The Complainant is Merit Turizm Yatirim Ve Isletme Anonim Sirketi of Istanbul, Turkey, represented by Esin Attorney Partnership, Turkey.
The Respondent is Fedlan Kilicaslan, G&F Company Group NV of Wilhelminalaan, Curaçao / Redsoft N.V of Wilhelminalaan, Curaçao, 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 July 20, 2017. On July 20, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On July 20, 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. In response to a notification by the Center that the disputed domain names are registered by multiple respondents, the Complainant filed an amended Complaint on July 21, 2017. The Complainant filed a second amended Complaint on July 25, 2017.
The Center verified that the Complaint together with the amended Complaints 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 July 27, 2017. In accordance with the Rules, paragraph 5, the due date for Response was August 16, 2017. The Respondent submitted an informal communication on July 24, 2017; however did not submit any formal response. Accordingly, the Center notified the Parties that it would proceed to the Panel appointment.
The Center appointed Kaya Köklü as the sole panelist in this matter on August 23, 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 large casino operator with its registered seat in Istanbul, Turkey. It operates various hotels with casino space in Northern Cyprus, Montenegro and Croatia under the name “Merit Royal Hotel Casino Spa”.
It is the owner of a series of trademarks comprising the term “merit”, such as MERIT ROYAL HOTEL CASINO SPA, MERIT INTERNATIONAL and MERIT as a stand-alone trademark. These trademarks are registered in various jurisdictions, including Turkey. According to the case record, the first Turkish trademark registration comprising the term “merit” dates back to the year 1997. Based on the provided documents (Annex 9), the Turkish IP Court in Ankara accepted the Complainant’s trademark MERIT INTERNATIONAL as a well-known trademark among the relevant target public.
The Complainant has further registered and operates the trademark MERIT as part of domain names, e.g., and .
According to the current record, the creation dates of the disputed domain names are as follows:
September 25, 2016
May 25, 2017
May 25, 2017
May 25, 2017
The Respondent is composed of two companies from Curaçao, which are somehow linked to each other (as to be discussed further under 6.1.). At least one of the companies is represented by a natural person apparently from Turkey.
According to the provided documents by the Complainant, the Respondent’s websites at the disputed domain names contained the Complainant’s trademarks and logos. Furthermore, the provided content was apparently online gambling related.
The Complainant successfully filed legal action with the public prosecutor in Turkey claiming to block access to various domain names, like with regard to the disputed domain name .
At the time of the decision, the disputed domain names resolved to a landing page with hyperlinks to third parties’ websites. 5. Parties’ Contentions A. Complainant
The Complainant requests the transfer of the disputed domain names.
The Complainant is of the opinion that the disputed domain names are confusingly similar to its MERIT trademarks.
Furthermore, the Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain names.
Finally, it claims that the Respondent has registered and is using the disputed domain names in bad faith. The Complainant believes that the Respondent was fully aware of the Complainant’s trademarks, when registering the disputed domain names. The Complainant is further of the opinion that the Respondent apparently tries to mislead Internet users and to gain illegitimate benefits by freeriding on the goodwill of its well-known MERIT trademarks. B. Respondent
The Respondent did not reply to the Complainant’s contentions.
However, on July 24, 2017 the Center received an informal email communication in Turkish language from the Respondent. In this email communication, the Respondent provided a Turkish mobile phone number and requested a call back from the Center as he alleged not to have fully understood the content of the administrative proceedings. 6. Discussion and Findings 6.1. Consolidation of Multiple Domain Names
Pursuant to paragraph 3(c) of the Rules, a single complaint may be brought in respect of multiple domain names “provided that the domain names are registered by the same domain name holder”.
The Panel notes that the Respondents are Fedlan Kilicaslan, G&F Company Group NV and Redsoft N.V from Curaçao. The disputed domain name is registered to Fedlan Kilicaslan, G&F Company Group NV, and the disputed domain names , and are registered to Redsoft N.V.
Based on the provided information by the Complainant, the disputed domain name was redirecting to , when the first Complaint was filed. At some point this disputed domain name was also redirecting to and .
The disputed domain name was redirecting to . In addition, the Panel notes that , and were all registered on the same day and that all the disputed domain names are registered with the same Registrar. In view of the specific circumstances of this case, the Panel is satisfied that the disputed domain names (and the websites to which they resolved) are subject to common control and that the consolidation would be fair and equitable to all parties (see paragraph 4.11.2 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)).
