The Complainant is İyzi Ödeme ve Elektronik Para Hizmetleri A.Ş. of Istanbul, Turkey, represented by Erdem Kozan, Turkey.
The Respondent is Ali Kaplan / Iyzi Website of Istanbul, Turkey, self-represented. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 6, 2018. On March 6, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 7, 2018, 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. The Center sent an email communication to the Complainant on March 8, 2018 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 March 9, 2018.
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 March 13, 2018. In accordance with the Rules, paragraph 5, the due date for Response was April 2, 2018. According to paragraph 5(b) of the Rules, on the Respondent’s request, the due date for Response was extended until April 6, 2018. The Response was filed with the Center on April 2, 2018. The first amended Response was filed on April 3, 2018 and the second amended Response was filed on April 5, 2018.
The Center appointed Gökhan Gökçe as the sole panelist in this matter on April 17, 2018. 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, İyzi Ödeme ve Elektronik Para Hizmetleri A.Ş., is Turkish payment service provider company, licensed from Banking Regulatory and Supervising Agency (“BDDK”) which provides payments solutions to its at least 13,000 active merchants (e-commerce companies and individuals) from various sectors.
The Complainant has two registered trademarks namely, i) IYZICO which is registered with no. 2014 69079 on January 6, 2016 and ii) IYZI which is registered with no. 2017 74098 on January 3, 2018 before the Turkish Patent and Trademark Institute. “Iyzi” is the Turkish pronunciation of the word “easy”.
Pursuant to the official website of the Complainant, “iyzico was founded by Barbaros Özbuğutu and Tahsin Isın in 2012 in Istanbul with the aim of providing a secure payment management platform to online companies of different sizes operating in different industries.”
The disputed domain name was registered on September 2, 2005.
The Respondent is an individual from Turkey.
The Complainant sent three emails to Respondent to purchase the disputed domain name. These emails were sent on February 13, 18 and March 5, 2018. However, the Respondent rejected these offers of the Complainant.
The Panel visited the disputed domain name on April 30, 2018, and observed that the disputed domain name was inactive. However, previously there was a link to direct users to its Twitter page which is an active page from 2009 and there is a search engine about domain names. 5. Parties’ Contentions A. Complainant
The Complainant requests the transfer of the disputed domain name.
The Complainant believes the disputed domain name is confusingly similar to the Complainant’s IYZI trademark.
Furthermore, the Complainant argues that the Respondent has no rights or legitimate interest in respect of the disputed domain name and has registered and used the disputed domain name in bad faith.
The Complainant argues that the Respondent has no association with the Complainant and the Respondent has never been commonly known by the disputed domain name. And also states that the Respondent has not got any service or good called “iyzi” or known as “iyzi”. The Complainant also states that it cannot be seen that the Respondent is preparing to use it as you can see he just published an offer for sale for the disputed domain name. B. Respondent
The Respondent requests the denial of the Complaint.
The Respondent refuses any trademark infringement and refers to the “first come, first served” principle. In this regard, the Respondent points out that the disputed domain name was registered 12 years prior to the Complainant’s trademark registration. The Respondent states that he is a software developer and contend to be specialized in the registration of inheritably valuable domain names and the development of websites thereon at the beginning of the 2000’s and acquires short “.com” domain names based on their expected value on the secondary market.
The Respondent also argues the Complainant is guilty of Reverse Domain Name Hijacking (“RDNH”).
The Respondent also argues that the Complainant has failed to disclose these previous attempts to purchase disputed domain name.
The Respondent also states that he has not used the disputed domain name in connection with the goods marketed or serviced by the Complainant, and the lack of advertisements targeting goods or services offered by the Complainant suggests that the Respondent did not intend to confuse Internet users into thinking that the Complainant was somehow associated with the Respondent’s website. 6. Discussion and Findings
Paragraph 4(a) of the Policy provides that in order to divest the Respondent of the disputed domain name, the Complainant must demonstrate each of the following:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark 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 15(a) of the Rules directs the Panel to decide the complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable. A. Identical or Confusingly Similar
It is not in dispute that the Complainant has acquired rights in the mark IYZI as the trademark owner of the registered trademarks for that term in Turkey from 2016.
The disputed domain name is identical to the Complainant’s trademark, disregarding the generic Top-Level Domain (“gTLD”). The Panel therefore finds that the Complainant has established the first element of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests
It is unnecessary to consider this element in light of the Panel’s conclusion below under the third element. C. Registered and Used in Bad Faith
According to paragraph 4(a)(iii) of the Policy, the Complainant must demonstrate the conjunctive requirement that the Respondent registered and used the disputed domain name in bad faith. The Panel’s view is that the Complainant has not sufficiently proved bad faith registration by the Respondent.
The disputed domain name was registered by the Respondent in September 2005, almost 12 years prior to the Complainant’s trademark registration application and nearly seven years prior to the trademark’s first use by the Complainant at the first launching assembly for “iyzi payments”. Hence, at the time of the registration of the disputed domain name, the Respondent could not have contemplated the Complainant’s non-existing rights. The Panel adheres to the consensus view of panelists in WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 3.8.1.
There are situations, which may justify a different assessment, in particular “when the Respondent is clearly aware of the Complainant, and it is clear that the aim of the registration was to take advantage of the confusion between the domain name and any potential complainant rights”. WIPO Overview 3.0, section 3.8.2. In the present case, however, the Complainant neither had a trademark nor had started any activity to use the mark IYZI at the time of the disputed domain name registration. There is no indication in the case file that the Complainant had at that time even conceived of the idea to use the mark IYZI.
Further, the Complainant has provided no evidence to suggest that its brand “iyzi” or either of its IYZI trademarks is famous, or that the Complainant was even operating in 2005, at the time the disputed domain name was registered. In fact, according to the Complainant’s website, this brand was created in approximately late 2012. Given this, there is no basis on which the Panel may find that the disputed domain name was registered in bad faith.
Additionally, Respondent has not used the disputed domain name in connection with the goods marketed or serviced by the Complainant, and the lack of advertisements targeting goods or services offered by the Complainant suggests that the Respondent did not intend to confuse Internet users into thinking that the Complainant was somehow associated with the Respondent’s website.
Finally, the Complainant also failed to put in evidence of any subsequent change of ownership in the disputed domain name registration that might be assessed as a fresh registration for the purpose of the Policy.
Overall, the Panel finds that it has not been proven that the disputed domain name was registered in bad faith and that the prerequisite of bad faith in paragraph 4(a)(iii) of the Policy is not fulfilled. D. Reverse Domain Name Hijacking
In the Panel’s view, Respondent’s reverse domain name hijacking allegations are not made out. Although Complainant has not succeeded in its Complaint, there is insufficient on the record to suggest that its conduct amounted to reverse domain name hijacking. 7. Decision
For the foregoing reasons, the Complaint is denied.
Gökhan Gökçe
Sole Panelist
Date: May 23, 2018
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