The Complainant is SIEMENS AG of Munich, Germany, represented by Müller Fottner Steinecke, Germany.
The Respondent is Mr. Evren Akagunduz of Istanbul, Turkey. 2. The Domain Name and Registrar
The disputed domain name, (the "Domain Name"), is registered with PDR Ltd. d/b/a PublicDomainR (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on August 24, 2016. On August 24, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On August 25, 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.
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 August 26, 2016. In accordance with the Rules, paragraph 5, the due date for Response was September 15, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on September 16, 2016.
The Center appointed Tony Willoughby as the sole panelist in this matter on September 27, 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 is the registered proprietor of inter alia European Union Trade Mark No. 4240263 SIEMENS (figurative, the word appearing in bold capital letters) registered on March 28, 2006 (application filed January 14, 2005) for a variety of goods and services relating to its business.
The Domain Name was registered on August 20, 2013 and it is currently inactive. Prior to its expiry on August 20, 2016 the Domain Name was connected to a Turkish language website which appears to have been trading in and/or offering other services in respect of the Complainant's household appliances, such as washing machines, dish-washers, televisions etc. The website featured a prominent representation of the Complainant's SIEMENS trade mark in the Complainant's house colour. 5. Parties' Contentions A. Complainant
The Complainant contends that the Domain Name is confusingly similar to the Complainant's SIEMENS registered trade mark, that the Respondent has no rights or legitimate interests in respect of the Domain Name and that the Domain Name was registered and is being used in bad faith. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings A. General
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name, the Complainant must prove each of the following, namely that:
(i) The 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 Domain Name; and
(iii) The Domain Name has been registered and is being used in bad faith. B. Identical or Confusingly Similar
The Domain Name incorporates the Complainant's SIEMENS trade mark and additional descriptive matter at the second level, which does nothing to diminish the distinctiveness of the trade mark. In the case of the Domain Name, the generic ".org" Top Level Domain identifier serves no distinctive purpose and may be ignored for the purpose of the assessment under paragraph 4(a)(i) of the Policy.
The Panel finds that the Domain Name is confusingly similar to a trade mark in which the Complainant has rights. C. Rights or Legitimate Interests
The Complainant asserts that the Respondent is unconnected with the Complainant, having no permission to use the Complainant's trade mark. The Complainant acknowledges, however, that the Respondent's website, a commercial website, was concerned with the Complainant's household appliances.
To what extent is it reasonable for a reseller (or repairer) of goods to use for (or as part of) a domain name the original manufacturer's trade mark? The issue is addressed in paragraph 2.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0"), which poses the question: "Can a reseller/distributor of trademarked goods or services have rights or legitimate interests in a domain name which contains such trademark?" At this stage, for present purposes it is only necessary to quote the first part of the so-called "consensus view":
"Normally, 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. 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. The respondent must also not try to "corner the market" in domain names that reflect the trademark. Many panels subscribing to this view have also found that not only authorized but also unauthorized resellers may fall within such Oki Data1 principles."
In this case the Respondent appears to have been offering retailing and/or repair services in relation to the Complainant's goods. The evidence in respect of the Respondent's website is in Turkish, which is not a language with which the Panel is familiar. The Panel will assume in the Respondent's favour that the Respondent deals/dealt exclusively in the Complainant's goods. Where the Respondent's position fails to meet the test set out above is on the next requirement, namely that the site does not appear to accurately and prominently disclose the registrant's relationship with the trade mark holder. The Respondent is an unauthorized reseller, yet the prominent use of the Complainant's SIEMENS trade mark in the Complainant's house colour would, in the view of the Panel, indicate to most visitors a degree of official authorization. It appears to the Panel to be an official website of or authorized by the Complainant.
Thus the Respondent's use of the Domain Name fails to pass the test set out in paragraph 2.3 of WIPO Overview 2.0.
In the Panel's view, in selecting the Domain Name, a domain name comprising at the second level the Complainant's trade mark and the descriptive word "servis", which is said to be the Turkish for "service", for a website appearing to be an official website of or authorized by the Complainant, the Respondent is falsely claiming to be an official dealer in the Complainant's products.
In the Panel's view a business operating in this guise cannot give rise to rights or legitimate interests within the meaning of paragraph 4(c)(i) of the Policy. There appears to the Panel to be a serious risk that visitors will be attracted to the website in the erroneous belief that the website is an official website of or authorized by the Complainant.
In the absence of any explanation from the Respondent the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name. D. Registered and Used in Bad Faith
On the same basis and in the absence of anything from the Respondent, the Panel finds that the Domain Name was registered and is being used in bad faith within the meaning of paragraph 4(b)(iv) 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 Domain Name, , be transferred to the Complainant.
Tony Willoughby
Sole Panelist
Date: October 3, 2016
1 Oki Data Americas, Inc. v. ASD, Inc.,WIPO Case No. D2001-0903.
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