The Complainant is intracosmed AG of Urnäsch, Switzerland, represented by Zulauf Partners, Switzerland.
The Respondent is FBS Inc, Whoisprotection biz of Istanbul, Turkey / Bılal Çelik of Gaziantep, Turkey, self-represented. 2. The Domain Name and Registrar
The disputed domain name is registered with FBS Inc. (the "Registrar"). 3. Procedural History
The Complaint in English was filed with the WIPO Arbitration and Mediation Center (the "Center") on August 8, 2017. On August 8, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 14, 2017, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint and stating that the language of the registration agreement of the disputed domain name is Turkish. The Center sent an email communication to the Complainant on August 16, 2017 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on August 18, 2017.
Pursuant to the Complaint submitted in English and the registrar verification dated August 14, 2017 stating that Turkish is the language of the registration agreement of the disputed domain name, on August 16, 2017, the Center sent a request in English and Turkish that the Parties submit their comments on the language of the proceeding. On August 18, 2017, the Complainant submitted its request for English to be the language of the proceeding. The Respondent did not reply to the Center's email or to the Complainant's request for English.
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 in Turkish and English of the Complaint, and the proceedings commenced on August 23, 2017. In accordance with the Rules, paragraph 5, the due date for Response was September 12, 2017. The Respondent did not submit a formal response but submitted an informal communication on September 6, 2017, offering to transfer the disputed domain name to the Complainant for EUR 400. On September 12, 2017, the Center invited the Complainant to consider submitting a request for suspension of the proceedings to explore possible settlement between the Parties by September 19, 2017. The Center did not receive any such request from the Complainant. On September 20, 2017, the Center notified the Parties that it would proceed with the Panel appointment process.
The Center appointed Kaya Köklü as the sole panelist in this matter on September 25, 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 Swiss producer of cosmetics and was founded in 1991. It is active in various countries around the world, particularly in Europe.
The Complainant is the owner of various trademark registrations containing the term ARTEMIS, including International Registration no. 235285 for ARTEMIS, registered on September 5, 1960 for perfumery and cosmetics products, International Registration no. 966142 for ARTEMIS OF SWITZERLAND (device), registered on April 16, 2008, and International Registration no. 1037202 for ARTEMIS OF SWITZERLAND, registered on March 30, 2010 for cosmetics and protected in the European Union, United States of America, Australia, Japan and other jurisdictions (all of them jointly referred to as "ARTEMIS trademarks" in the following Decision). The mentioned trademarks were transferred from its previous owner to the Complainant.
Furthermore, the Complainant holds and operates the domain name since July 12, 2015, which is available inter alia in German and English.
The disputed domain name was registered on January 19, 2017.
The Respondent is composed of a domain name privacy registration service and an individual from Gaziantep, Turkey (both of them jointly accepted and referred to as the "Respondent" in the following Decision).
At the time of the Decision, the disputed domain name was inactive.
According to the documents provided by the Complainant, the Respondent did not reply to a letter previously sent by the Complainant asking for a voluntary transfer of the disputed domain name.
However, in its email communication to the Center on September 6, 2017, the Respondent offered to transfer the disputed domain name to the Complainant in return of a payment in the amount of EUR 400. 5. Parties' Contentions A. Complainant
The Complainant requests the transfer of the disputed domain name.
The Complainant believes that the disputed domain name is confusingly similar to the Complainant's ARTEMIS and ARTEMIS OF SWITZERLAND trademarks.
The Complainant argues that the main difference between the disputed domain name and the Complainant's ARTEMIS trademark is that the disputed domain name additionally comprises the descriptive terms "beauty center". The Complainant is of the opinion that the addition of these descriptive terms do not negate the confusing similarity with its ARTEMIS trademarks.
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 ARTEMIS trademarks. The Complainant further alleges that the Respondent has never used and does not intend to use the ARTEMIS trademarks 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 the Respondent was or should have been aware of the ARTEMIS trademarks when it registered the disputed domain name. Furthermore, the Complainant is of the opinion that the Respondent tries to gain illegitimate benefits by freeriding on the goodwill of the ARTEMIS trademarks. B. Respondent
The Respondent did not reply to the Complainant's contentions.
However, the Center received an email communication on September 6, 2017 from the Respondent in Turkish language, indicating that the disputed domain name was previously dedicated to be used for cosmetics and beauty services. But it is alleged by the Respondent that since its Turkish business partner took the decision to use a different name, the disputed domain name was no longer actively used and is now parked only. 6. Discussion and Findings 6.1. Language of the Proceeding
Although the language of the registration agreement of the disputed domain name is the Turkish language, the Panel finds that it would be unnecessary, given the circumstances of this case, to conduct the proceedings in Turkish and request costly and time consuming translations of documents by the Complainant, while the Respondent has failed to raise any objection or even to formally respond to the Complaint or respond to the Center's communication about the language of the proceedings, even though communicated in Turkish and in English. Furthermore, the Panel believes that the Respondent is capable to read and understand the English language.
