The Complainant is Vodafone Group PLC of London, United Kingdom of Great Britain and Northern Ireland ("UK"), represented by Olswang LLP, UK.
The Respondent is Yasin Kardas of Istanbul, Turkey. 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 March 24, 2014. On March 24, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 25, 2014, 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 March 25, 2014, the Center received an informal communication from the Respondent. On March 26, 2014 the Center sent a Possible Settlement communication to the Parties. On April 3, 2014, the Complainant confirmed its intention to not suspend the proceedings.
The Center verified that 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 4, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was April 24, 2014. The Respondent did not submit any formal response. Accordingly, the Center notified the Commencement of the Panel Appointment Process on April 25, 2014.
The Center appointed Christos A. Theodoulou as the sole panelist in this matter on May 9, 2014. 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 in these proceedings is Vodafone Group PLC, a company organized under the laws of England (of the UK). The Complainant has a world-wide reputation in, among others, mobile communications.
The Complainant is one of the world's largest mobile communications companies by revenue, which operates across the globe with revenue of GBP 44.4 billion for the financial year which ended March 31, 2013, according to the uncontested allegations of the Complaint.
The brand name "Vodafone" was first announced to the media on March 22, 1984, according to the uncontested allegations of the Complainant.
The Complainant currently holds 1,432 registered and pending trademarks all over the world for and including the word "Vodafone", 14 of which are in Turkey, 9 are in the United States ("US"), 43 are in the UK, according to the uncontested allegations of the Complainant.
Some of the trademark registrations for VODAFONE owned by the Complainant are the Turkish trademark Registration No. 2001/19998 for VODAFONE, registered on January 14, 2003; the US Trademark Registration No. 2145714 for VODAFONE, registered on March 24, 1998; and the UK trademark Registration No. 1215879 registered on October 14,1998, according to the uncontested allegations of the Complainant.
Furthermore, according to the uncontested allegations of the Complainant, the Complainant is the owner of more than 200 domain name registrations consisting exclusively of the mark VODAFONE and other in which VODAFONE is used in combination with other words or numbers.
The disputed domain name was registered on May 17, 2013. The disputed domain name points to a website advertising links to websites offering products and services identical or similar to those offered by the Complainant, and offering the disputed domain name for sale. 5. Parties' Contentions A. Complainant
The Complainant contends that the disputed domain name is identical or confusingly similar to trademarks or service marks in which the Complainant has rights, that the Respondent has no rights or legitimate interests in the disputed domain name and has not been commonly known by the disputed domain name, and that the Respondent registered and is using the disputed domain name in bad faith. B. Respondent
The Respondent did not formally reply to the Complainant's contentions. 6. Discussion and Findings
Before engaging in the threefold discussion of paragraph 4(a) of the Policy, the Panel will briefly address the procedural issue relating to the default of the Respondent. The implications of a default in this case are telling since the Complainant has the burden of proof, according to paragraph 4(a) of the Policy ("In the administrative proceeding, the complainant must prove that each of these three elements are present"). As such, the Panel can not merely grant the Complainant's request automatically due to the default, but it has to examine instead the evidence presented to determine whether or not the Complainant has proved its case, as required by the Policy. See FNAC v. Gauthier Raymond,WIPO Case No. D2004-0881; Sonofon A/S v. Vladimir Aleksic,WIPO Case No. D2007-0668; Gaudi Trade SpA v. Transure Enterprise Ltd,WIPO Case No. D2009-1028.
The Panel shall now proceed to the analysis of the evidence in this case, based on the three elements of paragraph 4(a) of the Policy. A. Identical or Confusingly Similar
The Complainant has presented evidence to demonstrate that it owns registered trademark rights in VODAFONE throughout the world.
The mere fact that the Respondent has added to the VODAFONE mark the country code Top-Level Domain (ccTLD) suffix ".bz" does not to this Panel affect the essence of the matter: the disputed domain name is identical to the trademark of the Complainant and, in the circumstances of this case, it is by itself sufficient to establish the criterion of identity or confusing similarity for purposes of the Policy, as many previous UDRP panels have found. See e.g., Oki Data Americas, Inc. v. ASD, Inc.,WIPO Case No. D2001-0903; Koninklijke Philips Electronics N.V. v. K. Harjani Electronics Ltd.,WIPO Case No. D2002-1021; DFDS A/S v. NOLDC INC,WIPO Case No. D2006-1070; American Automobile Association, Inc. v. Bladimir Boyiko and Andrew Michailov,WIPO Case No. D2006-0252.
In view of the above, the Panel finds that the Complainant has discharged its burden of proof on this point and holds that the disputed domain name is identical to the Complainant's trademark VODAFONE. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a non-exhaustive list of circumstances which, if found by a panel to be proved based on its evaluation of the evidence presented, shall demonstrate a registrant's right to or legitimate interest in a domain name. These examples are discussed in turn below, with regard to the specific facts of this case.
(i) Use or demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or services prior to the dispute: In the Panel's view, the Respondent is not using the disputed domain name to make any bona fide offering of goods or services, in light of the use of the disputed domain name in connection with a website advertising links to websites offering products and services identical or similar to those offered by the Complainant.
(ii) An indication that the Respondent has been commonly known by the disputed domain name, even if it has acquired no trademark rights: In this case, there is no such indication from the present record.
(iii) Legitimate noncommercial or fair use of the disputed domain name without intent for commercial gain to misleadingly divert consumers or to tarnish the trademarks at issue: Again, in this case there is no such indication from the record, given the apparent commercial use of the website.
Further the Respondent does not seem to have any trademark registrations including the term "vodafone". Additionally, it is to be noted that the Respondent did not present evidence of any license by the Complainant, with whom there seems to exist no relationship whatsoever.
As a conclusion on this point, the Panel finds that the Complainant has established an uncontested prima facie case that the Respondent has no rights or legitimate interests in respect of the disputed domain name, and the Complainant has satisfied paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
The Complainant's argumentation on this point is mainly based on the circumstances mentioned in paragraph 4(b)(iv) of the Policy in order to demonstrate the Respondent's bad faith registration and use of the disputed domain name.
In reviewing the present case, it appears that the Respondent has registered the disputed domain name, which is still being used to advertise links to websites offering similar goods and services to those of the Complainant, to create also a likelihood of confusion with the Complainant's trademarks and for commercial gain.
The bad faith of the Respondent is also reinforced through a simple, logical process as well, in the sense that it would indeed be highly unlikely that the Respondent would register randomly and unintentionally a domain name that is identical to the Complainant's distinctive VODAFONE trademark. Rather, it seems to this Panel more likely that such registration and use would be motivated by a hoped-for capitalization, i.e., commercial gain from the Complainant's reputation.
In addition, the content of the website at the disputed domain name includes an offer to sell such disputed domain name, stating "BUY THIS DOMAIN The domain may be for sale by its owner!".
The Panel also notes the default of the Respondent, which in the present circumstances "reinforces the inference of bad faith registration and bad faith use". See The Hongkong and Shanghai Banking Corporation Limited v. Bill Lynn,WIPO Case No. D2001-0915.
As a consequence of the above, the Panel finds that the Respondent registered and is using the disputed domain name in bad faith.
Accordingly, the Panel finds that the Complainant has successfully proven that the disputed domain name is identical or confusingly similar to trademarks and service marks in which the Complainant has rights, that the Respondent has no rights or legitimate interests in the disputed domain name, and that the Respondent registered and is using the disputed domain name in bad faith. 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.
Christos A. Theodoulou
Sole Panelist
Date: May 12, 2014
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