The Complainant is Siemens AG of Munich, Germany, represented by Müller Fottner Steinecke, Germany.
The Respondent is Murat Cayiroglu, Nesiline Bilisim Hizmetleri / Murat Cayiroglu, Nesiline Bilisim Teknolojileri of Istanbul, Turkey. 2. The Domain Names and Registrar
The disputed domain names and are registered with FBS Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on August 19, 2016. On August 19, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On August 22, 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.
Pursuant to the Complaint submitted in English and the Registrar’s confirmation that Turkish is the language of the registration agreement, on September 1, 2016, the Center requested that the Parties submit their comments on the language of the proceeding. On September 1, 2016, the Complainant submitted its request for English to be the language of the proceeding. The Respondent did not submit any comment on the language of the 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 in English and in Turkish, and the proceeding commenced on September 9, 2016. In accordance with the Rules, paragraph 5, the due date for Response was September 29, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 30, 2016.
The Center appointed Uğur G. Yalçıner as the sole panelist in this matter on October 5, 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, whose headquarters are in Germany, is a large electrical engineering and electronics company, which trades worldwide under the name “Siemens”. The Complainant relies on the following trademarks:
- SIEMENS International trademark No. 637074 registered on March 31, 1995, in the name of Siemens AG, covering more than 60 countries worldwide, inter alia Turkey, and claiming protection for goods and services in international classes 1, 3, 5, 6, 7, 8, 9, 10, 11, 12, 14, 16, 17, 20, 21, 28, 35, 36, 37, 38, 40, 41 and 42.
- SIEMENS European Union trade mark No. 4240263 registered on March 28, 2006, in the name of Siemens AG, claiming protection for goods and services in classes 1, 3, 4, 6, 7, 8, 9, 10, 11, 12, 14, 16, 17, 20, 21, 28, 35, 36, 37, 38, 39, 40, 41 and 42.
The disputed domain name was registered on March 02, 2011 and was registered on April 18, 2011.
At the time of this Decision, and as supported in evidence submitted by the Complainant, the disputed domain names resolve to websites in Turkish, offering repair services for the Complainant’s SIEMENS products. 5. Parties’ Contentions A. Complainant
The Complainant contends as follows:
Identical or Confusingly Similar
The domain names identically contain the trademark SIEMENS, which is followed by the descriptive Turkish words “servisleriniz” and “servislerimiz” meaning in English “your services” and “our services” respectively followed by the generic Top-Level Domain (“gTLD”) “.com”.
The Complainant’s SIEMENS trademark has a high reputation, the Turkish public will automatically recognize the trademark SIEMENS and will associate the disputed domain names with the Complainant and Internet users will have the false impression that the websites at the disputed domain names are the Complainant’s official websites.
The trademark SIEMENS is used in respect of home appliances through license by B/S/H Hausgeräte GmbH and its Turkish affiliate BSH Ev Aletleri Sanayi ve Ticaret A.Ş in Turkey.
Rights or Legitimate Interests
The Respondent has no rights or legitimate interests in respect of the disputed domain names since the Respondent is not connected with the Complainant and has never been one of the Complainant’s representatives or employees.
The Respondent has never been licensed or authorised by the Complainant to use the disputed domain names. The Respondent has not at any time been commonly known by the disputed domain names and does not own a mark for the word “siemens”.
The disputed domain names have the identical house colour mark “petrol blue” as used by the Complainant therefore the Respondent is well aware of the well-known trademark SIEMENS. The Respondent is not using the disputed domain names for a legitimate noncommercial or fair use and the disputed domain names were selected by the Respondent with the intent to attract Internet users for illegitimate purposes and to cause damage to the Complainant.
Registered and is being used in bad faith
The Respondent’s SIEMENS mark is a well-known trademark and the Respondent knew or should have known about the Complainant’s earlier rights on the trademark SIEMENS. The Respondent intended to use the strong reputation throughout the world of the Complainant’s trademark SIEMENS in order to confuse the public and to cause damage to the Complainant in disrupting its business. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1. Language of the Proceeding
Paragraph 11(a) of the Rules provides that: “Unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.”
Although the language of the Registration Agreements for the disputed domain names is Turkish, the Complainant argues that the language of the administrative proceeding should be English for the following reasons:
- The English language is the most usual language worldwide.
