The Complainant is Hacı Ömer Sabancı Holding Anonim Şirketi, Turkey, represented by BTS & Partners, Turkey.
The Respondent is David Baro, Canada. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 15, 2020. On the same day, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On the same day, 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. On May 22, 2020, the Center requested a clarification from the Complainant regarding the requested remedy. The Complainant submitted its amendment to the Complaint on the same day. 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 May 25, 2020. In accordance with the Rules, paragraph 5, the due date for Response was June 14, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 15, 2020. The Center appointed Matthew Kennedy as the sole panelist in this matter on June 19, 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. 4. Factual Background The Complainant is the holding company of an industrial and financial conglomerate established in 1925. “Hacı Ömer Sabancı” was the name of an individual. The Complainant’s corporate group is active in many sectors, in many regions of the world. The Complainant owns multiple trademarks for SABANCI in multiple jurisdictions, including Turkish trademark registration number 170885, registered on April 2, 1996, and determined to be a well-known mark by the Turkish patent office in 2008; Turkish trademark registration number 2015 00400, registered on October 20, 2015; and European Union Trade Mark registration number 1273407, registered on March 18, 2015. These trademark registrations specify goods and services in multiple classes, including financial services, monetary services and banking services in class 36, and they remain current. The Complainant has also registered multiple domain names that incorporate the element “sabanci” including The Respondent is an individual resident in Canada. He uses a privacy service, which prevents his name and contact details from being disclosed in the Registrar’s public WhoIs database. The disputed domain name was registered on October 16, 2019. It formerly resolved to a website in Turkish that displayed a logo including the words “Sabancı Trade Investment” with some text on stock trading, some market quotes for various cryptocurrencies and an online form for Internet users to provide their contact information. At the time of this proceeding, the disputed domain name resolves to a webpage displaying only an error message. 5. Parties’ Contentions A. Complainant The disputed domain name is confusingly similar to the Complainant’s SABANCI mark. “Sabanci” is the distinctive element in the disputed domain name. The Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent was not authorized by the Complainant to use its SABANCI trademarks. The Respondent is neither making a bona fide offering of goods or services nor a legitimate and noncommercial fair use. The evidence shows that the Respondent has been trying to execute fraudulent commercial activities. The disputed domain name was registered and is being used in bad faith. The disputed domain name is used in bad faith to mislead visitors for commercial gain, falsely suggesting an association with the Complainant. The associated website used the Complainant’s trademarks and logo. The Respondent was clearly aware of the Complainant’s existence and wanted to create a risk of confusion and benefit from it. The disputed domain name is used in connection with a possible fraud or phishing activity. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 4(a) of the Policy provides that a complainant must prove each of the following elements: (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. A. Identical or Confusingly Similar Based on the evidence submitted, the Panel finds that the Complainant has rights in the SABANCI mark. The disputed domain name incorporates the SABANCI mark as its initial and only distinctive element. The Panel notes that the disputed domain name includes the Latin “i” rather than the Turkish dotless “ı“ but it does not consider that this difference avoids a finding of confusing similarity between the disputed domain name and the trademark. See Twitter, Inc. v. Ahmet Ozkan,WIPO Case No. D2014-0469. Indeed, the Complainant’s own website address includes the Latin “i”. The disputed domain name also includes the words “trade” and “investment”. As mere dictionary words, these do not serve to distinguish the disputed domain name from the SABANCI mark. See Ansell Healthcare Products Inc. v. Australian Therapeutics Supplies Pty, Ltd.,WIPO Case No. D2001-0110. The disputed domain name also includes a generic Top-Level Domain (“gTLD”) suffix (“.com”). As a mere technical requirement of domain name registration, a gTLD suffix may be disregarded in the comparison between a domain name and a trademark for the purposes of the first element of paragraph 4(a) of the Policy unless it has some impact beyond its technical function, which is not the case here. Therefore, the Panel finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights. The Complainant has satisfied the first element in paragraph 4(a) of the Policy. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy sets out the following circumstances which, without limitation, if found by the Panel, shall demonstrate that a respondent has rights to, or legitimate interests in, a disputed domain name, for the purposes of paragraph 4(a)(ii) of the Policy: (i) before any notice to [the respondent] of the dispute, [the respondent’s] use of, or demonstrable preparations to use, the [disputed] domain name or a name corresponding to the [disputed] domain name in connection with a bona fide offering of goods or services; or (ii) [the respondent] (as an individual, business, or other organization) [has] been commonly known by the [disputed] domain name, even if [the respondent has] acquired no trademark or service mark rights; or (iii) [the respondent is] making a legitimate noncommercial or fair use of the [disputed] domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue. As regards the first circumstance set out above, the disputed domain name formerly resolved to a website offering trade and investment services. The disputed domain name incorporates the Complainant’s SABANCI trademark with no additional element besides dictionary words and a gTLD suffix. The Complainant submits that the Respondent was not authorized by the Complainant to use its SABANCI trademarks. Accordingly, the Panel does not consider that to be a use of the disputed domain name in connection with a bona fide offering of goods or services within the terms of paragraph 4(c)(i) of the Policy. The disputed domain name currently resolves to a webpage displaying an error message. That is not a use in connection with a bona fide offering of goods or services either. As regards the second circumstance, the Registrar’s verification email indicates that the Respondent’s name is “David Baro”, not “Sabanci”. There is no evidence that the Respondent has been commonly known by the disputed domain name within the terms of paragraph 4(c)(ii) of the Policy. As regards the third circumstance, the disputed domain name formerly resolved to a website offering trade and investment services and it now resolves to a website displaying only an error message. Neither use is a legitimate noncommercial or fair use within the terms of paragraph 4(c)(iii) of the Policy. In view of the above circumstances, the Panel considers that the Complainant has made a prima facie case that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent did not rebut that prima facie case because he did not respond to the Complaint. Therefore, based on the record of this proceeding, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant has satisfied the second element in paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy provides that certain circumstances, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith. The fourth circumstance is as follows: “(iv) by using the [disputed] domain name, [the respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the respondent’s] web site 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] web site or location or of a product or service on [the respondent’s] web site or location.” The disputed domain name was registered in 2019, years after the Complainant acquired its registered trademark rights in SABANCI. The disputed domain name incorporates the Complainant’s SABANCI trademark with no addition besides mere dictionary words related to the services offered, and a gTLD suffix. The Complainant is Turkish and has acquired a significant reputation in its SABANCI mark through longstanding and extensive use, including in relation to financial, monetary and banking services. The Respondent’s website was in Turkish and offered services related to those of the Complainant, all of which makes it more likely than not that he was aware of the Complainant at the time that he registered the disputed domain name. The disputed domain name is used to attract Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s SABANCI trademark as to the source, sponsorship, affiliation, or endorsement of the services offered on that website. This use is intentional and for commercial gain. The Panel finds that these facts fall within the terms of paragraph 4(b)(iv) of the Policy. The Panel notes that the use of the disputed domain name has since changed and that it now resolves to a website displaying only an error message. This change in use does not alter the Panel’s conclusion and may itself be an indication of bad faith. Therefore, the Panel finds that the disputed domain name has been registered and is being used in bad faith. The Complainant has satisfied the third element in paragraph 4(a) 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 Matthew Kennedy
Sole Panelist
Date: June 23, 2020
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