The Complainant is International Business Machines Corporation of Armonk, New York, United States of America, represented by Devon DiSiena, United States of America (“United States”).
The Respondent is Murat Elmas, FORSIST Teknoloji Ltd. Sti. of Istanbul, Turkey, self-represented. 2. The Domain Names and Registrar
The disputed domain names and are registered with GoD, LLC
(the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 25, 2016. On October 25, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On October 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 November 2, 2016. In accordance with the Rules, paragraph 5, the due date for Response was November 22, 2016. The Respondent did not submit any formal response. Accordingly, the Center notified the Respondent’s default on November 23, 2016.
The Center appointed Kaya Köklü as the sole panelist in this matter on November 28, 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 is a large and well-known provider of computer and computer related goods and services. It is active throughout the world and owns and has owned trademark registrations for IBM in 170 countries since many decades, including United States trademark IBM with registration no. 640,606 registered on January 29, 1957 in international class 9. In 2015, the Complainant’s IBM trademark was ranked as the 5th best global brand by “Interbrand”.
Based on the current record, the disputed domain names and were registered on February 16, 2016 by the Respondent.
The Respondent seems to be a representative of an IT company from Istanbul, Turkey.
At the time of the decision, the disputed domain names have been redirected to the Respondent’s company homepage, which provides various IT services for undertakings.
According to the available record, the Respondent did not reply to the cease-and-desist letter sent by the Complainant on September 13, 2016 claiming the transfer of the disputed domain names. 5. Parties’ Contentions A. Complainant
The Complainant requests the transfer of the disputed domain names.
The Complainant believes the disputed domain names are identical or confusingly similar to the Complainant’s well-known IBM trademark.
The Complainant argues that the only difference between the disputed domain names and the Complainant’s trademark is that the disputed domain names additionally comprise the country name “Turkey” respectively “Türkiye” in the Turkish language. The Complainant is of the opinion that the addition of the country name does not negate the confusing similarity with its IBM trademark.
Furthermore, the Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain names. In particular, the Complainant states that the Complainant has never granted a permission or license to the Respondent to use its IBM 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 and that the Respondent is not making a legitimate noncommercial or fair use of the disputed domain names. In addition, the Complainant contends that the Respondent has not been commonly known by the disputed domain names.
Finally, it is argued that the Respondent has registered and is using the disputed domain names in bad faith. The Complainant is particularly of the opinion that the Respondent tries to attract Internet users for illegitimate purposes and to cause damage to the Complainant by creating a likelihood of confusion as to the source, affiliation, sponsorship, or endorsement of the websites. B. Respondent
The Respondent did not formally reply to the Complainant’s contentions.
However, the Center received an email communication from a person named Alper Tör on behalf of the Respondent’s company on November 7, 2016.
In its email, the Respondent claims that he is “trying to establish a worldwide sales network of Islamic books – Islamic Book Market”, however admitting that the website itself is “not completed” yet although Respondent claims that marketing materials including branding, hardcopy and electronic documents have been produced. He alleges also that this “is the main reason why the [disputed domain] names are pointing to our [IT company’s] site”. He also argues that the Complainant had sufficient opportunity to register the disputed domain names itself, but failed to do so. In addition, the Respondent identifies himself “as a long time IBM lover”. 6. Discussion and Findings
According to paragraph 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.
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 names are identical or confusingly similar to a trademark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain names; and
(iii) the disputed domain names have been registered and are 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 formally 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 Complainant has registered trademark rights in the mark IBM by many trademark registrations for many decades. In line with previous UDRP decisions, the Panel believes that the Complainant’s trademark is in fact well-known.
The Panel further finds that the disputed domain names are confusingly similar to the Complainant’s registered IBM trademark, as they fully incorporate the Complainant’s trademark. The mere addition of the country name “Turkey” and “Türkiye” respectively to the disputed domain names does not serve to distinguish the disputed domain names from the Complainant’s registered IBM trademark. It is even likely that the addition of the country name even enhances the confusion among users in their believing that the disputed domain names are official websites of the Complainant particular for the Turkish market.
Accordingly, the Panel finds that the Complainant has satisfied the requirement 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 names.
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 shifts to the Respondent to show that it has rights or legitimate interests in the disputed domain names 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.
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 IBM trademark in the disputed domain names.
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 names according to the Policy, paragraph 4(a)(ii) and 4(c).
In the email communication of November 7, 2016, the Respondent does not indicate that he is commonly known by the disputed domain names. Furthermore, the Respondent has failed to demonstrate any of the other non-exclusive circumstances evidencing rights or legitimate interests under the Policy, paragraph 4(c) or other evidence of rights or legitimate interests in the disputed domain names.
The Respondent has failed to show that the disputed domain names have been or are intended to be used in connection with a bona fide offering of goods or services. The allegation that the disputed domain names are intended to be used for an “Islamic Book Market” is not convincing. The Respondent did not provide any evidence or documentation supporting this allegation. Quite the opposite, the fact that the Respondent redirects the disputed domain names to the official website of its IT service company strongly indicates that the Respondent’s allegation is self-serving only.
In any case, the allegations made on behalf of the Respondent do in view of the Panel not help to establish a right or a legitimate interest to use the disputed domain names.
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 names 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 IBM trademark, apparently for commercial gain.
The following are the various indications in the case file demonstrating that the Respondent registered the disputed domain names and still is acting in bad faith.
First, the Panel believes that the Respondent must have been aware of the Complainant’s well-known IBM trademark when it registered the disputed domain names on February 16, 2016. At the date of registration of the disputed domain names, the Complainant’s IBM trademark was already recognized worldwide, including in Turkey, for many decades. In addition, in the email communication of November 7, 2016 on behalf of the Respondent, the Respondent identifies himself “as a long time IBM lover”.
In the Panel’s view, the Respondent has registered and is using the disputed domain names solely for creating an association with the Complainant’s products and services offered in Turkey. As the disputed domain names are redirected to the official homepage of the Respondent’s IT service company, the Panel is convinced that the Respondent has intentionally registered the disputed domain names to mislead for commercial gain Internet users who may search for official information as well as goods and services provided by the Complainant in Turkey.
All in all, the Panel is convinced that the above demonstrates a typical cybersquatting case, which the UDRP was designed to stop.
The Panel therefore concludes that the disputed domain names were registered and are being used in bad faith and that the Complainant has also 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 names and be transferred to the Complainant.
Kaya Köklü
Sole Panelist
Date: December 9, 2016
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