The Complainant is Elit Turizm Yatirim Anonim Şirketi of Istanbul, Turkey, represented by Onur Koç, Turkey.
The Respondent is Domain Admin of Nassau, the Bahamas. 2. The Domain Name and Registrar
The disputed domain name (the “Disputed Domain Name”) is registered with I Corp. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 10, 2015. On January 12, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On January 15, 2015, 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. On January 23, 2015, the Complainant submitted an amended Complaint.
The Center verified that the Complaint together with the amended 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 proceeding commenced on January 27, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was February 16, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 17, 2015.
The Center appointed John Swinson as the sole panelist in this matter on February 23, 2015. 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 Elit Turizm Yatirim Anonim Şirketi of Turkey. It is a hotel management and tourism company which began operating in 1976.
The Complainant holds a number of trade marks in Turkey for ELITE WORLD in respect of hotel management services, the earliest of which was registered on April 16, 2007 (registration number 2007/20289), along with a number of other registered trade marks incorporating the term “Elite World” in respect of its hotel brands.
For the purpose of this decision, these will be collectively referred to as the “Trade Mark”.
The Complainant also holds a number of domain name registrations which incorporate the Trade Mark, such as , , , and . These domain names are also registered trade marks held by the Complainant in the same class.
The Respondent is Domain Admin. The Respondent did not provide a formal response to the Complaint, so the Panel has little further information regarding the Respondent.
The Disputed Domain Name was created on February 17, 2010. The website at the Disputed Domain Name currently asks Internet users to complete a survey for a chance to win a shopping voucher. On previous occasions, the website at the Disputed Domain Name has displayed pay-per-click links relating to the hotel industry or a Registrar parking page with a link offering the Disputed Domain Name for sale. 5. Parties’ Contentions A. Complainant
Identical or Confusingly Similar
The Complainant submits that the Disputed Domain Name is identical or confusingly similar to the Trade Mark. The Complainant holds a number of trade marks registered with the Turkish Patent Institute. The Disputed Domain Name is the same as the Complainant’s Elite World brands, which have a wide reputation in the hotel management services sector.
The Complainant submits that the generic Top-LevelDdomain (gTLD) “.com” and the country code Top-Level Domain (ccTLD) “.tr” do not affect similarity or identicalness. It submits that the only difference between the domain name which hosts the Complainant’s official website () and the Disputed Domain Name is the inclusion of the ccTLD “.tr”, and therefore confusion is inevitable.
Rights or Legitimate Interests
The Complainant makes the following submissions:
- The Respondent has no registered or legal right to use the Disputed Domain Name. The Complainant has outlined the websites previously hosted at the Disputed Domain Name, for example, those displaying pay-per-click links relating to the hotel industry, and those offering the Disputed Domain Name for sale.
- As the Complainant’s brands are well-known, it is unlikely that the Disputed Domain Name was selected by accident, and instead was aimed at intentionally creating ambiguity with the Complainant’s trading name.
- The Respondent has used a privacy service to register the Disputed Domain Name, which can be a factor to indicate malicious intent.
Registered and Used in Bad Faith
The Complainant makes the following submissions:
- Given the Complainant’s reputation, the Respondent must have been aware of the Complainant and its brand. The Respondent has attempted to take the benefit of the Trade Mark and reputation of the Complainant and create confusion in the Turkish market.
- Creating a pay-per-click link website relating to the hotel services industry and then offering the Disputed Domain Name for sale indicates that the Respondent had the purpose trading off the Complainant’s reputation.
- The website currently hosted at the Disputed Domain Name asks users to complete a survey. However, when the instructions are followed, the website tried to download harmful content onto the user’s computer. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
To succeed, the Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied, namely:
(i) the Disputed Domain Name is identical or confusingly similar to a trade mark 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.
The onus of proving these elements is on the Complainant. A. Identical or Confusingly Similar
Paragraph 4(a)(i) of the Policy provides that the Complainant must establish that the Disputed Domain Name is identical or confusingly similar to the Trade Mark.
