The Complainant is Future Teknoloji A.S. of Istanbul, Turkey, represented by Aydın & Aydın Law Firm, Turkey.
The Respondent is Murat Imsiyatoglu, 2652cde49e22d00c65787c27e1e9cf85 of Hatay, Turkey, self-represented. 2. The Domain Name and Registrar
The disputed domain name is registered with NameSilo, LLC (the "Registrar"). 3. Procedural History
The Complaint in English was filed with the WIPO Arbitration and Mediation Center (the "Center") on August 14, 2017. On August 14, 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 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 September 13, 2017. In accordance with the Rules, paragraph 5, the due date for Response was October 3, 2017. The Response was filed with the Center in both English and Turkish on October 2, 2017.
The Center appointed Emre Kerim Yardimci as the sole panelist in this matter on October 9, 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.
On October 26, 2017, the Panel issued an Administrative Panel Order (the "Panel Order") under paragraph 12 of the Rules inviting the Complainant and the Respondent to provide further information. Both the Complainant and the Respondent submitted their replies in a timely manner. 4. Factual Background
The Complainant is a Turkish company offering online retail services under the Turkish trademarks ISTEGELSIN.COM, registered on November 30, 2006 with registration no. 2005 40838 and on July 24, 2008 with registration no. 2007 34030.
The Complainant acquired these trademarks through successive assignments respectively in 2014 and 2017 from two different companies having the same shareholder.
The Respondent who is a physical person domiciled in Hatay, Turkey, acquired the disputed domain name on October 16, 2015 through an auction. The disputed domain name is currently offered for sale for an amount of USD 30,000. 5. Parties' Contentions A. Complainant
The Complainant requests the transfer of the disputed domain name.
The Complainant asserts that the disputed domain name is identical to the Complainant's trademark ISTEGELSIN.
The Complainant considers that the Respondent has no rights or legitimate interests in respect of the disputed domain name, mainly because the Complainant has neither licensed nor otherwise authorized the Respondent to use its marks or to apply for or use any domain name incorporating the trademark ISTEGELSIN.
Finally, in addressing the question of registration and use of the disputed domain name in bad faith, the Complainant observes that the Respondent could not ignore the Complainant's well-known trademark. Furthermore, the fact that the disputed domain name is listed for sale for an amount of USD 30,000 and the present passive holding supports a finding of registration and use in bad faith for the intention of selling the disputed domain name. B. Respondent
The Respondent contends that:
- the Complainant's claim on the reputation of the Complainant's trademark is not substantiated with evidence,
- there is no single evidence showing that the Respondent was aware of the Complainant's trademark or its activity,
- the Google search results show that the words "iste gelsin" are used as a common phrase by different entities,
- there is no evidence showing that the Complainant or its predecessors were the owners of the disputed domain name prior to its acquisition by the Respondent through bidding on an auction site on October 16, 2016. According to the WhoIs records, it was not possible to have the information regarding the previous registrant of the disputed domain name at the time of the purchase or well before the purchase as there was a privacy protection on the disputed domain name.
Respondent also requests, based on the evidence presented, that the Panel make a finding of Reverse Domain Name Hijacking. 6. Discussion and Findings A. Identical or Confusingly Similar
Pursuant to paragraph 4(a)(i) of the Policy, a complainant must prove that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights.
The Panel finds that the Complainant satisfies this element by virtue of its registrations before the Turkish Patent and Trademark Office for the trademark ISTEGELSIN.COM.
The Panel further finds that the disputed domain name is identical to the ISTEGELSIN.COM trademark insofar as ISTEGELSIN.COM is incorporated in its entirety in the disputed domain name. See section 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0").
The Panel therefore finds that the Complainant has satisfied paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
The onus is on the Complainant to make out at least a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name and it is then for the Respondent to rebut this case.
The Panel accepts the Complainant's submissions that the Respondent does not appear to be known by the disputed domain name, has not used or made demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or services, is not making a legitimate noncommercial or fair use of the disputed domain name, and has no consent from the Complainant to use its trademark.
The Respondent has filed a Response but did not give any explanation in order to rebut the Complainant's claims as to the second element.
The Respondent only contends that he registered the disputed domain name for a common phrase which is "iste gelsin" in Turkish and submits evidence substantiating such use. Although, the Panel recognizes that the words "iste gelsin" can be considered as a common phrase in Turkish language, the fact that a disputed domain name corresponds to a dictionary word or phrase does not by itself confer any rights or legitimate interests. See section 2.10.1 of the WIPO Overview 3.0.
The Complainant has made out its prima facie case under this element of the Policy and the Respondent has failed to rebut it. Accordingly, the Complaint succeeds in relation to the second element of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states that any of the following circumstances, in particular but without limitation, shall be considered evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that the respondent registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant (the owner of the trade mark or service mark) or to a competitor of that complainant, for valuable consideration in excess of documented out-of-pocket costs directly related to the domain name;
(ii) circumstances indicating that the respondent registered the domain name in order to prevent the owner of the trade mark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct;
(iii) circumstances indicating that the respondent registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) circumstances indicating that the respondent intentionally is using the domain name in an attempt to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of the respondent's website or location or of a product or service on its website or location.