In light of the above, the Panel comes to the conclusion that the Respondent will not be prejudiced by a decision being rendered in English.
Hence, the Panel determines in accordance with the Complainant's request and the Rules, paragraph 11(a), that the language of these administrative proceedings shall be the English language. 6.2. Substantive Issues
According to paragraphs 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 trademarks 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, Third Edition ("WIPO Overview 3.0") and, where appropriate, will decide consistent with the WIPO Overview 3.0. A. Identical or Confusingly Similar
The Panel finds that the disputed domain name is confusingly similar to the ARTEMIS trademarks of the Complainant.
First, the Panel confirms that the Complainant has satisfied the threshold requirement of having trademark rights in ARTEMIS. As evidenced in the Complaint, the Complainant is the owner of various ARTEMIS trademarks in different jurisdictions.
Although not identical, the disputed domain name fully incorporates the Complainant's trademark ARTEMIS.
The disputed domain name differs from the Complainant's trademarks only by the addition of the terms "beauty center". The Panel shares the Complainant's view that the addition of these generic terms does not negate the confusing similarity between the Complainant's ARTEMIS trademarks and the disputed domain name.
Consequently, it is the Panel's view that the disputed domain name is confusingly similar to the Complainant's ARTEMIS trademarks.
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 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 of evidence shifts to the Respondent to show that it has rights or legitimate interests in the disputed domain name in order 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.
The Panel finds that the Complainant has satisfied this requirement, while the Respondent has failed to file any evidence to demonstrate rights or legitimate interests in the disputed domain name according to the Policy, paragraphs 4(a)(ii) and 4(c).
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 ARTEMIS trademarks in the disputed domain name.
In the absence of a formal Response by the Respondent, there is no indication in the current record that the Respondent is commonly known by the disputed domain name, particularly as the disputed domain name is apparently parked only without being actively used. Furthermore, the Respondent has failed to demonstrate any of the other nonexclusive circumstances evidencing rights or legitimate interests under the Policy, paragraph 4(c) or any other evidence of a right or legitimate interest in the disputed domain name. Especially, the Respondent has failed to show that the disputed domain name has been or is intended to be used in connection with a bona fide offering of goods or services. Even its email communication of September 6, 2017, concerning the previous use of the disputed domain name, does not indicate any rights or legitimate interests, as such would appear to be an attempt to trade off the goodwill associated with the Complainant's trademark, with no authorization to do so.
Based on the findings above, the Panel believes that the evidence available in the case file does not provide a basis for the Panel to find any rights or legitimate interests of the Respondent in respect of the disputed domain name.
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.
The Panel believes that the Respondent's intention was to primarily create a likelihood of confusion among Internet users and/or to freeride on the goodwill of the Complainant's ARTEMIS trademarks, apparently for commercial gain and/or to disrupt the Complainant's business, particularly for the following reasons.
The Panel believes that the Respondent was aware of the Complainant's trademarks when it registered the disputed domain name. At the date of registration of the disputed domain name, the Complainant's ARTEMIS trademark was already actively used in Europe for various years.
In this regard, the Panel notes that the generic terms "beauty center", which are in addition to the ARTEMIS trademark incorporated to the disputed domain name, directly relate to the Complainant's core business in cosmetics and beauty services. It is the Panel's view, this further supports the assessment of bad faith registration and use by the Respondent.
In view of the Panel, bad faith registration and use is further indicated by the fact that the Respondent preferred not to respond to the Complainant's letter of May 22, 2017. The Respondent even preferred not to formally respond to the Complainant's contentions, although being informed of the pending administrative proceedings by email and courier in English and Turkish. The Center only received an email communication from the Respondent with hardly any substantive content, stating that the Respondent is willing to transfer the disputed domain name voluntarily in return of a payment in the amount of EUR 400.
The Panel also notes that the Respondent used a privacy service when creating the disputed domain name. Although privacy services might be legitimate in many cases, it is for the Panel difficult to see in the present case why the Respondent should need to protect his identity except to make it difficult for the Complainant to protect its trademark rights. The Panel rather believes that the choice of the disputed domain name (which fully incorporate the Complainant's ARTEMIS trademarks), rather indicates that the Respondent deliberately opted for a privacy shield in order to prevent an efficient enforcement of legitimate trademark rights by the Complainant.
All in all, the Respondent was not able to provide any convincing argument and evidence for what legitimate purpose it registered the disputed domain name, although he had the chance to do so in his Response or email communication to the Center.
The fact that the disputed domain name does currently not resolve to an active website does not change the Panel's findings in this respect.
All in all, the Panel cannot conceive of any good faith use of the disputed domain name which is not related to the trademark rights owned by the Complainant.
Hence, the Panel is convinced 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: October 9, 2017
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