The Complainant is Yeni Mağazacilik Anonim Şirketi, Turkey, represented by S&G Legal Consultancy, Turkey.
The Respondent is Registration Private, Domains By Proxy, LLC, United States of America / Tahir Saglam, Turkey. 2. The Domain Name and Registrar
The disputed domain name The Complaint was initially filed for two domain names with the WIPO Arbitration and Mediation Center (the “Center”) on January 7, 2021. On January 7, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On January 8, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on January 18, 2021, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to amend the Complaint adding the Registrar-disclosed registrants as formal Respondents and provide relevant arguments or evidence demonstrating that all named Respondents are, in fact, the same entity and/or that all domain names are under common control; or file a separate complaint. The Complainant filed an amended Complaint on January 22, 2021, removing one of the domain names from the dispute. 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 January 26, 2021. In accordance with the Rules, paragraph 5, the due date for Response was February 15, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 17, 2021. The Center appointed Dilek Ustun Ekdial as the sole panelist in this matter on February 25, 2021. 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 Yeni Mağazacılık Anonim Şirketi, one of the leading super market chains in Turkey. The Complainant owns trademark registration for the trademark A101 with registration number 2008 67187, registered on November 23, 2009. The disputed domain name The Complainant contends that it has the requisite rights in its registered trademark A101 and that the Domain Name is identical or confusingly similar to that trademark. The Domain Name comprises the Complainant’s A101 trademark as its leading element, followed by the word “kampanyalar”, i.e., English for “companies”, under the generic Top-Level Domain (“gTLD”) “.com”. The Complainant submits that the Respondent has no rights or legitimate interests in respect of the Domain Name as it is unable to invoke any of the circumstances set out in paragraph 4(c) of the Policy. The Respondent is not known by the Domain Name, nor has it been licensed or otherwise allowed to make any use of the Complainant’s trademark. Prior to notice of this dispute, the Respondent cannot assert it was using the Domain Name in connection with a bona fide offering of goods nor can the Respondent assert it has made or is currently making a legitimate noncommercial or fair use of the Domain Names without intent for commercial gain. Moreover, given the renowned popularity of the Complainant’s trademark, it is impossible to conceive of any use by the Respondent that would be legitimate. The Complainant asserts that the Domain Name is registered and are being used in bad faith. According to the Complainant, given the Complainant’s renown and goodwill in Turkey and the Respondent’s identity; it would be inconceivable for the Respondent to argue that he did not have knowledge of the Complainant’s A101 trademark at the time of registration of the Domain Name in 2020. The Complainant adds that, the Respondent is not making any apparent substantive use of the Domain Name and that the non-use of a domain name would not prevent a finding of bad faith under the doctrine of passive holding. Lastly, the Complainant stated that the Respondent appears to have used privacy service in bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 15(a) of the Rules requires the Panel to decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. Under paragraph 4(a) of the Policy, the Complainant bears the burden of showing: (i) that the Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and (ii) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) that the Domain Name has been registered and are being used in bad faith. A. Identical or Confusingly Similar The Domain Name contains the Complainant’s trademark A101 with the term “kampanyalar” the addition of which does not prevent a finding of confusing similarity between the Domain Name and the Complainant’s trademark. See Section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). The gTLD “.com” generally is not taken into consideration when examining the confusing similarity between the Complainant’s trademark and the Domain Name. Therefore, the Panel finds that the Domain Name is confusingly similar to the trademark A101 in which the Complainant has rights, satisfying the condition of the Policy, paragraph 4(a)(i). B. Rights or Legitimate Interests The Respondent has not provided any evidence of the circumstances specified in paragraph 4(c) of the Policy, or any other circumstances giving rise to a right or legitimate interest in the Domain Name. It is clear that the Respondent has not demonstrated any bona fide offering of goods and services by using the Domain Name. Nor has the Respondent shown that it has been commonly known by the Domain Name. The Complainant also showed, inter alia, that the Respondent has neither a license nor any other permission to use the Complainant’s trademark in the Domain Name. The Panel finds that the Complainant has made a prima facie case that the Respondent lacks rights or legitimate interests, and the Respondent has failed to demonstrate such rights or legitimate interests. Therefore, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name. C. Registered and Used in Bad Faith The Panel is of the opinion that when the Respondent registered the Domain Name it knew that A101 was the trademark of the Complainant and registered the Domain Name to take advantage of the trademark; accordingly the Panel finds that the Respondent registered the Domain Name in bad faith. As regards the use in bad faith of the Domain Name, the Panel considers that using the Domain Name to resolve to a hosting parking page displaying links that compete with the services offered under the Complainant’s mark supports a finding of bad faith. There is no suggestion that the Respondent had any intention of legitimate use, that it enjoys a legitimate connection to the Domain Name, or that there is conceivable good faith use for the Domain Name. After examining all circumstances surrounding the registration and use of the Domain Name, the Panel finds that the Respondent registered and is using the Domain Name in bad faith. Accordingly, the Panel finds that the Complainant has satisfied the third element 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 Dilek Ustun Ekdial
Sole Panelist
Date: March 16, 2021
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