The Complainant is Hadise Açıkgöz, Turkey, represented by BTS & Partners, Turkey.
The Respondent is Hulya Acikgoz, Belgium, self-represented. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 2, 2019. On December 2, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On December 9, 2019, 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 December 11, 2019, 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 amendment to the Complaint on December 17, 2019. The Center verified that the Complaint together with the amendment to 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 December 18, 2019. In accordance with the Rules, paragraph 5, the due date for Response was January 7, 2020. The Center received several email communications from the Respondent on December 10 and 18, 2019, and on January 8, 2020, however, no formal Response was submitted by the Respondent. Accordingly, the Center notified the Parties that it was proceeding to the panel appointment stage on January 8, 2020. The Center appointed Nick J. Gardner as the sole panelist in this matter on January 15, 2020. 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 January 23, 2020, the Panel issued a Procedural Order as follows: “It appears to the Panel that the Disputed Domain Name was registered by the Respondent when [she] was acting for the Complainant as [her] manager. It is not at present clear to the Panel why the Complainant alleges that at the time of registration this was a registration in bad faith. The Panel directs the Complainant to provide a further filing on or before January 30, 2019 which explains why it is alleged the Disputed Domain Names was registered in bad faith. Such a filing should make clear (i) whether or not at the time of registration the Complainant agreed to or was aware that the Disputed Domain Name had been registered in the Respondent’s name; and (ii) whether the Complainant alleges that there were any applicable provisions (contractual or otherwise) which meant that the Respondent should in fact have registered the Disputed Domain Name in the Complainant’s own name and if so identify the provisions concerned. The Respondent shall if [she] wishes be entitled to file a statement in response to the Complainant’s filing, such statement to be provided within seven days of the date of the Complainant’s filing”. Pursuant to this Order, both the Complainant and the Respondent submitted further email filings which the Panel will admit. The Complainant by a further email commented on the Respondent’s further filing and the Respondent in turn by a further email commented upon what the Complainant had said. The Panel will, in its discretion admit all this material as it is all relevant to the Panel’s Decision. The Panel will also in its discretion treat the Respondent’s earlier email communications with the Center as her Response. The Respondent in her further filing stated she was the Complainant’s sister which was a fact that had not previously been stated. The Center at the Panel’s request invited the Complainant to confirm whether this was true. The Complainant’s representatives confirmed it was true. On February 11, 2020 the Center received a further filing from the Respondent. Having reviewed this filing the Panel declines to admit it primarily because it does not add anything new to the record. 4. Factual Background Although the facts have emerged in a rather confused manner (see above) they are ultimately straightforward. The Complainant is a recording artist and entertainer. She was born in Belgium to a family of Turkish origin. Her career dates back to 2003 and the filed evidence establishes she has been extremely successful and is well known, in Turkey and elsewhere. She is generally known simply as “Hadise”. The Complainant is also the owner of the Turkish trademark HADISE No. 2017 33908, registered on December 15, 2017. The Disputed Domain Name was registered on November 3, 2004, by the Respondent who is the Complainant’s sister and who was at that time the Complainant’s manager. It has since that date been linked to a website which promoted the Complainant. It appears that at some stage the Complainant and the Respondent fell out and since whenever that was the Disputed Domain Name no longer links to such a website but instead is linked to a page which indicates it is for sale. 5. Parties’ Contentions A. Complainant The Complainant says that the Disputed Domain Name is identical to her name “Hadise” and says she has various trademark rights in respect of her name. The Complainant says that the Respondent has no rights or legitimate interests in the term “Hadise”. She says that “After a business disagreement, the previous manager refused to transfer the domain to the Complainant in order to hurt the Complainant’s business and profit by selling the website which can be seen when entering into the page”. The Complainant says that the Respondent’s registration and use of the Disputed Domain Name is in bad faith. She puts her case this way: “The domain name was initially registered for the Complainant’s use for her career and business and it was being exclusively used for this purpose until the end of the business deal of the Complainant and her previous manager who was managing the website in the domain for the Complainant. Previous images of the website which proves that it was being used for the Complainant’s career are in the Annex-7. Currently, the website only contains a banner stating that the domain is for sale and directs users to [...]