The Complainant is SAHIBINDEN Bilgi Teknolojileri Pazarlama ve Ticaret Anonim Sirketi, of Istanbul, Republic of Turkey represented by Müge Seymen, Turkey.
The Respondent is NA NA, of Istanbul, Republic of Turkey, appearing pro se.
The disputed domain name <e-sahibinden.com> is registered with GoDaddy.com, Inc.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 25, 2008. On November 26, 2008, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the disputed domain name. On November 26, 2008, GoDaddy.com, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. 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 December 3, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was December 23, 2008. The Response was filed with the Center by numerous online and email communications between December 1, 2008 and December 12, 2008.
The Center appointed Dilek Ustun as the sole panelist in this matter on January 14, 2009. 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 owns and runs an e-commerce web portal from the domain name <sahibinden.com> which is a Turkish online classified advertising portal since 2001. The portal offers people stored and free of charge listings to communicate with the prospective buyers of their goods and services. It is Turkey's leading e-Commerce marketplace with more than 1 million registered users and nearly 500.000 daily visitors.
The disputed domain name was first registered on August 27, 2007 (as indicated in the “creation date” in the WhoIs record).
The disputed domain name resolves to a webpage, with links almost exclusively in Turkish to various websites including one labeled “sahibinden”. The “sahibinden” link resolves to a website called “www.alcamsatcam.com” which does the same business as the Complainant's website “www.sahibinden.com”.
The Complainant makes the assertions set out in paragraph 4 (a) of the Policy. These are summarized as follows:
The Complainant asserts that the disputed domain name is confusingly similar to its SAHIBINDEN mark. The Complainant notes in this respect that its trademark is wholly incorporated in the disputed domain name. The Complainant adds that through its significant efforts, skills and experience, it has acquired and enjoys substantial goodwill and a valuable reputation in the Complainant's distinctive mark. The maintenance of high standards of quality and excellence for the Complainant's services has contributed to this valuable goodwill and reputation.
The Complainant asserts that the Respondent has no rights or legitimate interests in the disputed domain name. The Complainant's trademarks are distinctive and well-known, therefore it can be inferred that the Respondent has sought to profit from the goodwill in these mark.
The Complainant asserts that the disputed domain name was registered and has been used in bad faith. The Complainant asserts that the Respondent was “aware” of its SAHIBINDEN trademark on the basis that, among other things , the purpose of the Respondent's use of the disputed domain name is to misleadingly divert consumers to a webpage at “www.alcamsatcam.com” which does the same business as the Complainant's website at “www.sahibinden.com” which also is a registered trade mark of the Complainant and on which the Complainant has gained a very well known and reputable value, name and business. On the website of the Respondent accessed from the disputed domain name there are advertisements listed as hyperlinks. When the user clicks on one of those hyperlinks, he/she is directed to another webpage at “www.alcamsatcam.com” on which advertisements are shown in detail with its price, picture, seller information, etc. According to the Complainant, the Respondent by creating a likelihood of confusion with the Complainant's mark attracts for commercial gain, Internet users to its on-line location. Since “www.sahibinden.com” is a very well known and commonly used web portal, users seeking the Complainant are misled to another website with a similar purpose. Such use without debate constitutes bad faith.
The Respondent asserts that the word “sahibinden” could in the Respondent's opinion never be used solely as a trademark or any kind of symbol for a company with financial motives. The respondent also questions the Complainant's delay in bringing forth the Complaint. According to the Respondent <e-sahibinden.com> was registered only because it is generic, e.g., a word used by a hundred million people, and is part of the Turkish language. The Respondent also rejects that the Complainant's assertions regarding bad faith.
This Complaint is based on the SAHIBINDEN trademark which is a registered trademark of the Complainant.
According to the Complaint, the Complainant has been using the trade mark SAHIBINDEN since 2001. The Complainant has registered the trademark with the Turkish Patent Institute in the year 2000 and has registered several trademarks related to SAHIBINDEN trademark ever since. Such trademarks include the SAHIBINDEN.COM trademark which has also been registered by the Complainant.
Proof of ownership of a registered trade mark or service mark is sufficient for a complainant for the purposes of paragraph 4(a)(i) of the Policy. In addition, the Complainant may rely on the distinctiveness of its mark in Turkey.
Consequently, the Panel finds that the domain name <e-sahibinden.com >, which fully incorporates the Complainant's trademark with only the addition of “e-”, is confusingly similar to the trademark in which the Complainant has rights and the Complainant has met the requirements of the first test under the Policy.
Paragraph 4(c) of the Policy sets out a number of circumstances which, without limitation, may be effective for a respondent to demonstrate that it has rights to, or legitimate interests in, a disputed domain name, for the purposes of Paragraph 4(a)(ii) of the Policy. Those circumstances are:
(i) Before any notice to [the respondent] of the dispute, use by [the respondent] 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) Where [the respondent] (as an individual, business, or other organization) [has] been commonly known by the disputed domain name, even if [the respondent has] acquired no trade mark or service mark rights; or
(iii) Where [the respondent is] 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 trade mark or service mark at issue.
Viewing this situation in light of paragraph 4(c) of the Policy, what the Respondent has done to date is not a bona fide offering of goods or services. There is no evidence in the record that the Respondent has been commonly known by the domain name.
The Respondent has not provided any evidence of the type specified in paragraph 4(c) of the Policy, or any other circumstances giving rise to a right or legitimate interest in the domain name. It is clear that the Respondent has not demonstrated any bona fide offering of goods and services by its using the disputed domain name. Nor has the Respondent shown that it has been commonly known by the disputed domain name. The Complainant showed that the Respondent has neither a license nor any other permission to use the domain names in dispute and the Respondent has not made a noncommercial or fair use of the name.
The Panel finds that the Respondent has no rights or legitimate interests in respect of the domain name.
Paragraph 4(b) of the Policy provides a list of indicative circumstances that suggest bad faith registration, however, such list is not exhaustive and a finding of bad faith depends on the circumstances of each case.
The Respondent's use of the disputed domain name is to misleadingly divert consumers to a webpage at “www.alcamsatcam.com” which appears to be in the same business as the Complainant's website “www.sahibinden.com”, which also corresponds to a registered trademark of the Complainant.
It is important for a finding of bad faith that the Respondent knew of the Complainant's trademark. The circumstances of this case support, on balance, an inference that the Respondent had such knowledge. When the Respondent registered the domain name, it is likely the Respondent, residing in Turkey, knew that SAHIBINDEN.COM was the trademark of the Complainant. It registered the disputed domain name because it would be recognized as such.
The Panel, in accordance with previous decisions issued under the Policy, is of the opinion that the likelihood of actual knowledge of the Complainant's trademark at the time of the registration of the disputed domain name may be considered as an indication of bad faith (see Parfums Christian Dior v. Javier Garcia Quintas and Christiandior.net, WIPO Case No. D2000-0226).
Another reason is that the Respondent by creating a likelihood of confusion with the Complainant's mark intended to attract for commercial gain, Internet users to its on-line location. Since “www.sahibinden.com” is a very well known and commonly used web portal, users seeking to use that portal are attracted to confusingly similar website with a similar purpose. Such use in the circumstances constitutes bad faith
The Panel finds that the Complainant has established the third element of the Policy.
For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name, <e-sahibinden.com>, be transferred to the Complainant.
Dated: January 22, 2009