The Complainant is SAP SE, Germany, represented by K&G Law LLC, United States of America.
The Respondent is Domain Admin, Privatewhois biz, Turkey / Sap Akademi and Rıdvan Akgül, Turkey.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 24, 2021. On August 25, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 26, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrants 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 August 31, 2021 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 September 8, 2021.
The Center sent an email communication in English and Turkish to the parties on August 31, 2021 regarding the language of the proceeding, as the Complaint has been submitted in English and the language of the registration agreement for the disputed domain name is Turkish. The Complainant sent an email to the Center requesting English to be the language of the proceeding on September 3, 2021. The Respondents did not comment on the language of the proceeding.
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 Respondents of the Complaint, and the proceedings commenced on September 10, 2021. In accordance with the Rules, paragraph 5, the due date for Response was September 30, 2021. The Respondents did not submit any response. Accordingly, the Center notified the Respondents’ default on October 1, 2021.
The Center appointed Gökhan Gökçe as the sole panelist in this matter on October 7, 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 BackgroundThe Complainant is a company founded in 1972 in Germany that has become a market leader in end-to-end enterprise software, applications, analytics, intelligent technologies, and experience management, and training relating to all these offerings. The Complainant employs 103,000 people and pursuant to Annex D of the Complaint, The Complainant is a top cloud company with over 230 million users.
The Complainant owns numerous trademark registrations for SAP in jurisdictions throughout the world, including in Turkey where the Respondents are based. Such trademark registrations include but are not limited to the following:
- Turkish Trademark No. 165120, SAP, registered on July 26, 1996;
- Turkish Trademark No. 99 016643, , registered on September 29, 2000;
- Turkish Trademark No. 2000 02509, SAP TV, registered on July 4, 2001;
- European Union Trademark No. 001270693, SAP, registered on July 9, 2002;
- Turkish Trademark No. 2011 97242, SAP HANA, registered on January 24, 2013;
- Turkish Trademark No. 2015 73026, SAP BUSINESS ONE, registered on June 27, 2016.
Pursuant to the Annex E of the Complaint, the SAP trademark is a well-known international brand, most recently ranked at Number 18 among the world’s brands in Interbrand’s Best Global Brands of 2020.
The Complainant has owned and operated its main website “www.sap.com” since its registration in 1995 and this website also contains training services in relation to software and coding.
The Respondents are from Turkey. The disputed domain name
The Complainant requests the transfer of the disputed domain name.
The Complainant is of the opinion that the disputed domain name fully incorporates the Complainant’s well-known trade name and registered trademark SAP, a fact that is sufficient to establish that the disputed domain name is confusingly similar to the SAP trademarks.
The Complainant is of the opinion that the Respondents have no legitimate interests in or legitimate, bona fide business purpose for using. The Respondents have no trademark rights or any other rights in the SAP trademark, nor has it been authorized or licensed by the Complainant to use this trademark. The Complainant also states that the disputed domain name displays SAP’s registered logo without permission throughout its website.
Lastly, the Complainant argues that the Respondents have registered and used the disputed domain name in bad faith given that the Respondents were likely aware of the Complainant’s rights in the SAP trademark when the Respondents registered and started using the disputed domain name based on the SAP mark to provide SAP online training courses. The Complainant also maintains that the Respondents’ bad faith is established by the fact that the disputed domain name is trading on SAP’s goodwill to attract users to the Respondents’ website and to the Respondents’ unauthorized SAP certification courses.
B. RespondentsThe Respondents did not reply to the Complainant’s contentions.
6. Discussion and Findings 6.1. Procedural Issue: Language of ProceedingParagraph 11(a) of the Rules provides that: “Unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.”
Although the language of the Registration Agreement for the disputed domain name has been confirmed by the Registrar as Turkish, the Complainant argued that the language of the administrative proceeding should be English.
It is an established practice to make a decision regarding the language of the proceeding to ensure fairness to the parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes. Language requirements should not lead to undue burdens being placed on the parties and undue delay to the proceeding (see, Solvay S.A. v. Hyun-Jun Shin,WIPO Case No. D2006-0593). In this case, the Panel notes that the Complainant, which is not proficient in Turkish, will have to incur considerable expense if it is forced to translate the Complaint into Turkish. Noting that the Respondents were notified of the present proceeding in both English and Turkish, and noting that the Respondents did not comment on the language of the proceeding, and the Respondents’ subsequent failure to file any substantive response to the Complaint, the Panel determines English to be the language of this proceeding.
6.2. Substantive IssuesThe Complainant must prove that the three elements of paragraph 4(a) of the Policy have been met:
(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 Respondents have no rights or legitimate interests with respect to the disputed domain name; and
(iii) the disputed domain name has been registered and used in bad faith.
In view of the Respondents’ failure to submit a Response, the Panel shall decide this proceeding on the basis of the Complainant’s undisputed factual allegations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules, and shall draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules (see Encyclopaedia Britannica, Inc. v. null John Zuccarini, Country Walk,WIPO Case No. D2002-0487).
A. Identical or Confusingly SimilarBased on the evidence submitted, the Panel finds that the Complainant has rights in the SAP mark.
