The Complainant is M. & B. Marchi e Brevetti Srl - Limited Liability Company of Fabriano, Italy, represented by Monica Stocco, Italy.
The Respondent is A Gurbulak As of Ankara, Turkey / Webbilisimhizmetleri of Ankara, Turkey / Domain Admin, Privacy Protection Service INC d/b/a PrivacyP of Queensland, Australia / Zafer Gurbulak of Ankara, Turkey. 2. The Domain Names and Registrars
The disputed domain names , , , , , , , , , , , , , , , , , , , , , , , , , , , >, , , , , , , , and are registered with Reg2C.com Inc. (the "First Registrar").
The disputed domain names , and are registered with FBS Inc. (the "Second Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on June 13, 2014. On June 13, 2014, the Center transmitted by email to the Registrars a request for registrar verification in connection with the disputed domain names.
On June 16, 2014, the Second Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names , and which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on August 7, 2014, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on August 8, 2014.
On June 19, 2014, the First Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the remaining disputed domain names.
On August 7, 2014, the Center transmitted the language of the proceedings document to the parties in both English and Turkish. On August 8, 2014, the Complainant requested English to be the language of the proceedings. The Respondent did not submit its comments.
The Center verified that the Complaint together with the amendment to 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 13, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was September 2, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on September 3, 2014.
The Center appointed Gökhan Gökçe as the sole panelist in this matter on September 10, 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. 4. Factual Background
The Complainant is an Italian company controlled by Ariston Thermo SpA and it is responsible for the management of all ARISTON trademarks and domain names which are exploited by Ariston Thermo SpA and its subsidiaries. Ariston Thermo SpA and its subsidiaries offer heating and water heating solutions.
The Complainant has registered several trademarks in Turkey, all including the wording "Ariston"; including ARISTON & Design with registration no. 161057 and application date December 30, 1994. In addition, the Complainant has registered several domain names, including , , and .
The disputed domain names were registered on the dates shown below. The disputed domain names , , , , ,, , , , , and are inactive, whereas the remaining disputed domain names resolve to websites in Turkish that appear to offer repair services for Ariston branded products. The Complainant's trademark ARISTON is used multiple times in bold letters and it is stated that the Respondent provides original spare parts with "ARISTON Service Assurance".
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23-Jul-2012 5. Parties' Contentions A. Complainant
In accordance with paragraph 4(b)(i) of the Policy, the Complainant requests that the disputed domain names be transferred to the Complainant. The Complainant submits the grounds for these proceedings listed in paragraph 4(a) of the Policy. Identical or Confusingly Similar
The Complainant asserts that the disputed domain names comprise the term "ariston" which is identical to its registered trademark ARISTON & Design. The Complainant states that the term "ariston" in all the disputed domain names makes the domain names very similar to the Complainant's registered trademark ARISTON, considering that, on the one hand, the term "ariston" has no meaning with regard to the products to which it refers; on the other hand, the suffixes "servis", "servisi", "servisleri", "serisi" are generic descriptive terms in Turkish indicating exactly the repair service offered to the consumer, while the suffixes "Ankara", "Cankaya", "Etimesgut", "Golbasi", "Kecioren", "Mamak" and "Sincan" are simple geographical terms. Rights or Legitimate Interests
The Complainant asserts that the Respondent has no rights or legitimate interests with regard to the disputed domain names considering:
a) there is no evidence of the Respondent's use of the disputed domain names in connection with a bona fide offering of goods or services - as a matter of fact the disputed domain names mainly resolve to websites in which the Complainant's registered trademark is massively used in order to induce Internet consumers to mistakenly believe that the websites at issue hold an association with the Complainant;
b) the Complainant is known in Turkey and worldwide by its trademark ARISTON, as well as by the domain names which link to the Complainant's official websites; consequently it is not reasonable to think that the Respondent has been commonly known by the same name/domain names. The Complainant further asserts that the Respondent has no rights or legitimate interests in the name "ariston";
c) the Respondent is not making a legitimate use of the disputed domain names given that the Respondent has no connection or affiliation with the Complainant and has not received any license or consent, express or implied, to use the ARISTON mark in the disputed domain names. Registered and Used in Bad Faith
The Complainant contends that the fact that the main part of the disputed domain names resolve to websites which massively use the Complainant's registered trademark ARISTON demonstrates that the disputed domain names were registered and are being used in bad faith.
