WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Yurtici Kargo Servisi A.S. v. Yurticicargo Yurticikargo
Case No. D2003-0707
1. The Parties
The Complainant is Yurtici Kargo Servisi A.S., Istanbul, of Turkey, represented by Özlem Soylu, Turkey.
The Respondent is Yurticicargo Yurticikargo, of Turkey.
2. The Domain Name and Registrar
The disputed domain name <yurticicargo.com> is registered with iHoldings.com Inc. d/b/a DotRegistrar.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on September 8, 2003. On September 9, 2003, the Center transmitted by email to iHoldings.com Inc. d/b/a DotRegistrar.com a request for registrar verification in connection with the domain name at issue. On September 9, 2003, iHoldings.com Inc. d/b/a DotRegistrar.com transmitted by email to the Center its verification response. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy"), 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 September 18, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was October 8, 2003. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 9, 2003.
The Center appointed Harini Narayanswamy as the sole panelist in this matter on October 15, 2003. 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.
The Complainant had represented to the Panel that it wished to make a supplemental filing, which was allowed by the Panel and received by the Center on October 21, 2003.
4. Factual Background
The Complainant "Yurtici Kargo Servisi A.S " is a Turkish company rendering transportation and cargo services since 1982. It has its principal place of business in Istanbul.
The Complainant is the owner of the trademark "YURTICI KARGO" (and device), bearing registration No. 99 011341, for transportation services in class 39, registered with the Turkish Patent Office on July 14, 1999.
The Respondent is the registrant of the domain name <yurticicargo.com>.
The postal address of the Respondent and its contact details, as contained in the Registrar’s data, are incorrect.
The Complainant has filed a print out of the content of the website available at "www.yurticicargo.com", which displays, in Turkish, the website of a cargo business called "Aras Cargo". The website also prominently displays that the domain name <yurticicargo.com> is for sale.
The Complainant has provided as a supplemental filing, documentary evidence of a translated e-mail correspondence, dated October 3, 2003, received from the Respondent, where the Respondent offers to transfer the domain name to the Complaint for a sum of TL 7.5 Billion.
5. Parties’ Contentions
The Complainant states that: the domain name <yurticicargo.com> is identical or confusingly similar to the trademark " YURTICI KARGO" in which the Complainant has exclusive rights; and that the Respondent has no rights or legitimate interests with respect to the domain name. The disputed domain name was registered and is being used in bad faith by the Respondent.
The Complainant states that the domain name, has been offered for sale on the website, which also hosts the contents of another cargo company called "Aras Cargo". The Complainant alleges that the Respondent has no right or legitimate interests in the said domain name or the trademark, as the Complainant has no connection with the Respondent. The domain name was registered primarily for the purpose of selling or otherwise transferring it to the Complainant for valuable consideration in excess of the Respondent’s out-of-pocket costs directly related to the domain name, and the fact that the Respondent has supplied false contact information to the Registrar shows bad faith registration and use of the domain name.
The Complainant requests that the Administrative Panel issue a decision that the domain name <yurticicargo.com> be transferred to the Complainant.
The Respondent did not file any reply to the Complaint, despite the fact that the Center, in compliance with paragraphs 2(a) and 4(a) of the Rules, has formally notified the Respondent of the commencement of proceedings and sent a copy of this Complaint to the Respondent. The Panel is convinced that the Respondent has been notified of these proceedings by the Center and has not been denied its right to be heard in these proceedings.
6. Discussion and Findings
The Policy, at paragraph 4 (a) states that the following three elements should be present in order for the Complainant to succeed in these proceedings.
(i) The domain name should be identical or confusingly similar to a trademark in which the Complainant has rights;
(ii) The Respondent has no rights or legitimate interests in the domain name;
(iii) The domain name has been registered and is used in bad faith.
Each of these aspects of the present case is discussed below:
A. Identical or Confusingly Similar
The domain name <yurticicargo.com> differs from the Complainant’s trademark "YURTICI KARGO" only with respect to the way the word cargo is spelt. The disputed domain name uses the letter "C" in place of the letter "K", in the trademark. The trademark comprises of an invented word ‘Kargo’ combined with the name Yurtici.
It has become common practice for potential infringers to register domain names with minor spelling variations, a phenomenon which is now commonly referred to as "typosquatting". In the present case, the typosquatting has been done in a strategic manner, by replacing a key letter with a phonetically similar letter to make the invented word in the trademark a common dictionary word. The likelihood of confusion with the trademark in such a case is higher, the domain name is virtually phonetically similar to the mark.