The trademark SAP is wholly encompassed within the disputed domain name. The disputed domain name differs from the Complainant’s trademark SAP merely by the addition of the Turkish dictionary word “akademi” which means “academy” in English, as well as of the generic Top-Level Domain (“gTLD”) extension “.net”. The Panel further notes that given that the trademark is clearly recognizable within the disputed domain name, the dictionary word “akademi” does not prevent a finding of confusing similarity. (See sections 1.8 and 1.11 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)).
Previous UDRP decisions have found that the mere addition of dictionary terms (such as “akademi”) to a trademark in a domain name do not avoid a finding of confusing similarity. This has been held in many UDRP cases (see, SAP SE v. Domain Privacy Service FBO Registrant, The Endurance International Group, Inc. / Amit Kumar,WIPO Case No. D2020-2005; SAP SE v. Vemula VenuWIPO Case No. D2021-1250; SAP SE v. Way choice, Way 3 choice,WIPO Case No. D2020-1259; SAP SE v. Ramesh D and Akshay Krishna, Softnsol, WIPO Case No. D2020-2287).
This Panel concludes that the disputed domain name is confusingly similar to the Complainant’s trademark and therefore finds that the requirement of paragraph 4(a)(i) of the Policy is satisfied.
B. Rights or Legitimate InterestsUnder paragraph 4(c) of the Policy, any of the following circumstances, if found by the Panel, may demonstrate the Respondents’ rights or legitimate interests in the disputed domain name:
(i) before any notice to it of the dispute, the respondents’ 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 respondents have been commonly known by the disputed domain name, even if it has acquired no trademark or service mark rights; or
(iii) the respondents are 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.
The consensus view of UDRP panels on the burden of proof under paragraph 4(a)(ii) of the Policy is summarized in section 2.1 of the WIPO Overview 3.0, which states: “[…] where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element.”
The Complainant claims that the Respondents are not authorized or licensed by the Complainant to use the Complainant’s trademarks. There is no evidence indicating that the Respondents are commonly known by the disputed domain name or the name “sap”. The disputed domain name was used to resolve to a website that purports to offer training services affiliated with the Complainant’s SAP products and services. The website displays the certain SAP trademarks (including but not limited toSAP and SAP BUSINESS ONE) and provides no disclaimer as to any lack of authorization from or affiliation with the Complainant. This cannot amount in the Panel’s view to a bona fide offering of goods or services within the meaning of paragraphs 4(c)(i) of the Policy or to a legitimate noncommercial or fair use of the disputed domain name as provided by paragraph 4(c)(iii) of the Policy.
In the present case, the Complainant has established a prima facie case that the Respondents have no rights or legitimate interests in respect of the disputed domain name. The Respondents have failed to come forward with any explanation to show that it has rights or legitimate interests in the disputed domain name and has not refuted the prima facie case made by the Complainant.
The Panel notes that for the registration of the disputed domain name the name “Sap Akademi” was provided. The Panel is not aware, and no evidence has been brought forward, of the existence of an entity with such a name. Even if such entity exists, noting the well-known character of the SAP trademark, the composition of the disputed domain name, and the reproduction on the website at the disputed domain name of the Complainant’s logo, the Panel finds that it would not be sufficient to give rise to rights or legitimate interests of the Respondents in the disputed domain name.
Furthermore, the nature of the disputed domain name carries a risk of implied affiliation and cannot constitute a fair use as it effectively impersonates or suggests sponsorship or endorsement by the Complainant. See section 2.5.1 of the WIPO Overview 3.0.
For these reasons, and in absence of a plausible explanation from the Respondents, the Panel finds that the Respondents have no rights or legitimate interests in the disputed domain name. Thus, paragraph 4(a)(ii) of the Policy has been satisfied.
C. Registered and Used in Bad FaithThe disputed domain name contains the Complainant’s SAP trademark in its entirety and adds to it the word “akademi”. The only known use of the disputed domain name has been to resolve to a website purporting to offer education and training programs in relation to the Complainant’s SAP-branded software products and services. This fact points to an awareness by the Respondents of the Complainant and its SAP trademark at the date of registration of the disputed domain name. As the panel found in Herbalife International, Inc. v. Surinder S. Farmaha,WIPO Case No. D2005-0765, “the registration of a domain name with the knowledge of the Complainant’s trademark registration amounts to bad faith”.
As regards the use of the disputed domain name, the Panel finds that, according to the unrebutted evidence submitted by the Complainant, the disputed domain name resolves to a website displaying the Complainant’s SAP word trademark along with the Complainant’s SAP figurative trademark, offering competing/similar services with those of the Complainant. The website gives the false impression that the Respondents are affiliated with, or endorsed by the Complainant. The Panel finds that the Respondents intentionally attempted to attract Internet users to its website for commercial gain. Given the confusing similarity between the SAP trademark and the disputed domain name, Internet users would likely be confused into believing that the Complainant is affiliated with the website to which the disputed domain name resolved. Presumably, the Respondents intended to benefit from the confusion created. This amounts to use in bad faith under the terms of paragraph 4(b)(iv) of the Policy.
Based on the evidence and circumstances of this case, the Panel concludes that the disputed domain name was registered and used in bad faith.
7. DecisionFor 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,
Gökhan Gökçe
Sole Panelist
Date: October 21, 2021