In addition, the Complainant asserts that statements as "ARISTON Servisi Ankara" and "ARİSTON ÖZEL ÇAĞRI MERKEZİ" which can be translated into "ARISTON Service Ankara" and "ARISTON SPECIAL CALL CENTER", used in the websites to which the disputed domain names resolve, are ambiguous, given that it is suggested that the website's operators are licensed service centers for ARISTON products.
The Complainant asserts that by registering, using and trading the disputed domain names the Respondent has intentionally attempted to attract Internet users to its websites for commercial gain both by creating a likelihood of confusion with the Complainant's mark as to the relationship of its websites and the offered services. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings 6.1 Consolidation
The Complainant lists a total of 40 disputed domain names and 3 registrants. The Complainant has requested that the Respondents be consolidated and the matter be decided as a single Complaint. It is the Complainant's contention that the disputed domain names and the websites to which they resolve are subject to common control and the claims against the disputed domain names involve common questions of law and fact.
As stated in WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0"), paragraph 4.16, a complaint brought against more than one respondent may be accepted where (i) the domain names or the websites to which they resolve are subject to common control, and (ii) the consolidation would be fair and equitable to all parties.
The Panel has come to the conclusion that the disputed domain names and the websites to which they resolve are subject to common control and the consolidation would be fair and equitable to all parties, as (i) all of the active disputed domains resolve to the same or very similar website with the same layout and contact information, (ii) all of the inactive disputed domain name (i.e. without any website) are registered under the name of Zafer Gurbulak who is also the registrant of some of the disputed domain names with website, and (iii) the disputed domain names are of very similar language construction.
Accordingly, the Panel has decided to consolidate the Complaint against the Respondents and the dispute be decided in a single administrative proceeding. The Panel will refer to all the listed Respondents collectively as the Respondent. 6.2. Language of the Proceedings
Under paragraph 11(a) of the Rules, unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceedings shall be the language of the Registration Agreement. In the present case, the language of the Registration Agreement is Turkish.
The Complainant submitted its Complaint in English and requested the language of the proceedings to be English. The Respondent has not submitted any comments in this regard despite having been given the opportunity to. The Center notified the commencement of the administrative proceeding in both English and Turkish. In the circumstances, and taking into account the Respondent's default, the Panel concludes that, in accordance with paragraph 11(a) of the Rules, it is appropriate in this case to determine that the language of the proceedings be English, Inter-IKEA Systems B.V. v. SC Agis International Sport S.R.L,WIPO Case No. DRO2006-0001.
Therefore, the Panel has decided to accept the Complainant's filings in English and issue a decision in English. 6.3. Substantive Elements of the Policy
As the Respondent has not filed a Response, the Panel may decide the dispute based on the Complaint and may accept all factual allegations as true. The Panel may also draw appropriate inferences from the Respondent's default. Talk City, Inc. v. Michael Robertson, WIPO Case No. D2000-0009. A. Identical or Confusingly Similar
The Policy simply 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 Panel is satisfied that the Complainant is the owner of the trademark ARISTON, as evidenced in the Annex 5 to the Complaint.
In relation to the disputed domain names, it is clear that the disputed domain names fully incorporate the Complainant's trademark and the only difference between the disputed domain names and the Complainant's trademark is the addition of the Turkish words "servis" or "servisler" (meaning "services" in English), geographical terms such as "ankara" or neighborhoods of the city of Ankara and generic Top-Level Domains ("gTLD") such as ".com", ".net" and ".org" .
The Panel is in the opinion that the addition of the Turkish words "servis" or "servisler" and geographical indicators such as "ankara", which is a city in Turkey, or its neighborhoods, does not negate the confusing similarity between the Complainant's trademark and the disputed domain names. "On the contrary, the nature of the generic terms used would tend to reinforce consumers' erroneous conclusion that the websites to which the disputed domain names resolve are somehow legitimately included in the supply and service system established by the Complainant", Aktiebolaget Electrolux v. Ibrahim Yurtcu, WIPO Case No. D2013-0796.
