ARBITRATION AND MEDIATION CENTER ADMINISTRATIVE PANEL DECISION Apeel Technology, Inc., dba Apeel Sciences v. cenk erdogan Case No. D2023-2970 1. The Parties The Complainant is Apeel Technology, Inc., dba Apeel Sciences, United States of America ("United States"), represented by Fish & Richardson P.C., United States. The Respondent is cenk erdogan, Türkiye. 2. The Domain Name and Registrar The disputed domain name
is registered with Dynadot, LLC (the "Registrar"). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on July 11, 2023. On July 12, 2023, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 12, 2023, 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 (Unknown) and contact information in the Complaint. The Center sent an email communication to the Complainant on July 19, 2023 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 July 20, 2023. 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 July 21, 2023. In accordance with the Rules, paragraph 5, the due date for Response was August 10, 2023. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on August 17, 2023. The Center appointed Edoardo Fano as the sole panelist in this matter on August 24, 2023. 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. page 2 The Panel has not received any requests from the Complainant or the Respondent regarding further submissions, waivers or extensions of deadlines, and the Panel has not found it necessary to request any further information from the Parties. Having reviewed the communication records in the case file provided by the Center, the Panel finds that the Center has discharged its responsibility under the Rules, paragraph 2(a), "to employ reasonably available means calculated to achieve actual notice to [the] Respondent". Therefore, the Panel shall issue its Decision based upon the Complaint, the Policy, the Rules and the Supplemental Rules and without the benefit of a response from the Respondent. The language of the proceeding is English, being the language of the Registration Agreement, as per paragraph 11(a) of the Rules. 4. Factual Background The Complainant is Apeel Technology, Inc., dba Apeel Sciences, a United States company operating in the field of food and biotechnology research, and owning several trademark registrations worldwide for APEEL, among which: - United States Trademark Registration No. 5,751,707 for APEEL, registered on May 14, 2019; - United States Trademark Registration No. 5,751,708 for APEEL, registered on May 14, 2019; - European Union TradeMark Registration No. 016361289 for APEEL, registered on June 9, 2017. The Complainant also owns the following trademark applications in the United States for APEEL RIPE TRACK: - United States Trademark Application No. 97886219 for APEEL RIPE TRACK, filed on April 13, 2023; - United States Trademark Application No. 97886223 for APEEL RIPE TRACK, filed on April 13, 2023; - United States Trademark Application No. 97886225 for APEEL RIPE TRACK, filed on April 13, 2023. The Complainant also operates on the Internet, its main website being "www.apeel.com". The Complainant provided evidence in support of the above. According to the WhoIs records, the disputed domain name was registered on April 17, 2023, that is just a few days after the Complainant filed the three trademark applications for APEEL RIPE TRACK in the United States, and it resolves to a Registrar webpage in which it is offered for sale for USD 25,000. On May 12, 2023 the Complainant sent a cease-and-desist letter to the Respondent via its Registrar, without receiving any reply. 5. Parties' Contentions A. Complainant The Complainant contends that it has satisfied each of the elements required under the Policy for a transfer of the disputed domain name. page 3 Notably, the Complainant contends that disputed domain name is confusingly similar to its trademark APEEL and identical to its trademark APEEL RIPE TRACK. Moreover, the Complainant asserts that the Respondent has no rights or legitimate interests in respect of the disputed domain name, since it has not been authorized by the Complainant to register the disputed domain name or to use its trademark within the disputed domain name, it is not commonly known by the disputed domain name, and it is not making either a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name. The Complainant submits that the Respondent has registered the disputed domain name in bad faith, since the Complainant's trademark APEEL is well-known in the field of food and biotechnology research. Therefore, the Respondent targeted the Complainant's trademark at the time of registration of the disputed domain name and the Complainant contends that the Respondent has registered and is using the disputed domain name in bad faith, since the latter was registered by the Respondent essentially in order to resell it to the Complainant for a high price likely in excess of the Respondent's costs related to the disputed domain name. B. Respondent The Respondent has made no reply to the Complainant's contentions and is in default. In reference to paragraphs 5(f) and 14 of the Rules, no exceptional circumstances explaining the default have been put forward or are apparent from the record. A respondent is not obliged to participate in a proceeding under the Policy, but if it fails to do so, reasonable facts asserted by a complainant may be taken as true, and appropriate inferences, in accordance with paragraph 14(b) of the Rules, may be drawn. