The Complainant is Nefnef Home Elektronik Hizmetler Sanayi ve Ticaret Limited Sirketi, Mustafa Demir of Denizli, Turkey, represented by Dericioglu & Eren Law Office, Turkey.
The Respondent is Domain Admin, Privacy Protect, LLC (PrivacyP) of Burlington, Massachusetts, United States of America ("United States") / Kamil Yorukoglu of Denizli, Turkey, self-represented. 2. The Domain Name and Registrar
The disputed 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 2, 2017. On August 2, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 4, 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 Complainant filed an amended Complaint on August 4, 2017.
The Center verified that the Complaint together with the amended 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 10, 2017. In accordance with the Rules, paragraph 5, the due date for Response was August 30, 2017. The Response was filed with the Center on August 26, 2017.
The Center appointed Emre Kerim Yardimci as the sole panelist in this matter on September 5, 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 company manufacturing and selling all kinds of textiles products. The Respondent is a physical person and the owner of the software developer company "Yorka Yazilim". The Parties are both located in Denizli and have a business relationship for the creation of e-commerce platform.
The Complainant holds several trademark registrations in Turkey, including the trademark registration No. 2014 73416 for the mark NEFNEFHOME registered on May 10, 2016 in classes 24 and 25 and the trademark registration No. 2015 55907 for the mark NEFNEF registered on February 25, 2016 in class 26.
The Complainant has been the owner of the domain name since July 1, 2015.
The disputed domain name was registered on May 25, 2012 and does not resolve to an active website. 5. Parties' Contentions A. Complainant
The Complainant contends that the disputed domain name is identical to its NEFNEF trademark.
The Complainant considers that the Respondent has no rights or legitimate interests in respect of the disputed domain name, mainly because the Respondent is not commonly known by the disputed domain name and the Respondent is not making a legitimate noncommercial or fair use of the disputed domain name.
Finally, the Complainant contends that the disputed domain name was registered and is being used in bad faith as the Respondent transferred the disputed domain name without any consent or authorization from the Complainant and that these acts amount to fraudulent transfer of the disputed domain name.
The Complainant contends that this registration is a clear case of an abusive registration within the meaning of sub-paragraphs 4(b)(iii) and (iv) of the Policy. B. Respondent
The Respondent contends that it has a right or legitimate interest in the disputed domain name based on the verbal agreement and prior relationship with the Complainant and that the registration of the disputed domain name was not made in bad faith. It argues that he holds the disputed domain name, without active use and it has not offered to sell the disputed domain name and that he merely holds the disputed domain name in case the parties cannot find a solution to continue with their e-commerce project. 6. Discussion and Findings
Pursuant to paragraph 4(a) of the Policy, the Complainant is required to prove the presence of each of the following three elements to obtain the remedy it has requested:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(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. A. Identical or Confusingly Similar
Paragraph 4(a)(i) of the Policy requires the Complainant to show that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
A registered trademark provides a clear indication that the rights in the mark shown on the trademark certificate belong to its respective owner. As indicated above, the Complainant holds several registrations for NEFNEF trademark since 2014.
The disputed domain name integrates the Complainant's NEFNEF trademark in its entirety. The disputed domain name differs from the registered NEFNEF trademark by the generic Top-Level Domain ("gTLD") ".com". Previous UDRP panels have ruled that gTLDs are typically disregarded under the confusing similarity test.
Consequently, the Panel finds that the Complainant has shown that the disputed domain name is identical to a trademark in which the Complainant has rights and satisfied the first requirement under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
The Complainant must show that the Respondent lacks any right or legitimate interest in the disputed domain name.
In the Panel's view, the Complainant has made out its prima facie case under this element of the Policy.
It is clear from the submissions of both Parties that the Respondent was a service provider of software development for creating an e-commerce website. According to the Respondent, the Complainant was his future partner and that the Parties verbally agreed to develop and to manage e-commerce website and that the Parties agreed, for this purpose, to use the NEFNEF trademark which is owned by the Complainant.
However, being a partner of the Complainant for a future enterprise to be created does not by itself give rise to any rights or legitimate interests to the Respondent with respect to the use of the Complainant's trademark. There is also no evidence suggesting that the Respondent is commonly known by the disputed domain name or no further evidence suggesting that the Respondent has any rights in the term "nefnef", which is not a descriptive or generic term.
The Panel is not satisfied with the explanation of the Respondent as to how it has rights or legitimate interests in the disputed domain name.
In the Panel's view the Complainant has made out its prima facie case under this element of the Policy. In the circumstances of this case, and in view of the Panel's discussion below, the Panel finds that the second element of the Policy has been established. C. Registered and Used in Bad Faith
At the time of registration of the disputed domain name, it is undisputed that the Respondent, being in business relationship with the Complainant, was well aware of the Complainant's trademark. The Complainant acquired the disputed domain name from a third party and this fact has been evidenced by an invoiced dated September 28, 2016 submitted as Annex 6 of the Complainant which is not rebutted by the Respondent. As stated above, the Respondent accepts that the trademark NEFNEF belongs to the Complainant.
More importantly, the Respondent accepts that the password for the administration of the disputed domain name was provided by the Complainant "due to the ease of management" and that "this process was done by [the Complainant] voluntarily and endorsed". However, the Respondent failed to provide any evidence enabling him to acquire the disputed domain name in the name or on behalf of the future partnership and in fact the Complainant clearly says the transfer of registrar and registration to the Respondent's name was fraudulent and without the knowledge or consent of the Complainant. Under these circumstances and especially considering that the Complainant has several registered trademarks for NEFNEF, the Panel concludes that the Respondent registered the disputed domain name in its name without any agreement and prior consent of the Complainant.
The circumstances enumerated under paragraph 4 of the Policy that are expressed as being evidence of bad faith do not specifically include the fraudulent transfer of a domain name. The Panel has reviewed the decisions submitted by the Complainant in the Complaint, namely Anglotopia, LLC v. Artem Bezshapochny,WIPO Case No. D2013-0168 and EDP – Energias de Portugal, S.A. v. Huhan, Yuming Zhong,WIPO Case No. D2016-1536, and considering the Respondent's acts of transferring the disputed domain name without authorization of the Complainant and acts of passive holding by using a privacy service, the Panel has come to the conclusion that the disputed domain name is registered and is being used in bad faith in the absence of any plausible explanation from the Respondent as to the transfer of the disputed domain name in its name.
Therefore, in the view of cumulative circumstances, the Panel finds that the requirement of registration and use in bad faith is satisfied, according to the Policy, paragraph 4(a)(iii). 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.
Emre Kerim Yardimci
Sole Panelist
Date: September 19, 2017
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