The Disputed Domain Name is confusingly similar to the Trade Mark. The Trade Mark has been wholly incorporated into the Disputed Domain Name and combined with the descriptive term “hotels”. Given the Complainant is a hotel management company, this descriptive term can be readily associated with the Complainant and its business.
It is more likely than not that a person would interpret this descriptive addition as subordinate to the Trade Mark, which is the dominant and distinctive part of the Disputed Domain Name (see, e.g., Statoil ASA v. N/A Alex,WIPO Case No. D2013-0713).
The Complainant succeeds on the first element of the Policy. B. Rights or Legitimate Interests
Paragraph 4(a)(ii) of the Policy provides that the Complainant must establish that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. The Complainant is required to make out a prima facie case showing that the Respondent lacks rights or legitimate interests.
The Panel finds that the Complainant has made out a prima facie case. This finding is based upon the following:
- The Respondent has not used, or made demonstrable preparations to use, the Disputed Domain Name in connection with a bona fide offering of goods or services. The website currently hosted at the Disputed Domain Name offers Internet users the chance to win a shopping voucher in return for completing an online survey. Prior content hosted at the Disputed Domain Name show (at different times) an offer to sell the Disputed Domain Name and pay-per-click websites featuring links to hotel services. In the circumstances, such use is not bona fide.
- The Respondent has not been commonly known by the Disputed Domain Name.
- The Respondent has not been making a legitimate noncommercial or fair use of the Disputed Domain Name without intent for commercial gain. The Panel accepts the Complainant’s submissions that the online survey which is currently hosted at the Disputed Domain Name is a means by which to place harmful code onto the user’s computer.
The Respondent had the opportunity to demonstrate its rights or legitimate interests, but did not do so. As such, the prima facie case established by the Complainant has not been rebutted and the Complainant succeeds on the second element of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy provides that the Complainant must establish that the Respondent registered and used the Disputed Domain Name in bad faith.
The Complainant has been operating since 1976. It has held registered trade marks for its hotel brands since 2007. It holds a number of domain names which incorporate the Trade Mark. The Complainant’s official website is hosted at a domain name which is, aside from the Complainant’s use of the ccTLD “.tr”, identical to the Disputed Domain Name. The Complainant has evidently spent a great deal of time and money on protecting its brand.
The Disputed Domain Name was registered on February 17, 2010. In light of the reputation of the Complainant in the hotel industry, it is likely that the Respondent had knowledge of both the Complainant and the Trade Mark at the time the Disputed Domain Name was registered. This conclusion is reinforced by use of the word “hotels” as part of the Disputed Domain Name. In some circumstances, where the reputation of a complainant in a given mark is significant and the mark has strong similarities to the disputed domain name, the likelihood of confusion is such that bad faith may be inferred (see, e.g., Verner Panton Design v. Fontana di Luce Corp,WIPO Case No. D2012-1909 and cases cited therein). Here, the Panel can reasonably infer that the Respondent sought to make use of the reputation of the Complainant and registered the Disputed Domain Name in bad faith.
The Panel concludes that the Respondent has used the Disputed Domain Name to intentionally attract, for commercial gain, Internet users to the Respondent’s website by creating a likelihood of confusion with the Trade Mark as to the source, sponsorship, affiliation or endorsement of the Respondent’s website (paragraph 4(b)(iv) of the Policy).
Additionally, the Panel finds that the Respondent’s bad faith is further evidenced by its previous use of the website at the Disputed Domain Name. The Panel has reviewed historical records submitted by the Complainant which show that the Disputed Doman Name has also previously hosted a pay-per-click link website of advertisements offering hotel services, which are similar to the services offered by the Complainant.
Given the Panel’s findings in relation to the use made of the Disputed Domain Name, the fact that the Respondent has registered the Disputed Domain Name through a privacy service further supports a finding of bad faith (see, e.g., The Uder Company Pty Ltd and Stay In Bed Milk & Bread Pty Ltd (trading as Aussie Farmers Direct) v. PrivacyP, Domain Admin, ID # 10760,WIPO Case No. D2012-0924 and cases cited therein).
The Panel finds that the Complainant has succeeded 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 Name, , be transferred to the Complainant.
John Swinson
Sole Panelist
Date: March 6, 2015
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