It is now fairly well established that domain names have been held to be confusingly similar to trademarks, when some letters have been interchanged or replaced with a phonetically similar letter in order to create confusion in the minds of users, see WIPO Case No. D2000-0323. Other cases of typosquatting are Playboy Enterprises v. Movie Name Company, WIPO Case No. D2001-1201, Yahoo! Inc. and GeoCities v. Data Art Corp., DataArt Enterprises, Inc., StonybrookInvestments, Global Net 2000, Inc., Powerclick, Inc., and Yahoo Search, Inc., WIPO Case No. D2000-0587, Hobsons, Inc. v. Peter Carrington a/k/a/ Party Night Inc., WIPO Case No. D2003–0317.
In determining confusing similarity the addition of the graphic elements in the trademark are disregarded as it cannot be reproduced in a domain name and have been previously held to be without legal significance in determining similarity. (See WIPO Case No. D2001-0032).
The disputed domain name <yurticicargo.com> has the potential to cause confusion both phonetically and visually, with the Complainant’s trademark. The Panel therefore concludes that the domain name is confusingly similar to a trademark or service mark in which the Complainant has prior exclusive rights.
B. Rights or Legitimate Interests
It is evident from the contents of the website and from the email communication sent by the Respondent to the Complainant, that the Respondent has no legitimate right or interest in the trademark or the domain name. The domain name is being used by the Respondent to divert users to the webpage of another cargo company. The Complainant has stated that the website hosts the details of a company known as ‘Aras’ Cargo. When the Panel visited the website on October 17, 2003, the name of the company displayed on the site was ‘MNG’ Cargo. It is clear that the Respondent is using the domain name to display on the website publicity material for other cargo companies, by using a name in which the Respondent has no legitimate right or interest.
The Respondent has stated in an email communication dated October 3, 2003, to the Complainant "You ( Complainant) are the number one in the cargo sector. Any direction of the yurticargo.com to other sites is not received well by your customers …. The value of this site is TL 7.5 billion". Clearly the Respondent has tried to derive commercial value from the domain name of a leading provider of cargo services in Turkey. Since the Respondent is also from Turkey, the fame of the mark is known to the Respondent, who has used the name belonging to Yurtici Kargo, to attract customers to a website, which action of the Respondent is not received well by the mislead customers.
The other circumstances of the case, also, do not show bonafide action on the part of the Respondent. The Respondent has given a false address and most likely a false name, further the Respondent has failed to reply. All these facts and circumstances give rise to an inference that the Respondent has no legitimate right to the domain name.
Paragraph 14(b) of the Rules provides that, in the absence of exceptional circumstances, a Panel shall draw such inferences as it considers appropriate from the failure of a party to comply with a provision or requirement of the Rules. The Administrative Panel draws from this failure the following inferences: (i) the Respondent does not deny the facts which are asserted by the Complainant, and (ii) the Respondent does not deny the inferences which the Complainant has drawn from these facts.
The Respondent has not provided evidence to the Panel as specified in paragraph 4(c) of the Policy, nor can the Panel find any other circumstances giving rise to a right or legitimate interest in the Domain Name. The Complainant states that the Respondent has neither a license nor any other permission to use the domain name in dispute. In the light of the facts and circumstances discussed above and in the absence of evidence brought forward by the Respondent, the Panel concludes that the Respondent has no rights or legitimate interests in the domain name <yurticicargo.com> and that the requirement of the Policy Paragraph 4(a) (ii) is satisfied.
c. Bad faith (paragraph 4 (a) (iii))
Paragraph 4 (b) of the Policy lists out the circumstances, in particular and without limitation, which shall be considered to be evidence of registration and use of the domain name in bad faith. One of the circumstances is if the domain name was registered or acquired primarily for the purpose of selling, renting, or otherwise transferring the domain name registration for a valuable consideration in excess of the Respondent’s out-of-pocket expenses (Paragraph 4 (b) (i)).
The Respondent’s e-mail of October 3, 2003, and the message displayed on the Respondent’s website available at "www.yurticicargo.com" are obvious offers to sell the domain name to the Complainant. The sum of TL 7.5 Billion is clearly a sum in excess of the costs for obtaining, registering and maintaining the domain name.
Such use of the domain name is use of the type contemplated by Paragraph 4(b)(i) of the Policy, and accordingly is sufficient ground to persuade the Administrative Panel that the domain name <yurticicargo.com> was registered and is being used by the Respondent in bad faith.
Further, supplying of false information has been held to be bad faith registration. (See WIPO Case No. D2002-0155).
The Panel therefore concludes that the Respondent registered and is using the domain name <yurticicargo.com> in bad faith and that the requirement of Paragraph 4(a) (iii) of the Policy is satisfied.
The Panel finds that:
The domain name <yurticicargo.com> is confusingly similar to the Complainant's trademark. The Respondent has no rights or legitimate interest with respect to the domain name. The domain name has been registered and is being used in bad faith by the Respondent.
Pursuant to paragraph 4(i) of the Policy and Paragraph 15 of the Rules, the Panel requires that the Registrar transfer the domain name <yurticicargo.com> to the Complainant.
Dated: October 24, 2003