The Complainant is Franke Technology and Trademark Ltd of Hergiswil, Switzerland, represented by BrandIT GmbH, Switzerland.
The Respondent is NicProxy Customer, Whois Privacy Protection Service of Istanbul, Turkey. 2. The Domain Name and Registrar
The disputed domain name is registered with Nics Telekomünikasyon Ticaret Ltd. Şti. (the “Registrar”). 3. Procedural History
The Complaint in English was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 7, 2016. On April 7, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 8, 2016, 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, and stating that Turkish was the language of the Registration Agreement for the disputed domain name . The Center sent an email communication to the Parties on April 13, 2016, requesting the Complainant to provide satisfactory evidence of an agreement between the Complainant and the Respondent to the effect that the proceedings should be in English; or, submit the Complaint translated into Turkish; or, submit a request for English to be the language of the administrative proceeding. The Respondent was also invited to make submissions in this regard. On April 15, 2016, the Complainant made a request that English be the language of the administrative proceeding.
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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 21, 2016. In accordance with the Rules, paragraph 5, the due date for Response was May 11, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 12, 2016.
The Center appointed Kaya Köklü as the sole panelist in this matter on May 25, 2016. 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 belongs to the Franke Group, which has more than 70 subsidiaries with around 9,000 employees in 37 countries. Among various sectors, it is particularly known for its products in the kitchen appliance sector.
The Complainant has registered the word and figurative trademark FRANKE in several classes in many jurisdictions, including Turkey. The first trademark covering protection in Turkey was registered in 1992 and, hence, many years before the registration of the disputed domain name.
The Complainant has further registered and operates the trademark FRANKE as domain names under several generic Top-Level Domains (“gTLD”) and country-code Top-Level Domains (“ccTLD”) worldwide, e.g., and .
According to the current record, the disputed domain name was created on September 24, 2013.
The Respondent’s true identity is unknown as it was not disclosed by the involved privacy protection service.
At the time of the decision, the disputed domain name resolves to a website offering technical services for the Complainant’s household products. On the website linked to the disputed domain name, the Complainant’s word and figurative FRANKE trademark is prominently used in the heading.
As evidenced by the Complainant, the Respondent did not reply to an attempt of the Complainant to solve this dispute inter partes before initiating the present administrative proceedings. 5. Parties’ Contentions A. Complainant
The Complainant requests the transfer of the disputed domain name.
The Complainant is of the opinion that the disputed domain name is confusingly similar to the Complainant’s well-known FRANKE trademark.
The Complainant argues that the only difference between the disputed domain name and the Complainant’s trademark is that the disputed domain name additionally comprises the city name “Istanbul” as well as the Turkish term “servisi”. The Complainant is of the opinion that the addition of these generic terms does not negate the confusing similarity with its FRANKE trademark.
Furthermore, the Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name. In particular, the Complainant states that the Complainant has never granted a permission or license to the Respondent to use its FRANKE trademark. The Complainant further alleges that the Respondent has never used and does not intend to use its trademarks 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 name in bad faith.
The Complainant is of the opinion that the Respondent apparently tries to create the impression that it is the Complainant. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
The Panel determines in accordance with the Complainant’s request and the Rules, paragraph 11(a), that the language of these administrative proceedings shall be the English language. Although the language of the Registration Agreement is the Turkish language, the Panel finds that it would be inappropriate, given the circumstances of this case, to conduct the proceedings in Turkish and request a costly Turkish translation of the Complaint while the Respondent has failed to raise any objection or even to respond to the Complaint or respond to the Center’s communication with regard to the language of the proceedings, even though communicated in Turkish and in English.
According to paragraphs 14(a) and 15(a) of the Rules, the Panel shall decide the Complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable and on the basis of the Complaint where no Response has been submitted.
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 name is 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 name; and
(iii) the disputed domain name has been registered and is 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 name is confusingly similar to the FRANKE trademark of the Complainant.
First, the Panel confirms that the Complainant has satisfied the threshold requirement of having trademark rights in FRANKE. As evidenced in the Complaint, the Complainant is the owner of a large number of word and figurative trademarks with regard to the FRANKE mark in many jurisdictions worldwide, including Turkey.
Although not identical, the disputed domain name fully incorporates the Complainant’s FRANKE trademark.
The disputed domain name differs from the Complainant’s trademarks only by the addition of the generic Turkish term “servisi”, which means “service for” in English, and the city name “Istanbul”. In the Panel’s view, the addition of such generic and geographic terms does not negate the confusing similarity between the Complainant’s trademark FRANKE and the disputed domain name. The Panel finds that this additional incorporation is purely descriptive and does not create a new distinctiveness separate from the Complainant’s FRANKE trademark. Quite the opposite, the full inclusion of the Complainant’s trademark in combination with the generic term “servisi” and the city name “Istanbul”, which directly relates to technical assistance provided by the Complainant for its products in Turkey, even enhances the false impression that the disputed domain name is officially related to the Complainant. The Panel concludes that the disputed domain name is likely to confuse Internet users in their believing that the disputed domain name is affiliated or endorsed by the Complainant or that the use of the disputed domain name is 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 name.
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 the evidence needed to show the Respondent’s lack of rights or legitimate interests 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 of evidence shifts to the Respondent to show that it has rights or legitimate interests in the disputed domain name 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 name 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 FRANKE trademark in the disputed domain name.
According to paragraph 2.3 of the WIPO Overview 2.0, it is the consensus view among UDRP panelists that “a reseller or distributor can be making a bona fide offering of goods and services and thus have a legitimate interest in the domain name if its use meets certain requirements”. It is stated that “these requirements normally include the actual offering of goods and services at issue, the use of the site to sell only the trademarked goods, and the site’s accurately and prominently disclosing the registrant’s relationship with the trademark holder”.”
In view of the Panel, these requirements also apply mutatis mutandis to repair services offered for products of third parties if the trademarks of these products are part of a domain name.
As evidenced by the provided screenshots of the website linked to the disputed domain name in the case file, the Respondent particularly failed in accurately and prominently disclosing the lack of relationship with the Complainant. On the contrary, the design and appearance of the website linked to the disputed domain name rather causes the impression that the Respondent is an official or at least authorized repair service of the Complainant in Turkey.
In the absence of a Response, 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 name.
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 name in bad faith.
The Panel is of the opinion that the Respondent intentionally attempted to create a likelihood of confusion among customers and/or to tarnish the Complainant’s FRANKE trademark, apparently for commercial gain or any other illegitimate benefit.
The following is only a selection of various indications in the case file demonstrating that the Respondent was and still is acting in bad faith.
First, the Panel believes that the Respondent must have been well aware of the Complainant’s trademarks when it registered the disputed domain name on September 24, 2013. At the date of registration of the disputed domain name, the Complainant’s FRANKE trademark was already well-known worldwide, including in Turkey, for many years.
Second, the Respondent preferred not to respond to the Complainant’s contentions, although being informed of the pending administrative proceedings by email and courier in Turkish and English language.
Third, the Respondent conceals its true identity.
All in all, the Panel concludes that the disputed domain name was registered and is 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 name be transferred to the Complainant.
Kaya Köklü
Sole Panelist
Date: June 6, 2016
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