The Complainant is Société Anonyme des Galeries Lafayette of Paris, France, represented by Dreyfus & associés, France.
The Respondent is Ilgar Ahmetli of Istanbul, Turkey, self-represented. 2. The Domain Name and Registrar
The disputed domain name is registered with Aerotek Bilisim Sanayi Ve Ticaret A.S. (the "Registrar"). 3. Procedural History
The Complaint in English was filed with the WIPO Arbitration and Mediation Center (the "Center") on January 30, 2017. On January 30, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 3, 2017, 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 Registrar also confirmed that the registration agreement of the disputed domain name is in English.
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 February 7, 2017. In accordance with the Rules, paragraph 5, the due date for Response was February 27, 2017. On February 23, 2017, the Respondent submitted to the Center an informal email communication in Turkish but did not submit any formal response. Accordingly, the Center informed that it would proceed to appoint the Administrative Panel on February 28, 2017.
The Center appointed Kaya Köklü as the sole panelist in this matter on March 3, 2017. 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 city-center fashion retailer, which belongs to a group of companies with a long history in commerce and retail. It is based in France and has around 14,000 employees. Outside France, it has four stores, namely in Berlin, Germany; Dubai, United Arab Emirates; Jakarta, Indonesia; and Bejing, China. It has publicly announced on its website the opening of an additional store in Istanbul, Turkey.
The Complainant is the owner of the trademark GALERIES LAFAYETTE, which is registered in various jurisdictions, including in Turkey, where the Respondent is apparently located. The Complainant is, e.g., the registered owner of the International Trademark No. 553543, registered on April 12, 1990, designating Turkey and covering protection for goods and services in classes 1 to 42.
Furthermore, the Complainant holds and operates various domain names incorporating the GALERIES LAFEYETTE trademark, including since August 1, 1997.
The Respondent appears to be an individual from Istanbul, Turkey.
The disputed domain name was registered on May 30, 2016.
The screenshots provided by the Complainant dated August 5, 2016 (cf. Annex 1 to the Complaint) show that the disputed domain name was offered for sale to a price of TRY 9,999. At the time of the Decision, the disputed domain name was inactive.
According to the available record, the Respondent did not reply to a cease-and-desist letter sent by the Complainant on November 30, 2016 and to various reminders, asking for the immediate cease of use and the transfer of the disputed domain name to the Complainant. 5. Parties' Contentions A. Complainant
The Complainant requests the transfer of the disputed domain name.
The Complainant argues that the disputed domain name is identical or at least confusingly similar to the Complainant's GALERIES LAFAYETTE trademark.
The Complainant believes that the only difference between the disputed domain name and the Complainant's trademark is the addition of the generic Top-Level Domain ("gTLD") ".istanbul". The Complainant is of the opinion that the addition of this gTLD should be disregarded when assessing identity or confusing similarity.
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 GALERIES LAFAYETTE trademark. The Complainant further alleges that the Respondent has never used and does not intend to use the GALERIES LAFAYETTE trademark 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 particularly believes that due to the notoriety of the GALERIES LAFAYETTE trademark, the Respondent was or should have been aware of the GALERIES LAFAYETTE trademark when it registered the disputed domain name. Furthermore, the Complainant is of the opinion that the Respondent uses the disputed domain name in bad faith by trying to gain illegitimate benefits from the reputation and goodwill of the GALERIES LAFAYETTE trademark. B. Respondent
The Respondent did not formally reply to the Complainant's contentions.
However, the Center received an email from the Respondent on February 23, 2017, in Turkish. In his email, the Respondent argues that he never had and still does not have any commercial interest in the disputed domain name. He further argues that the Complainant had the chance to register the disputed domain name itself, but simply missed this opportunity. Finally, he asserts that "laf" and "ayette" are terms with a religious or at least dictionary meaning and that the Respondent has used the additional term "galeries" within the disputed domain name only for the purpose to attract more people. 6. Discussion and Findings
According to paragraph 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 trademark 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 identical to the GALERIES LAFAYETTE trademark of the Complainant.
To begin with, the Panel confirms that the Complainant has satisfied the threshold requirement of having relevant trademark rights. As evidenced in the Complaint, the Complainant is the owner of the trademark GALERIES LAFAYETTE in many jurisdictions worldwide, including in Turkey, for many years.
The disputed domain name incorporates the Complainant's GALERIES LAFAYETTE trademark in its entirety.
The disputed domain name differs from the GALERIES LAFAYETTE trademark only by the addition of the gTLD ".istanbul". A gTLD is typically disregarded within the assessment of identity or confusing similarity.
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 shifts to the Respondent to show that it has rights or legitimate interests in the disputed domain name 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 GALERIES LAFAYETTE trademark in the disputed domain name.
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).
In the absence of a formal Response, the Respondent has failed to demonstrate any of the nonexclusive circumstances evidencing rights or legitimate interests under the Policy, paragraph 4(c) or provide any other evidence of a right or legitimate interest in the disputed domain name. In view of the Panel, the Respondent was aware of the Complainant's GALERIES LAFAYETTE trademark long before registering and using the disputed domain name. As set out in more detail below, the Panel rather believes that the Respondent deliberately has chosen the disputed domain name in order to cause confusion with the Complainant's trademark and to gain illegitimate benefits from the Complainant's goodwill and reputation. The allegations of the Respondent in his email of February 23, 2017, are in view of the Panel self-serving assertions only. In fact, the Panel finds it hard to conceive of any use of the Complainant's trademark by the Respondent, which would qualify as a legitimate use.
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, particularly for the following reasons.
First, the Panel is convinced that the Respondent must have been well aware of the Complainant's trademark when it registered the disputed domain name on May 30, 2016. At the date of registration of the disputed domain name, the Complainant's GALERIES LAFAYETTE trademark was already registered and widely known, including in Turkey.
Second, the Respondent apparently never actively used the disputed domain name so far. Instead, it offered the disputed domain name for sale at a price far beyond the cost of registration (cf. Annex 1 to the Complaint). The Panel notes that offering a domain name for sale is not per se an indication of bad faith. However, considering all the circumstances of the present case, the Panel believes that there is sufficient indication in the case record to assess that the Respondent registered the disputed domain for the sole purpose of selling it at a later time to the Complainant or any other interested third party. The Panel is particularly convinced of the Respondent's ill intention as it cannot conceive any good faith use of the disputed domain name which does not interfere with the Complainant's trademark rights. In this regard, the Panel does not find the Respondent's allegation in his email communication of February 23, 2017 to be credible. In the Panel's view, all provided statements by the Respondent were self-serving assertions only.
Third, the Respondent preferred not to properly respond to the Complainant's warning letter of November 30, 2016, and its contentions within the pending administrative proceeding.
As it has been the case in several previous UDRP cases, the fact that the disputed domain name is currently inactive does not prevent a finding of bad faith use and does not change the Panel's views in this respect.
Taking all facts of the case into consideration, the Panel believes that this is a typical cybersquatting case, which the UDRP was designed to stop.
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: March 16, 2017
Full & Egal Universal Law Academy