The Complainant is Mustafa Göğün Saygın, Turkey, self‑represented.
The Respondent is \u0420\u0438\u043c\u043c\u0430 \u041a\u0440\u043e\u043f\u0430\u043d\u0438\u043d\u [Римма Кропанин\u], Russian Federation. 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 June 14, 2019. On June 14, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 14, 2019, 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 June 21, 2019. In accordance with the Rules, paragraph 5, the due date for Response was July 11, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 12, 2019.
The Center appointed Evan D. Brown as the sole panelist in this matter on July 24, 2019. 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 well-known surgeon working in Turkey. He uses an abbreviated version of his name – Mustafa Saygın – to market and promote his services. The Complainant has more than two decades of professional experience and in late 2018 launched his own medical clinic in Istanbul. The disputed domain name – comprised of the Complainant’s first and last name - was registered on November 16, 2018. The Respondent has published a website containing pornographic material at the disputed domain name, together with advertisements and other apparent commercial material. The Complainant owned the disputed domain name at some point in the past, but inadvertently let the registration lapse, after which the Respondent acquired ownership of the disputed domain name. 5. Parties’ Contentions A. Complainant
The Complainant contends that the disputed domain name is identical or confusingly similar to the Complainant’s name – which the Complainant claims to be protected as a registered mark and also as an unregistered mark; that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
To succeed, the Complainant must demonstrate that all of the elements listed in paragraph 4(a) of the Policy have been satisfied:
(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.
The Panel finds that all three of these elements have been met in this case. A. Identical or Confusingly Similar (i) Confusing Similarity
There is no question that the disputed domain name (apart from the here irrelevant generic Top-Level Domain “.com”) is confusingly similar to the Complainant’s personal name “Mustafa Saygın”, in which the Complainant purports to enjoy registered and unregistered trademarks rights. The issue for the Panel is to determine whether or not the Complainant has demonstrated the existence of those rights.
Before moving to discussion of those rights, however, for the sake of completeness, the Panel notes that the disputed domain name contains the character “i”, whereas the Complainant’s name, rendered in Turkish characters, contains the letter “ı”. In the Panel’s view, this technical distinction does not affect the finding of confusing similarity in this case. See, e.g., (Twitter, Inc. v. Ahmet Ozkan,WIPO Case No. D2014-0469, where was confusingly similar to TWITTER). (ii) Trademark Rights
The Complainant asserts that he owns a registration for the word mark version of his name, Mustafa Saygin, with the Turkish Patent and Trademark Office. But the information the Complainant provided purporting to evidence such registration, as well as information the Panel obtained from conducting an online search of Turkish trademark applications and registrations (something that the Panel is entitled to do), reveals an issue. From the available record, it appears that the Complainant merely owns a trademark application, and not a registration for the mark. For this reason, the Panel does not consider the Complainant’s assertions concerning registration of his name as a trademark. But that does not end the inquiry, as the Complainant has also asserted ownership of unregistered trademark rights.
In situations where a personal name unregistered as a trademark is being used for trade or commerce, a complainant may be able to establish unregistered trademark rights in that name. David Michael Bautista, Jr. v. Quantec LLC / Whois Privacy Services Pty Ltd / Lisa Katz, Domain Protection LLC,WIPO Case No. D2016-0397 (complainant developed sufficient goodwill in his name to give rise to common law trademark rights); Julia Fiona Roberts v. Russell Boyd,WIPO Case No. D2000-0210 (“registration of her name as a registered trademark or service mark was not necessary and […] the name 'Julia Roberts’ has sufficient secondary association with Complainant that common law trademark rights do exist under United States trademark law”). To establish unregistered trademark rights for purposes of the UDRP, the Complainant must show that its mark has become a distinctive identifier that consumers associate with the Complainant’s services. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), paragraph 1.3. Relevant evidence demonstrating such acquired distinctiveness (also referred to as secondary meaning) includes a range of factors such as (i) the duration and nature of use of the mark, (ii) the amount of sales under the mark, (iii) the nature and extent of advertising using the mark, (iv) the degree of actual public (e.g., consumer, industry, media) recognition, and (v) consumer surveys.
In this case, the Complainant has made a number of self-serving and unsubstantiated claims regarding the use of his name as a trademark, but has also submitted the following evidence, which the Panel finds persuasive to establish relevant secondary meaning of the Complainant’s personal name:
- The Complainant’s Facebook page, at which the Complainant uses his name to promote his medical services, and which has been in operation since August 24, 2018 (prior to the registration of the disputed domain name). The page includes patient reviews.
- The Complainant’s Instagram page, at which the Complainant uses his name to promote his medical services, and which has been in operation since at least as early as July 24, 2018 (prior to the registration of the disputed domain name).
- Several online news articles from the past decade referring to the Complainant by name, and discussing his medical services.
- A number of interviews with the Complainant on YouTube, from the past decade, with thousands of views.
Based on the evidence put forward, the Panel is satisfied the Complainant has established relevant unregistered trademark rights, for the purposes of the UDRP, in his name MUSTAFA SAYGIN.
The Complainant has accordingly met its burden under the first UDRP element. B. Rights or Legitimate Interests
The Complainant will be successful under this element of the Policy if it makes a prima facie showing that the Respondent lacks rights or legitimate interests in the disputed domain name, and if that prima facie showing remains unrebutted by the Respondent. Though the Complainant (who is not represented by counsel) did not neatly argue points under this heading of the UDRP, the Panel can extract the following assertions from the record as a whole:
- the disputed domain name has been used as a pornographic website, such use not appearing to be a bona fide offering of goods and services under the disputed domain name; and
- the website at the disputed domain name appears to be commercial in nature, and therefore not qualified to be considered as a legitimate noncommercial or fair use of the disputed domain name.
The Panel will accept the above evidence as establishing the Complainant’s prima facie case. The Respondent has not responded, and therefore has not overcome the Complainant’s prima facie showing.
Accordingly, the Complainant has prevailed on this second UDRP element. C. Registered and Used in Bad Faith
The Panel finds it plausible that the Respondent took the opportunity to registered the disputed domain name after the Complainant failed to renew it. The Panel will consider, along with this inference, that the Respondent intentionally sought to trade on the well-known name of the Complainant when it registered the disputed domain name. This supports a finding that the disputed domain name was registered in bad faith.
The Respondent’s bad faith use of the disputed domain name is further evidenced by the fact that the Respondent is using the disputed domain name to display adult-oriented material. See Victoria Beckham v. Viktor Pavlenko,WIPO Case No. D2015-0840 (“A user who seeks to access the web site(s) to which the disputed domain name resolves would expect to be taken to a web site at which Complainant’s goods are offered for sale. Instead, the user is taken to various web sites at which adult and/or pornographic services are offered. This is a perfect example of registration and use in bad faith as described in paragraph 4(b)(iv) of the Policy”).
Accordingly, the Complainant has prevailed on this third UDRP element. 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.
Evan D. Brown
Sole Panelist
Date: August 7, 2019
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