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"), section 4.3. 6. Discussion and Findings Paragraph 4(a) of the Policy lists three elements, which the Complainant must satisfy in order to succeed: (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 It is well accepted that the first element functions primarily as a standing requirement. The standing (or threshold) test for confusing similarity involves a reasoned but relatively straightforward comparison between the Complainant's trademark and the disputed domain name. WIPO Overview 3.0, section 1.7. Based on the available record, the Panel finds the Complainant has shown rights in respect of a trademark or service mark for the purposes of the Policy. WIPO Overview 3.0, section 1.2.1. The Panel finds the entirety of the mark is reproduced within the disputed domain name. Accordingly, the disputed domain name is identical or confusingly similar to the mark for the purposes of the Policy. WIPO Overview 3.0, section 1.7. It is also well accepted that a generic Top-Level Domain, in this case ".com", is typically ignored when assessing the similarity between a trademark and a domain name. WIPO Overview 3.0, section 1.11.1. page 4 Based on the available record, the Panel finds the first element of the Policy has been established. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy provides a list of circumstances in which the Respondent may demonstrate rights or legitimate interests in a disputed domain name. While the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of "proving a negative", requiring information that is often primarily within the knowledge or control of the respondent. As such, 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. WIPO Overview 3.0, section 2.1. Having reviewed the record, the Panel finds the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. The Respondent has not rebutted the Complainant's prima facie showing and has not come forward with any relevant evidence demonstrating rights or legitimate interests in the disputed domain name such as those enumerated in the Policy or otherwise. The disputed domain name redirects to a Registrar webpage in which it is offered for sale for USD 25,000, a high price likely in excess of the Respondent's costs related to the disputed domain name. The Panel believes that this high price would be paid only by the Complainant (or by someone trying to trade off the Complainant's trademark rights). Moreover, the Panel finds that the composition of the disputed domain name carries a risk of implied affiliation as it effectively impersonates or suggests sponsorship or endorsement by the Complainant. WIPO Overview 3.0, section 2.5.1. Based on the available record, the Panel finds the second element of the Policy has been established. C. Registered and Used in Bad Faith The Panel notes that for the purposes of paragraph 4(a)(iii) of the Policy, paragraph 4(b) of the Policy establishes circumstances, in particular but without limitation, that if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith. In the present case, regarding the registration in bad faith of the disputed domain name, the reputation of the Complainant's trademark APEEL in the field of food and biotechnology research is clearly established, and the Panel finds that the Respondent must have known of the Complainant, and deliberately registered the disputed domain name in bad faith. The Panel further notes that the disputed domain name is also being used in bad faith, since the offer to sell the disputed domain name for a price of USD 25,000, a high price likely in excess of the Respondent's costs related to the disputed domain name that the Panel believes would be paid only by the Complainant (or by someone trying to trade off the Complainant's trademark rights), is evidence of bad faith within the meaning of paragraph 4(b)(i) of the Policy. Moreover, the Panel considers that the nature of the inherently misleading disputed domain name, which includes the Complainant's trademark APEEL in its entirety and is identical to the Complainant's trademark application for APEEL RIPE TRACK, and the fact that it was registered just a few days after the Complainant's trademark APEEL RIPE TRACK was applied for, further supports a finding of bad faith. WIPO Overview 3.0, section 3.2.1. page 5 Based on the available record, the Panel finds the third element of the Policy has been established. 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. /Edoardo Fano/ Edoardo Fano Sole Panelist Date: September 5, 2023
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