@gmail.com therefore it is clear that the domain name was registered or acquired primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the owner of the trademark or service mark of the Complainant or to a competitor of the Complainant, for valuable consideration in excess of the Respondent’s out-of-pocket costs directly related to the domain name. See the Annex-8 for the email thread that demands USD 30.000 for the transfer of the domain. Due to the nature of the incident, the domain name was clearly registered in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name since its registration, the domain name has always been clearly and exclusively used for the Complainant’s own works and brands under her name “Hadise”. Furthermore, the Complainant’s other social media pages such as Instagram and Facebook were also held in bad faith by her old manager however, these issues were resolved over related social media providers. Lastly, the passive nature of the domain name proves that its being used under bad faith similarly to WIPO precedent decision (Telstra Corporation Limited v. Nuclear Marshmallows Karar No D2000-0003, Banco Bradesco S/A v. Erick Reis Karar No D2013-1065) therefore the Respondent's actions provides all conditions for bad faith accepted by WIPO”. Following the issuing of the Procedural Order (see above) the Complainant in its email filing of January 29, 2020 stated as follows: “Furthermore, the Respondent currently has no fair use for the domain and therefore, the Respondent is trying to sell the disputed domain to the Complainant for USD30.000 which is much more than the out-of-pocket costs to register and maintain a domain name” and “the Respondent also failed to provide any information as to any circumstances that may justify retaining ownership of the name. Even though the initial registration was not in bad faith it became bad faith in accordance with the Policy”. “In her response, the Respondent claims that the Complainant owes her USD30.000 and she will be transferring the domain once the debt has been paid. However, the Respondent also failed to provide any debt to the Panel. Even if there was a debt arising from the contractual relationship, this wouldn’t justify the Respondent’s holding the domain unfairly and hurt the Complainant’s business and career. Although we strongly believe that it was always the intention of the Respondent to profit from the domain therefore her registering the account was in bad faith from the beginning. There are precedent WIPO decisions stating that a registration in good faith can become bad faith as precedented in theWIPO Case No. D2001-0373, “….As to registration in good faith, can one registration originally made in good faith subsequently become one made in bad faith?... Since the Respondent’s Danish distributorship for SUNMAXX products has ceased - indeed, it came to an end in late 1999 / early 2000 - there can be no good faith reason for the Respondent to retain the domain name…In the circumstances, the Panel finds that the domain name in issue was registered and is being used in bad faith by the Respondent and that, consequently, the Complainant succeeds in meeting the requirements of paragraph 4a(iii) of the Policy…” similarly, the contractual relationship between the Complainant and Respondent has ended. The Respondent, who managed the domain as the agent of the Complainant and solely for Complainant’s business has no reason to retain the domain name. Considering all the facts we stated in our original application and statements above, we are in the opinion that the Respondent is holding the domain in bad faith in accordance with the WIPO Policy and Precedents and therefore we kindly ask the domain name to be transferred to the Complainant” B. Respondent The Respondent says that she registered the Disputed Domain Name in her capacity as the Complainant’s manager. She says she purchased it from an unconnected third party for USD 30,000. She says that there is now a dispute between her and her sister but she is willing to transfer the Disputed Domain Name if she is repaid the money she spent in acquiring it. The Respondent’s case is set out in detail in her email filing of January 29, 2020, which commences as follows: “I have read the e-mail below. These accusations are false. I would love to explain myself and the situation around hadise.com. Let’s start by saying that Hadise and I are sisters. Since 2009 I am the manager of the Artist Hadise globally exclusive. We still have an ongoing contract. In 2012 we found out that hadise.com was for sale through noktadomains.com.I approached the seller. The bidding first started at 39.900USD. Than we agreed on 30.000 USD. Through my bank account HSBC Istanbul, I paid for this amount. Because I am the one that was paying... The contract and the transfer of this domain happened to my name. Hadise agreed to this off course. I was going to handle the whole deal and she would pay me for the cost. Until this day we have not solved this issue. In the mail below Mr. Tugrul says that I have bad intentions. How can I have bad intentions? Have I used the website for bad purposes? Have I done something wrong with the website that has given Hadise a bad name? I told you that there are buyers who are ready to pay more than 60.000 USD for hadise.com. If I had bad intentions... Do you think that I would have not sold it till now? My legal team has been repeatedly contacting Hadise’s legal team to pay me her debt of 30.000 USD.If I had bad intentions, I would have sold it to her more than the price I paid for. I don’t have bad intentions. I just want her to pay the amount of 30.000 USD and