- The Respondent registered the disputed domain names and it may be assumed that the Respondent has a sufficient knowledge of the English language enabling him to understand all relevant information in this administrative proceeding and to communicate in this language.
- Translating the Complaint into Turkish would incur considerable expenses to the Complainant and this would also cause delays in the proceeding.
The Respondent did not submit any comment on the language of the proceeding. The Panel, noting that the Respondent was notified of the present proceeding in both English and Turkish, and has nevertheless failed to respond to the Complaint or raise any objection regarding the language of the proceeding, agrees with the Complainant as to why the administrative proceeding should be conducted in English and determines English to be the language of this proceeding. 6. 2. Substantive Issues
Pursuant to paragraph 14 of the Rules, in case of failure of a Party to comply with any of the time periods established by the Rules, the Panel shall proceed to a decision based on the Complaint. Since the Respondent failed to submit a Response, the Panel may decide the dispute based on the Complaint and may accept all reasonable factual allegations as true. A. Identical or Confusingly Similar
The Policy requires the Complainant to demonstrate that the disputed domain names are identical or confusingly similar to the trademark SIEMENS in which the Complainant has rights. The Panel is satisfied that the Complainant is the owner of the trademark SIEMENS as evidenced in the annexes to the Complaint.
The Panel is of the opinion that the addition of the Turkish words “servisiniz” and “servisimiz” do not negate the confusing similarity between the Complainant’s trademark and the disputed domain names. The Panel further finds that the addition of the gTLD “.com” 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. D2006-0189. It has been stated in several UDRP decisions by other 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.
Accordingly, the Panel finds that the requirements of paragraph 4(a)(i) of the Policy are fulfilled by the Complainant. B. Rights or Legitimate Interests
In accordance with paragraph 4(a)(ii) of the Policy, the Complainant must show 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 the complainant is required to make out an initial prima facie case that the respondent lacks rights or legitimate interests in a 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 name shifts to the respondent. The Policy at paragraph 4(c) provides various ways in which the respondent may demonstrate rights or legitimate interests in a domain name. If the respondent fails to do so, the complainant may be deemed to have satisfied paragraph 4(a)(ii) of the Policy.
In this case, the disputed domain names resolve to websites in Turkish that offer services for SIEMENS products and contain the Complainant’s trademarks. The Respondent provides private repair services for the Complainant’s products. When evaluated together with the trademarks and expressions such as “Siemens Hizmet Servisi” (“Siemens Service Center”) or “Siemens Beyaz Eşya ve Klima Servisi” (“Siemens Home Appliances and Air Conditioning Service”), the Respondent clearly albeit misleadingly suggests a business relationship with the Complainant and is therefore not making use of the disputed domain names in connection with a bona fide offering of goods or services within the meaning of the Policy.
Further, in the absence of a Response, the Respondent has not provided any evidence of the type specified in paragraph 4(c) of the Policy, or any other circumstances giving rise to a right or legitimate interest in the disputed domain names. It is clear that the Respondent has not demonstrated any bona fide offering of goods and services by its use of the disputed domain names.
Accordingly, the Panel finds that the Complainant has satisfied paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
The Complainant’s SIEMENS trademark was registered and used before the Respondent’s registrations of the disputed domain names. The Panel believes that the Respondent was well aware of the Complainant’s trademarks when it registered the disputed domain names and that the trademark SIEMENS enjoys substantial reputation due to its longstanding and widespread use (see among others, Siemens AG v. Joseph Wunsch/C,WIPO Case No. D2006-1248).
In accordance with previous decisions issued under the Policy, the Panel is of the opinion that actual knowledge of the Complainant’s trademark at the time of registration of the disputed domain names is to be considered as an inference of bad faith, Parfums Christian Dior v. Javier Garcia Quintas and C,WIPO Case No. D2000-0226.
Further, the fact that the Respondent’s websites use the Complainant’s SIEMENS trademarks in connection with offering services related to the Complainant’s goods suggests that by using the disputed domain names, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its websites, by creating a likelihood of confusion with the Complainant’s trademark.
After examining all circumstances 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 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.
Uğur G. Yalçıner
Sole Panelist
Date: October 14, 2016
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