The Complainant is Siemens AG of Munich, Germany, represented by Müller Fottner Steinecke, Germany.
The Respondent is Ismet Karakaya 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 was filed in English 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 disputed 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.
Pursuant to the Complaint submitted in English and the Registrar’s confirmation that Turkish is the language of the registration agreement, on September 6, 2016, the Center requested that the Parties submit their comments on the language of the proceeding. On September 7, 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, and the proceeding commenced on September 12, 2016. In accordance with the Rules, paragraph 5, the due date for Response was October 2, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 3, 2016.
The Center appointed Uğur G. Yalçıner as the sole panelist in this matter on October 6, 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, a. o. 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 Respondent is a Turkish individual who is located in Istanbul, Turkey.
The disputed domain name was registered on October 28, 2013. At the time of this decision and as supported in evidence submitted by the Complainant, the disputed domain name resolved to a website in Turkish, through which the Respondent offers repairing services for the Complainant’s products. 5. Parties’ Contentions A. Complainant
The Complainant contends as follows:
Identical or Confusingly Similar
The disputed domain name identically contains the trademark SIEMENS, which is followed by the descriptive Turkish word “teknik”, meaning “technical” in English, followed by the generic Top-Level Domain (“gTLD”) “.net”.
The Complainant’s SIEMENS trademark has a high reputation, the Turkish public will automatically recognize the trademark SIEMENS and will associate the disputed domain name with the Complainant and Internet users will have the false impression that the website at the disputed domain name is the Complainant’s official website.
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 name 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 name and the Respondent has not at any time been commonly known by the disputed domain name and does not own a mark for the word “siemens”.
The website at the disputed domain name has the identical house colour mark “petrol blue” as used by the Complainant therefore the Respondent is well aware of the Complainant’s well-known trademark SIEMENS. The Respondent is not using the disputed domain name for a legitimate noncommercial or fair use and the disputed domain name was 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 Agreement for the disputed domain name 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 name and it may be assumed that the Respondent has a sufficient knowledge of the English language enabling it 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 Respodent 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 that the Respondent has, nevertheless, failed to respond to the Complaint or to comment on the language of the proceeding, agrees with the above-mentioned issues which are asserted by the Complainant 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 simply requires the Complainant to demonstrate that the disputed domain name is 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 word “teknik’’ does not negate the confusing similarity between the Complainant’s trademarks and the disputed domain name. The Panel further finds that the addition of the gTLD “.net” may be disregarded when determining whether the disputed domain name is 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 name. 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 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 name. It is clear that the Respondent has not demonstrated any bona fide offering of goods and services by its using the disputed domain name nor has the Respondent shown that it has been commonly known by the disputed domain name.
The disputed domain name resolves to a website in Turkish that offers repair services for SIEMENS products and contains 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 Servisi” (“SIEMENS Service”) or “SIEMENS Beyaz Eşya Servisi” (“SIEMENS Home Appliances Service”), the Respondent clearly albeit misleadingly suggests a business relationship with the Complainant and is therefore not using the disputed domain name in connection with a bona fide offering of goods or services within the meaning of the Policy.
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 registration of the disputed domain name. The Panel believes that the Respondent was well aware of the Complainant’s trademark when it registered the disputed domain name 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 trademarks at the time of registration of the disputed domain name 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 website uses the Complainant’s SIEMENS trademark in connection with offering services related to the Complainant’s goods suggests that by using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website, 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 name 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 name be transferred to the Complainant.
Uğur G. Yalçıner
Sole Panelist
Date: October 14, 2016
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