The Complainant is LINAK A/S of Nordborg, Denmark, represented by Søren Skovgaard Pedersen, Denmark.
The Respondent is Musa Yoldas (MEPA) of Istanbul, 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 August 25, 2014. On August 25, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 26, 2014, 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. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on August 29, 2014.
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 paragraphs 2(a) and 4(a) of the Rules, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 8, 2014. In accordance with paragraph 5(a) of the Rules, the due date for Response was September 28, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 29, 2014.
The Center appointed Brigitte Joppich as the sole panelist in this matter on October 2, 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 paragraph 7 of the Rules. 4. Factual Background
The Complainant was founded in 1980 with the purpose of developing, producing and selling actuators and actuator systems for various purposes and is today one of the world’s world market leaders for actuators with subsidiary companies in 27 countries and 10 distributors all over the world.
The Complainant is owner of numerous trademark registrations for LINAK, inter alia Danish trademark registration no. VR 1981 00090 for LINAK, registered on January 9, 1981; and International trademark registration no. 814311 for LINAK, registered on June 19, 2002, which covers Turkey (hereinafter referred to as the “LINAK Marks”). The Complainant also owns more than 100 domain name registrations for “linak”, inter alia, .
The disputed domain name was registered on August 22, 2014 and is not used in connection with an active website. 5. Parties’ Contentions A. Complainant
The Complainant contends that each of the three elements specified in paragraph 4(a) of the Policy is given in the present case.
(1) The disputed domain name is confusingly similar to the well-known LINAK Marks as it incorporates such marks.
(2) The Respondent has no rights or legitimate interests in respect of the disputed domain name, as no authorization was granted to the Respondent to use LINAK as a domain name or part of a domain name, and as the registration of the disputed domain name was made in bad faith especially considering that the Complainant registered and has used several other domain names containing the LINAK Marks.
(3) The disputed domain name was registered and is being used in bad faith, as the registration occurred without the Complainant’s consent, as the disputed domain name contains the LINAK Marks as well as “lineeraktuator”, which is Turkish for “linear actuator” and the Complainant’s main trade, as it is obvious that the Respondent had knowledge of the Complainant and its business, and as the Respondent is a Turkish sales company, selling linear actuators for one of the Complainant’s main competitors, namely “Timotion” in Taiwan. The Complainant further argues that the blank page available at the disputed domain name could suggest that the Complainant’s company had closed, thus damaging the Complainant’s image as well as diluting the LINAK Marks. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Under paragraph 4(a) of the Policy, the Complainant must prove that each of the following three elements is present:
(i) the disputed domain name is identical or confusingly similar to a trademark or 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
The disputed domain name fully incorporates the Complainant’s highly distinctive LINAK Marks. The additional word “lineeraktuator” in the disputed domain name is merely generic and describes the Complainant’s main trade. It is well established that a domain name that wholly incorporates a trademark may be confusingly similar to such trademark for purposes of the Policy despite the addition of common or generic words (see Verizon Trademark Services LLC v. Tunde Opaleye / MakarioWorks,WIPO Case No. D2014-0262 with further references). Furthermore, it is also well established that the specific generic Top-Level domain (gTLD) is generally not an element of distinctiveness that can be taken into consideration when evaluating the identity or confusing similarity between the complainant’s trademark and the disputed domain name (see Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr.,WIPO Case No. D2000-1525; Rollerblade, Inc. v. Chris McCrady,WIPO Case No. D2000-0429; and Phenomedia AG v. Meta Verzeichnis Com,WIPO Case No. D2001-0374).
Therefore, the Panel finds that the disputed domain name is confusingly similar to the LINAK Marks and that the Complainant satisfied the requirements of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy sets out three illustrative circumstances as examples which, if established by a respondent, shall demonstrate its rights or legitimate interests in the domain name for purposes of paragraph 4(a)(ii) of the Policy, i.e.:
(i) before any notice to the respondent of the dispute, the use by the respondent 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) the respondent (as an individual, business or other organization) has been commonly known by the domain name, even if the respondent has acquired no trademark or service mark rights; or
(iii) the respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
Even though the Policy requires the complainant to prove that the respondent has no rights or legitimate interests in the domain name, it is the consensus view among UDRP panelists that a complainant has to make only a prima facie case to fulfill the requirements of paragraph 4(a)(ii) of the Policy. As a result, the burden of coming forward with evidence of the respondent’s rights or legitimate interests in the domain name will then shift to the respondent.
The Complainant has substantiated that the Respondent has no rights or legitimate interests in the disputed domain name. The Panel finds that the Complainant has fulfilled its obligations under paragraph 4(a)(ii) of the Policy.
The Respondent did not deny these assertions in any way and therefore failed to prove any rights or legitimate interests in the disputed domain name. Based on the evidence before the Panel, the Panel cannot find any rights or legitimate interests of the Respondent either as the disputed domain name is not used in connection with an active website.
Accordingly, the Panel finds that the Complainant has proven that the Respondent has no rights or legitimate interests in respect of the disputed domain name under paragraphs 4(a)(ii) and 4(c) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which can be evidence of the registration and use of the disputed domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy, i.e.:
(i) circumstances indicating that the respondent has registered or acquired the disputed domain name primarily for the purpose of selling, renting or otherwise transferring the disputed domain name registration to the complainant who is the owner of the trade mark or service mark or to a competitor of that 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 trade mark 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 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 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 its website or location.
The Panel is satisfied that the Respondent registered the disputed domain name with full knowledge of the Complainant’s LINAK Marks, as the disputed domain name is built of the Complainant’s LINAK Marks and the Complainant’s main trade, and as the Respondent is a Turkish sales company, which sells linear actuators for one of the Complainant’s main competitors.
As the disputed domain name is not actively used by the Respondent, the Panel has to decide whether or not the Respondent’s (non-)use of the disputed domain name is to be considered as bad faith use under the Policy.
It is consensus view that the lack of an active use of a domain name does not as such prevent a finding of bad faith under the Policy. In such cases the panel must examine all the circumstances of the case to determine whether a respondent is acting in bad faith. Examples of circumstances that can indicate bad faith include a complainant having a well-known trademark, no response to the complaint, concealment of identity and the impossibility of conceiving a good faith use of the domain name (see Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003; Jupiters Limited v. Aaron Hall,WIPO Case No. D2000-0574; and Ladbroke Group Plc v. Sonoma International LDC,WIPO Case No. D2002-0131).
The Panel is confident that the Complainant’s LINAK Marks are highly distinctive and well-established. Furthermore, the Respondent, who sells the Complainant’s competitor’s products, failed to file a response and therefore did not provide evidence of any actual or contemplated good faith use with regard to the disputed domain name. In the view of the Panel, the facts of this case do not allow for any plausible actual or contemplated active use of the disputed domain name by the Respondent in good faith. The Panel is therefore convinced that, even though the disputed domain name has not yet been actively used, the Respondent’s non-use of the domain name equals use in bad faith.
Consequently, the Panel finds that the Respondent registered and used the disputed domain name in bad faith and that the Complainant satisfied the requirements 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.
Brigitte Joppich
Sole Panelist
Date: October 14, 2014
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