receive the transaction”. The email continues at some length but essentially repeats the same points. Annexed to the filing are various documents which appear to confirm that USD 30,000 was paid by the Respondent to a third party in order to obtain the Disputed Domain Name. 6. Discussion and Findings To succeed, in accordance with paragraph 4(a) of the Policy, the Complainant must satisfy the Panel that: (i) the Disputed Domain Name is identical with 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; (iii) the Disputed Domain Name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Complainant has rights in the HADISE trademark. There is no dispute that this is the case so the Panel does not need to examine this issue in detail. It is well established that the generic Top-Level Domain (“gTLD”), in this case “.com”, does not affect the Disputed Domain Name for the purpose of determining whether it is identical or confusingly similar. See, for example, Rollerblade, Inc. v. Chris McCrady,WIPO Case No. D2000-0429. Accordingly the Panel finds that the Disputed Domain Name is identical to the Complainant’s trademark and hence the first condition of paragraph 4(a) of the Policy has been fulfilled. B. Rights or Legitimate Interests In view of the Panel’s findings in relation to bad faith (see below) the Panel does not need to determine this issue. C. Registered and Used in Bad Faith It is well established that the requirements set out in paragraph 4(a)(iii) of the Policy are conjunctive. The Complainant has to show both that the Disputed Domain Name was registered in bad faith and that it is being used in good faith. For present purposes, the Panel considers the difficulty with the Complainant’s case is in showing that the registration of the Disputed Domain Name was in bad faith. The Complainant, in her Complaint, says as follows: “The domain name was initially registered for the Complainant’s use for her career and business and it was being exclusively used for this purpose until the end of the business deal of the Complainant and her previous manager who was managing the website in the domain for the Complainant”. It seems clear that the Respondent acting as the Complainant’s manager undertook this registration in order to help promote the Complainant’s career and presumably with her knowledge and consent. It was not clear to the Panel on reading the Complaint why the Complainant says this factual situation amounts to bad faith registration. Accordingly, the Panel issued a Procedural Order directed at this issue (see above). The Complainant then explained its case as follows: “The [Respondent] registered the domain name in the name of the Complainant by being fully aware of this fact and now it has been revealed that the sole purpose of this registration was to extort the Complainant in the future. In any other case the Respondent would’ve given up the username and password information after the end of the agent deal”. In other words the Complainant says that the Respondent’s refusal to transfer the Disputed Domain Name, now that the Complainant and Respondent have fallen out reveal that she always intended to “extort” the Complainant. In making this argument the Complainant refers to Kenneth Hill v. Brandon Friesen, Arbor Records Ltd.,WIPO Case No. D2015-2189 and quotes the panel’s decision in that case as follows: “The Panel finds that the Respondent was aware of the Complainant’s rights in the mark JUKASA when it registered the disputed domain name on June 6, 2008, and that the Respondent was in fact instructed by the Complainant to register the disputed domain name on behalf of the Complainant, and in the Complainant’s name. In the absence of any evidence to the contrary, the Panel concludes that the Respondent acted wrongfully in registering the disputed domain name in its own name, contrary to the Complainant’s instructions. The Panel further concludes that the Respondent is now attempting to interfere with the Complainant’s business by refusing to correct the ownership of the disputed domain name. In all the circumstances, the Panel finds that the Respondent’s conduct in seeking payment in the amount of CAD 100,000 for the disputed domain name, so many years after the fact, is opportunistic and unfounded, and it constitutes further evidence of bad faith under the Policy.” InWIPO Case No. D2015-2189 (above) the Panel however found that the a contractor had been required to register the domain name in question in the name of the Complainant and had not done so and had wrongly registered the domain name in its own name. The present case is however different. The Respondent is the Complainant’s sister and was acting in her capacity as the Complainant’s manager. The evidence (see above) also establishes that the Respondent paid USD 30,000 to an unconnected third party to obtain the Disputed Domain Name. Despite the terms of the Procedural Order (above) the Complainant has not produced any evidence to suggest that at the time given this background the Respondent was wrong to register the Disputed Domain Name in her own name. In fact, the Complainant appears to accept the original registration was in good faith – the Complainant says “Even though the initial registration was not in bad faith it became bad faith in accordance with the Policy”. The Complainant’s argument appears to be that a good faith registration can retrospectively be rendered bad faith by subsequent conduct. The Complainant refers to UVA Solar GmbH & Co K.G. .v. Mads Kragh,WIPO Case No. D2001-0373. This was a case where an authorised distributorship