The Complainant relies on the Respondent's registration and use of the disputed domain name based on paragraph 4(b)(i) of the Policy and the alleged reputation of the Complainant's trademark. Moreover, the Complainant relies in its Complaint on the fact that the disputed domain name is offered for sale for USD 30,000 by the Respondent. The Complainant further claims that the Respondent is not actively using the disputed domain name. Lastly, the Complainant states that the Respondent has registered trademark-abusive domain names citing Türkiye Cumhuriyeti Ziraat Bankası Anonim Şirketi v. Murat Imsiyatoglu, 2652cde49e22d00c65787c27e1e9cf85,WIPO Case No. D2016-2604. The Complainant alleges that it has owned the disputed domain name until 2014 but lost the disputed domain name due to its non-renewal.
The Respondent contends that he acquired the disputed domain name for its common meaning and that the Complainant is far from being well-known in Turkey.
The Respondent further claims that he obtained the disputed domain name through an auction and submits evidence that the Complainant (or its predecessors) has never been recorded as the registrant of the disputed domain name.
In the view of the above, the Panel must examine all the circumstances of the case to determine whether the Respondent is acting in bad faith.
According to the section 3.1.1 of the WIPO Overview 3.0, such circumstances include alone or together:
(i) the respondent's likely knowledge of the complainant's rights,
(ii) the distinctiveness of the complainant's mark,
(iii) a pattern of abusive registrations by the respondent,
(iv) website content targeting the complainant's trademark, e.g., through links to the complainant's competitors,
(v) threats to point or actually pointing the domain name to trademark-abusive content,
(vi) threats to "sell to the highest bidder" or otherwise transfer the domain name to a third party,
(vii) failure of a respondent to present a credible evidence-backed rationale for registering the domain name,
(viii) a respondent's request for goods or services in exchange for the domain name,
(ix) a respondent's attempt to force the complainant into an unwanted business arrangement,
(x) a respondent's past conduct or business dealings, or
(xi) a respondent's registration of additional domain names corresponding to the complainant's mark subsequent to being put on notice of its potentially abusive activity.
The Panel notes that the Complainant has not submitted any evidence showing the alleged well-known character or reputation of the trademark ISTEGELSIN.COM. The submission of such evidence was quite critical given the fact that the term "iste gelsin" is a common phrase in Turkish language, which could be translated as "want and it shall come". Moreover, the Complainant failed to submit any evidence proving that the Complainant or its predecessors were the registrant of the disputed domain name at some point in time despite the fact that the Panel specifically requested this information from the Complainant through issuance of a Panel Order.
The Panel notes that in effect the Complainant is requesting the Panel to rule that the disputed domain name was registered in bad faith based on the mere submission that the Respondent is offering the disputed domain name for sale in consideration of a substantial amount and that the Respondent has been named as Respondent in a prior UDRP case. See section 3.1.2 of the WIPO Overview 3.0 in this regard.
The Panel notes with concern that the Respondent has been named as a respondent in at least two previous UDRP transfer decisions. However, the Panel also notes that the words "iste gelsin" are very commonly used by retail operators. This is demonstrated by the fact that while doing online research with the words "iste gelsin", the research brings up a myriad of retail services instead of the Complainant's services. The Panel is thus not persuaded by the Complainant's allegations on the fame and goodwill of the Complainant and its trademark.
Accordingly, considering the conclusory statements of the Complainant (such as the alleged well-known character of the trademark ISTEGELSIN.COM or the lack of evidence showing that the Respondent was aware of the Complainant) unsupported by any convincing evidence, the Panel finds that the Complainant has failed to establish on a balance of probabilities that the Respondent has registered and is using the disputed domain name in bad faith.
The Panel wishes to note here that this decision is based on the present UDRP record submitted to the Panel and is without prejudice to any subsequent action based on additional facts and a more complete record in a court of competent jurisdiction. D. Reverse Domain Name Hijacking
Under paragraph 1 of the Rules, Reverse Domain Name Hijacking is defined as "using the Policy in bad faith to attempt to deprive a registered domain name holder of a domain name". The Respondent seeks a formal finding under paragraph 15(e) of the Rules that the present proceedings constitute Reverse Domain Name Hijacking.
The Panel finds that the circumstances in this case fall short of reverse domain name hijacking, or any other form of bad faith use of the Policy. The Respondent's allegation of reverse domain name hijacking is therefore rejected. 7. Decision
For the foregoing reasons, the Complaint is denied.
Emre Kerim Yardimci
Sole Panelist
Date: November 6, 2017
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