turkey.
The disputed domain name was created on July 29, 2011.
The disputed domain name was created on February 24, 2011.
According to the provided documents by the Complainant, it is indicated that the disputed domain names were used to direct Internet users to a website in the Turkish language offering security devices like surveillance cameras for sale. At the time of the Decision, the disputed domain names were inactive. 5. Parties' Contentions A. Complainant
The Complainant requests the transfer of the disputed domain names.
The Complainant is of the opinion that the disputed domain names are confusingly similar to the Complainant's AXA trademark.
The Complainant argues that the only difference between the disputed domain names and the Complainant's trademark is that the disputed domain names additionally comprise generic Turkish terms like "güvenlik" and "yazilim". The Complainant is of the opinion that the addition of these generic terms does not negate the confusing similarity with its trademark.
Furthermore, the Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain names. In particular, the Complainant states that the Complainant has never granted a permission or license to the Respondent to use its AXA trademark. The Complainant further alleges that the Respondent has never used and does not intend to use the AXA trademark in connection with a bona fide offering of goods and services.
Finally, it is argued that the Respondent has registered and is using the disputed domain names in bad faith. The Complainant, in particular, believes that due to the notoriety of the AXA trademark, the Respondent was or should have been aware of the AXA trademark when it registered the disputed domain names. B. Respondent
The Respondent did not formally reply to the Complainant's contentions.
However, the Center received an email communication on May 17, 2014 from the Respondent in Turkish. In this email communication, the Respondent asked for someone with the ability to speak Turkish to contact him.
On May 26, 2014, the Center received a second email communication, in which the Respondent states that it does no longer use the disputed domain names and that they can be transferred to the Complainant.
No further communications have been filed by the Respondent. 6. Discussion and Findings
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 names are identical or confusingly similar to the trademarks in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain names; and
(iii) the disputed domain names have been registered and are being used in bad faith.
Paragraph 4(a) of the Policy states that the Complainant bears the burden of proving that all these requirements are fulfilled, even if the Respondent has not replied to the Complaint. Stanworth Development Limited v. E Net Marketing Ltd.,WIPO Case No. D2007-1228.
However, concerning the uncontested information provided by the Complainant, the Panel may, where relevant, accept the provided reasonable factual allegations in the Complaint as true. Belupo d.d. v. WACHEM d.o.o.,WIPO Case No. D2004-0110.
It is further noted that the Panel has taken note of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0") and, where appropriate, will decide consistent with the WIPO Overview 2.0. A. Identical or Confusingly Similar
The Panel finds that the disputed domain names are confusingly similar to the AXA trademark of the Complainant.
First, the Panel confirms that the Complainant has satisfied the threshold requirement of having trademark rights. As evidenced in the Complaint, the Complainant is the owner of a large number of word and figurative trademarks comprising the mark AXA in many jurisdictions worldwide, including in Turkey.
Although not identical, the disputed domain name fully incorporates the Complainant's AXA trademark.
The disputed domain names differ from the AXA trademark only by the addition of the generic Turkish terms "güvenlik" and "yazilim", which mean "security" and "software" in English. In the Panel's view, the addition of such generic terms does not negate the confusing similarity between the Complainant's trademark AXA and the disputed domain names. The Panel finds that these additional incorporations are purely descriptive and do not create a new distinctiveness separate from the Complainant's AXA trademark. On the contrary, at least in the case of , the full inclusion of the Complainant's trademark in combination with the Turkish word for "security" enhances the false impression that the disputed domain names are officially related to the Complainant. The Panel concludes that the disputed domain names are likely to confuse Internet users in their believing that the disputed domain names are affiliated or endorsed by the Complainant or that the use of the disputed domain names are at least authorized by the Complainant.
In view of the above, the Panel is satisfied that the Complainant has met the requirements under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
The Panel further finds that the Respondent has not demonstrated any rights or legitimate interests in the disputed domain names.
While the burden of proof remains with the Complainant, the Panel recognizes that this would often result in the impossible task of proving a negative, in particular as any evidence of the Respondent's rights or legitimate interests (or lack thereof) is primarily within the knowledge of the Respondent. Therefore, the Panel agrees with prior UDRP panels that the Complainant is required to make out a prima facie case before the burden of production shifts to the Respondent to show that it has rights or legitimate interests in the disputed domain names in order to meet the requirements of paragraph 4(a)(ii) of the Policy. Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455.
The Panel finds that the Complainant has satisfied this requirement, while the Respondent has failed to file any evidence or convincing argument to demonstrate a right or legitimate interest in the disputed domain names according to the Policy, paragraph 4(a)(ii) and 4(c).
With its Complaint, the Complainant has provided uncontested prima facie evidence that the Respondent has no rights or legitimate interests to use the Complainant's AXA trademark in the disputed domain names.
In the absence of a formal Response by the Respondent, there is no indication in the current record that the Respondent is commonly known by the disputed domain names. Furthermore, the Respondent has failed to demonstrate any of the other nonexclusive circumstances evidencing rights or legitimate interests under the Policy, paragraph 4(c) or any other evidence of a right or legitimate interest in the disputed domain names. In particular, the Respondent has failed to show that the disputed domain names have been or are intended to be used in connection with a bona fide offering of goods or services. Even its email communications of May 2014 do not indicate any such right or legitimate interest.
In fact, bearing in mind that the trademark AXA is a term without a particular meaning, either in the English, French or Turkish languages, and due to its worldwide notoriety the Panel finds it hard to conceive of any use of this trademark in combination with the descriptive terms "güvenlik" and "yazilim" by the Respondent, which would qualify as a legitimate use.
Consequently, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
The Panel is further convinced that the Respondent has registered and is using the disputed domain names in bad faith.
The Panel is of the opinion that the Respondent intentionally attempted to create a likelihood of confusion among customers with the Complainant's AXA trademark, apparently for commercial gain or some other illegitimate benefit.
First, the Panel believes that the Respondent must have been well-aware of the Complainant's trademark when it registered the disputed domain names in February and July 2011. At the date of registration of the disputed domain names, the Complainant's AXA trademark was already well-known worldwide, including in Turkey, for many decades.
Second, the Respondent preferred not to formally respond to the Complainant's contentions, although being informed of the pending administrative proceedings by email and courier in Turkish and English.
The fact that the disputed domain names are currently inactive does not change the Panel's findings in this respect.
All in all, the Panel concludes that the disputed domain names were registered and are being used in bad faith and that the Complainant consequently has satisfied the third element of the Policy, namely, 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 names and be transferred to the Complainant.
Kaya Köklü
Sole Panelist
Date: June 16, 2014
Full & Egal Universal Law Academy