had come to an end but the Respondent (the Complainant’s former distributor) refused to transfer the domain name which it had registered in its capacity as distributor. The panel found the Respondent’s actions were in breach of its contractual obligations. The panel concluded that “In the circumstances, the Panel finds that registration of a domain name can lose its bona fides if the registrant subsequently breaches one of the terms upon which he was authorized to register it”. The present Panel respectfully disagrees with that analysis – a registration which was at the time of the registration made in good faith cannot retrospectively be converted to bad faith by subsequent events. Accordingly, in the present case the Panel is not satisfied the Complainant has established that the Disputed Domain Name has been registered in bad faith or that the third condition of paragraph 4(a) of the Policy has been fulfilled. The Panel does not consider relevant that the various cases the Complainant has cited as to passive holding of a well known name. The present case concerns a domain name registered in the context of a contractual/business relationship between the parties, not the speculative registration of an unconnected party’s trademark. More generally, this case is clearly part of a family/business dispute between the Complainant and her ex‑manager/sister. There are issues as to whether the applicable contractual relationship between them is subsisting and what its terms are. There is also a claim by the Complainant that she has already repaid the Respondent the USD 30,000 she paid to acquire the Disputed Domain Name. These are not issues this Panel can determine. The Policy does not contemplate this Panel serving as a tribunal of general jurisdiction over any and all disputes which are somehow related to domain names. This Panel finds that the issues raised in this proceeding are outside the scope of proceedings under the Policy and are properly decided by traditional (e.g., appropriate judicial) means. Therefore, the Complaint should also be dismissed for this reason. See, e.g., Clinomics Biosciences, Inc. v. Simplicity Software, Inc.,WIPO Case No. D2001-0823. 7. Reverse Domain Name Hijacking The circumstances of this case have led the Panel to consider whether the filing of the Complaint constitutes “using the Policy in bad faith to attempt to deprive a registered domain name holder of a domain name” – see the Rules, paragraph 1, definition of Reverse Domain Name Hijacking (“RDNH”). Paragraph 15(e) of the Rules provides that if after considering the submissions the panel finds that the complaint was brought in bad faith, for example in an attempt at RDNH, or was brought primarily to harass the domain name holder, the panel shall declare in its decision that the complaint was brought in bad faith and constitutes an abuse of the administrative proceeding. The Rules, paragraph 15(e), call for this analysis even when the respondent has not expressly requested a finding of abuse – see Timbermate Products Pty Ltd v. Domains by Proxy, LLC / Barry Gork,WIPO Case No. D2013-1603. As set out in the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) section 4.16, reasons articulated by panels for finding RDNH include: “(i) facts which demonstrate that the complainant knew it could not succeed as to any of the required three elements – such as the complainant’s lack of relevant trademark rights, clear knowledge of respondent rights or legitimate interests, or clear knowledge of a lack of respondent bad faith (such as registration of the disputed domain name well before the complainant acquired trademark rights, (ii) facts which demonstrate that the complainant clearly ought to have known it could not succeed under any fair interpretation of facts reasonably available prior to the filing of the complaint, including relevant facts on the website at the disputed domain name or readily available public sources such as the WhoIs database, (iii) unreasonably ignoring established Policy precedent notably as captured in this WIPO Overview – except in limited circumstances which prima facie justify advancing an alternative legal argument, (iv) the provision of false evidence, or otherwise attempting to mislead the panel, (v) the provision of intentionally incomplete material evidence – often clarified by the respondent, (vi) the complainant’s failure to disclose that a case is a UDRP refiling, (vii) filing the complaint after an unsuccessful attempt to acquire the disputed domain name from the respondent without a plausible legal basis, (viii) basing a complaint on only the barest of allegations without any supporting evidence”. The Panel, having considered this issue, on balance declines to make a finding of RDNH. It considers the Complaint as originally filed was seriously deficient in not properly explaining the background to the case, the fact that the Respondent was the Complainant’s sister and had herself funded the purchase of the Disputed Domain Name from a third party for a substantial sum. However, the Panel is not in a position to determine whether or not the Complainant’s case that it has repaid this sum is correct. In these circumstances, the Panel considers that the sanction of a finding of RDNH is inappropriate as further determination of the merits of each party’s position is more appropriately determined in the context of judicial proceedings. 8. Decision For the foregoing reasons, the Complaint is denied. Nick J. Gardner
Sole Panelist
Date: February 12, 2020
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