Applying this principle to the facts of this case (together with the fact that the Respondents did not contest the Complainant’s assertions) this Panel believes that there is a common person that has control over the disputed domain names. The Panel will therefore, for the purpose of this decision, refer only to “the Respondent”. 6.2. Other legal proceedings
Paragraph 18 of the Rules states that, in case of other legal proceedings between the Parties, it is the Panel’s discretion to decide whether to suspend or terminate the administrative proceedings or to proceed to a decision.
In the present case, the Panel notes that the Complainant successfully filed legal action with the public prosecutor in Turkey claiming to block access to at least one of the disputed domain names, namely .
The Panel believes that this does not affect the present administrative proceeding, as in view of the Panel a claim to block access to a website needs to be assessed separately from a claim to transfer a domain name under the Policy.
Taking the circumstances of the present administrative proceeding into account, the Panel will render a decision under the Policy without creating prejudice as regards any past, pending or future court proceedings in Turkey (See section 4.14.2 of the WIPO Overview 3.0).
Therefore, the Panel believes that it is appropriate to proceed to a decision in compliance with paragraph 18(a) of the Policy. 6.3. Substantive Issues
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 formal 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 names are identical or confusingly similar to the trademarks 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 3.0 and, where appropriate, will decide consistent with the WIPO Overview 3.0. A. Identical or Confusingly Similar
To begin with, the Panel confirms that the Complainant has satisfied the threshold requirement of having trademark rights in MERIT. As evidenced in the Complaint, the Complainant is the owner of some MERIT trademarks, which are registered in various jurisdictions since at least 1997, including in Turkey.
In light of this pre-assessment, the Panel finds that the disputed domain names are confusingly similar to the Complainant’s MERIT trademarks. Each disputed domain name fully incorporates the mark MERIT within the domain names. In view of the Panel, the addition of dictionary terms or other non-distinctive letters would not prevent a finding of confusing similarity under the first element. The Panel rather concludes that the disputed domain names are likely to confuse Internet users into their believing that the disputed domain names are affiliated or endorsed by the Complainant or that the use of the disputed domain names is at least authorized by the Complainant, particularly as the provided online casino, live betting and online slot game services provided by the Respondent are essentially the same services as provided by the Complainant. While the Top-Level Domain (“TLD”) in a domain name is typically disregarded under the first element confusing similarity test, the Panel further believes that the Respondent selected the gTLD “.bet” for the disputed domain names deliberately in order to increase the potential confusion among Internet users who are searching for gambling and betting services provided by the Complainant.
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
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 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 prima facie evidence that the Respondent has no rights or legitimate interests, particularly no license to use the Complainant’s MERIT trademarks.
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 names. Particularly, the Panel finds on the available record that the disputed domain names were intended to be used in connection with offering of services in bad faith and the clear intention to freeride on the Complainant’s goodwill. The Respondent was apparently well aware of the Complainant’s MERIT trademarks, its business and its provided services long before registering and using the disputed domain names. The Panel is convinced that the Respondent deliberately has chosen the disputed domain names in order to cause confusion with the Complainant’s MERIT trademarks among Internet users, particularly as the provided online gambling and betting services by the Respondent are at least partly the same services as provided by the Complainant. In any case, the Panel does not see sufficient basis for assessing a bona fide offering of goods or services by the Respondent.
Consequently, the Panel finds that, based on the Panel’s findings and discussion below and further under the third element, that the Respondent does not have rights or legitimate interests in the disputed domain names according to the Policy, paragraph 4(a)(ii) and 4(c). C. Registered and Used in Bad Faith
The Panel believes that the Respondent deliberately attempted to create a likelihood of confusion among Internet users and/or to freeride on the goodwill of the Complainant’s MERIT trademarks, apparently for illegitimate commercial gain, particularly for the following reasons.
At the date of registration of the disputed domain names, the Respondent was aware of the Complainant’s MERIT trademarks.
Furthermore, the landing pages with PPC links to third parties’ websites demonstrate that the Respondent has deliberately chosen the disputed domain names to mislead Internet users who are searching for the services provided by the Complainant.
Additionally, the Respondent preferred not to respond to the Complainant’s contentions, although being informed of the pending administrative proceedings by email and courier in English and, upon request, even partly in Turkish language.
In view of the Panel, all this indicates the Respondent’s bad faith intentions to gain illegitimate benefit by freeriding on the notoriety and goodwill of the Complainant’s MERIT trademarks.
The fact that the disputed domain names are inactive at the time of the decision does not change the Panel’s findings 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. In view of the Panel, the disputed domain names were registered and are 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 names , , and be transferred to the Complainant.
Kaya Köklü
Sole Panelist
Date: September 5, 2017
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