The Panel further finds that the addition of gTLDs such as ".com", ".org" or ".net" may be disregarded when determining whether the disputed domain names are confusingly similar to the Complainant's trademark, PRL USA Holdings, Inc. v. Spiral Matrix,WIPO Case No. D2010-1941. It has been stated in several decisions by other UDRP panels that the incorporation of a trademark in its entirety into a domain name may often be sufficient to establish that the domain name is identical or confusingly similar to a registered trademark, Bayerische Motoren Werke AG, Sauber Motorsport AG v. Petaluma Auto Works,WIPO Case No. D2005-0941. The Panel recognizes the Complainant's trademark rights and concludes that the disputed domain names are identical and confusingly similar with the Complainant's ARISTON 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), the Complainant must prove that the Respondent has no rights or legitimate interests in respect of the disputed domain names. It is established in numerous UDRP decisions that it is difficult for a complainant to prove a negative and for that reason a complainant is required to make out an initial prima facie case that the respondent lacks rights or legitimate interests in the disputed domain name, Belupo d.d. v. WACHEM d.o.o.,WIPO Case No. D2004-0110. Once the complainant makes a prima facie case, the burden of demonstrating rights or legitimate interests in the disputed domain names shifts to the respondent. The Policy at paragraph 4(c) provides various ways in which a respondent may demonstrate rights or legitimate interests in the domain name. If the respondents fail to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy.
The Complainant contends that the Respondent does not have any rights or legitimate interests in the disputed domain names; there is no evidence of the Respondent's use of the disputed domain names in connection with a bona fide offering of goods or services; it is not reasonable to think that the Respondent has been commonly known by the disputed domain names as the Complainant is known in Turkey and worldwide by its trademark ARISTON as well as by the domain names which link to the Complainant's official websites.
The Complainant further asserts that, the Respondent has no rights or legitimate interests in the name "ariston"; the Respondent is not making a legitimate use of the disputed domain names given that the Respondent has no connection or affiliation with the Complainant and has not received any license or consent, express or implied, to use the ARISTON mark in the disputed domain names.
The Panel finds that there is no evidence to suggest that the Respondent has any rights in any trademarks or service marks which are identical, similar or related to the disputed domain names. The Panel accepts that the Respondent is not commonly known by the disputed domain names, even if the Respondent has acquired no trademark or service mark rights. The active websites associated with the disputed domain names are commercial websites, therefore the Panel infers that there is no intention of legitimate noncommercial or fair use of the disputed domain names, without intent for commercial gain or to misleadingly divert consumers. The Panel is of the opinion that the use made of the active websites associated with the disputed domain names, as further explained below, does not qualify as a bona fide offering of goods or services under the Policy.
Paragraph 4(a)(ii) requires the Complainant to prove that the Respondent has no rights or legitimate interests in the disputed domain names. The Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain names. The Respondent did not submit any response and therefore the Panel concludes that the Respondent has no rights or legitimate interests in the disputed domain names.
The requirements of the Policy, paragraph 4(a)(ii), are fulfilled and consequently the Panel finds in favor of the Complainant on the second element of the Policy. C. Registered and Used in Bad Faith
Finally, the Complainant must show that the disputed domain names have been registered and are being used in bad faith under paragraph 4(a)(iii) of the Policy.
Paragraph 4(b) of the Policy provides a non-exhaustive list of circumstances that, if found by a panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that the respondent has registered or acquired the 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 that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent has registered the 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
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent's website or other on-line 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 the respondent's website or location.
The Complainant's trademark ARISTON was registered and was being used before the Respondent's registration of the disputed domain names. The Respondent's active websites associated with the disputed domain names appear to offer repair services for Ariston branded products. Therefore, the Respondent was aware of the Complainant's trademark ARISTON at the time the disputed domain names were registered.
The fact that the Respondent's active websites uses the Complainant's trademark ARISTON multiple times in bold letters and states that the Respondent provides original spare parts with "ARISTON Service Assurance" suggests that the Respondent is affiliated with the Complainant when it is actually not the case. The Panel has noted the presence of a small disclaimer on the active websites but finds it insufficient in the circumstances, especially given that it is very general and does not make specific reference to the Complainant. In the circumstances, and as indicated before, the Panel considers that the use made of the active websites associated with the disputed domain names does not qualify as a bona fide offering of goods or services under the Policy.
On the contrary, the Panel is of the opinion that by using the disputed domain names, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its websites and 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 websites.
Finally, and as noted before, some of the disputed domain names do not resolve to any content. After examining all the circumstances of the present case, the Panel concludes that such use of the disputed domain names does not prevent a finding of bad faith against the Respondent. See WIPO Overview 2.0, paragraph 3.2.
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 favor of the Complainant on the third element 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.
Gökhan Gökçe
Sole Panelist
Date: October 8, 2014
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