WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Harioglu Nakliyat Ltd. v. Kendal Andan
Case No. D2008-0364
1. The Parties
Complainant is Harioglu Nakliyat Ltd., of Istanbul, Turkey, represented internally.
Respondent is Kendal Andan, of Istanbul, Turkey.
2. The Domain Name and Registrar
The disputed domain name <hayrioglu.com> is registered with Direct Information Pvt Ltd d/b/a PublicDomainRegistry.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 4, 2008. On March 10, 2008, the Center transmitted by email to Direct Information Pvt Ltd d/b/a PublicDomainRegistry.com a request for registrar verification in connection with the domain name at issue. On March 11, 2008, Direct Information Pvt Ltd d/b/a PublicDomainRegistry.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint by email on March 16, 2008, and in hardcopy on March 20, 2008. The Center verified that the Complaint together with the amendment to 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 Respondent of the Complaint, and the proceedings commenced on March 26, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was April 15, 2008. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on April 16, 2008.
The Center appointed Nasser A. Khasawneh as the sole panelist in this matter on April 21, 2008. 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
Complainant owns the trademark HAYRIOGLU in Turkey with registration number 174710 covering class 39. Complainant states that it is a well-known house moving company in Turkey.
5. Parties’ Contentions
Complainant avers that it began using the name “Hayrioglu” as a trade name, trademark and service mark in 1996. Since 1996, Complainant avers, Complainant has made extensive and prominent use of its HAYRIOGLU trademark in connection with services, including offering its services online through web sites with the domain names <hayrioglu.com.tr>, <hayrioglunakliyat.com>, and <hayrioglunakliyat.com.tr>.
Complainant’s legal contentions and factual averments are remarkably brief.
First, Complainant alleges that it owns a trademark containing the term HAYRIOGLU and that it conducts business on the Internet through numerous domain names that include the trademark.
Second, without elaboration in its Complaint, Complainant states that it has secured court decisions to prevent Respondent from using the “HAYRIOGLU” trademark in any media, as a trademark, or “to prevent the access to the site “hayrioglu.com” from Turkey”. Complainant attaches one court decision in this regard. The decision is issued by Istanbul’s Intellectual and Industrial Property Court. It is a judgment regarding the request for a preliminary injunction by Complainant. The Panel reviewed the decision and it does seem to grant the injunction preventing access to the disputed domain name, amongst others, from Turkey. However, the decision only orders a preliminary injunction and is not a decision on the merits. The decision refers to another decision by the same court (No. 2007/73) but this latter decision was not presented by Complainant. There are 8 named defendants in the preliminary injunction action and none of these, on the face of it, seem to be the same as the Respondent in this claim.
Complainant also contends that Respondent’s postal address is fictitious.1
Third, Complainant contends that Respondent registered the disputed domain name in bad faith on June 29, 2002, and that Respondent continues to use the name in bad faith. Complainant explains that Respondent “registered hayrioglu.com to confuse our customers [who] search . . . internet browsers (like google) to find our telephone numbers and addresses. They have been responding [to] the phone calls from our customers as if they were ‘real hayrioğlu’”.
On the basis of these contentions, Complainant seeks transfer of the disputed domain name.
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
The Rules require a panel to render its decision 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. Rules, paragraph 15(a). It is incumbent upon a complainant to supply sufficient factual information and analysis to demonstrate a complainant’s entitlement to relief.
A complainant must establish each element of paragraph 4(a) of the Policy, namely:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights;
(ii) the respondent has no rights or legitimate interests in respect of the domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
Complainant must establish these elements even if the respondent does not reply. The Vanguard Group, Inc. v. Lorna Kang, WIPO Case No. D2002-1064.
A. Identical or Confusingly Similar
Although Complainant provides no explanation other than describing its registered trademark, the Panel is able to find that Respondent’s domain name <hayrioglu.com> is confusingly similar to Complainant’s trademark.
Panels disregard the “.com” suffix in evaluating confusing similarity. E.g., VAT Holding AG v. VAT.com, WIPO Case No. D2000-0607; Shangri-La International Hotel Management Limited v. NetIncome Ventures Inc., WIPO Case No. D2006-13l5.
The Panel concludes, therefore, that the requirements of paragraph 4(a)(i) of the Policy are fulfilled.
B. Rights or Legitimate Interests
On the basis of the limited allegations of the Complaint, this Panel cannot conclude, however, that Respondent has no rights or legitimate interests in the domain name, as explained below.
The Policy contains a non-exhaustive list of circumstances that may demonstrate when a respondent has rights or legitimate interests in the use of a domain name. The list includes: (1) using the domain name in connection with a bona fide offering of goods and services; (2) being commonly known by the domain name; or (3) making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers. Policy, paragraphs 4(c)(i) – (iii).
A complainant must show a prima facie case that a respondent lacks rights or legitimate interests in a disputed domain name, after which the burden of rebuttal passes to the respondent. E.g., Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455. The absence of rights or legitimate interests is established if a complainant makes out a prima facie case and the respondent enters no response. Id., (citing De Agostini S.p.A. v. Marco Cialone, WIPO Case No. DTV2002-0005).
Complainant does not provide in its Complaint any information respecting the elements listed above, averring only that Respondent provided a fictitious address to the registrar.
While this Panel appreciates that complainants face the often challenging task of proving a negative, in the present case, Complainant fails to supply any factual information that would enable this Panel to rule ― either way ― upon the question of whether Respondent has rights or legitimate interests.
That Complainant has apparently secured the court decision alluded to in the Complaint does not, by itself, establish a prima facie showing on this essential element of Complainant’s case in the present proceeding. This is particularly the case as the only court decision that Complainant attached to its Complaint is a preliminary injunction order and is actually referencing another decision which was not provided. Furthermore, the said court order does not seem to name Respondent. Complainant did not provide any detailed explanation of the background and context of this court decision.
Considering all of the allegations of the Complaint, this Panel finds that Complainant falls short of establishing the required prima facie case, which would otherwise operate to shift to Respondent the burden of demonstrating that Respondent has legitimate rights or interests. See Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455; Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110.
Panels are permitted to undertake limited factual research (WIPO Overview of WIPO Panel Views on Selected UDRP Questions). The Policy and Rules will not, however, be served by a panel attempting to fashion a complainant’s case out of whole cloth.
The Panel concludes, therefore, that Complainant has failed to establish its burden under paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
In light of the Panel’s conclusion that Complainant has failed to establish that Respondent lacks rights or legitimate interests in the disputed domain name, it is unnecessary to rule upon Complainant’s further summary contentions that Respondent registered and is using the name in bad faith under the Policy.2
For all the foregoing reasons, the Complaint is denied.
Nasser A. Khasawneh
Dated: May 5, 2008
1 Without explanation Complainant alleges that “Respondent’s postal address is fictitious and non-existent”. The Panel notes, however, that Complainant omitted from the Complaint the physical address information listed for Respondent in the whois record (altaycesme mah. bomac sk. yazicilar apt. kat:2 no:7 Da:4 ISTANBUL, 34843 TR). See http://www.publicdomainregistry.com/whois-process/
2 The Panel is nonetheless of the opinion that Complainant would also need to provide more specific factual support in order to establish the third UDRP element of registration and use in bad faith.