Complainant is Molnar-Institut, Dr. Imre Molnar, of Berlin, Germany, represented by Wilmer Cutler Pickering Hale and Dorr LLP, Germany.
Respondent is Ozlem Yegengil, of Istanbul, Turkey.
The disputed domain name <drylab.com> (the “Domain Name”) is registered with GoDaddy.com, Inc.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 30, 2008. On December 31, 2008, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the Domain Name. On December 31, 2008, GoDaddy.com, Inc. transmitted by email to the Center its verification response confirming that 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”), 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 January 12, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was February 1, 2009. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on February 6, 2009.
The Center appointed Bernhard F. Meyer as the sole panelist in this matter on February 12, 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.
Complainant was established in 1981 and offers a scientific and technical service for problems concerning High Performance Liquid Chromatography (“HPLC”)-analysis. HPLC is a widely used technique in qualitative and quantitative analysis.
The DryLab Software is a program for optimizing analytical HPLC and is – according to Complainant – well known to professionals in the respective field.
Complainant is the owner of the following trademarks:
– DRYLAB, United States registration, No. 73 740 882, registered on August 1, 1989;
– DRYLAB, German registration, No. 302 008 067 324, filed on October 22, 2008 and registered on January 14, 2009.
On September 3, 2008, the Domain Name was registered by Cyber Consulting, Inc. of Istanbul, Turkey. According to the Complaint, the Domain Name was transferred to Respondent who has been listed as the Registrant of the Domain Name on the publicly available WhoIs and as confirmed by the Registrar since the filing of the Complaint.
Complainant objects to the use of the Domain Name by Respondent and bases its Complaint on the following grounds:
1. First, Complainant contends that the Domain Name is identical to a trademark in which Complainant has rights.
Complainant contends that the Domain Name <drylab.com> totally reproduces its DRYLAB trademarks.
2. It further argues that Respondent has no rights or legitimate interests in respect of the Domain Name.
According to Complainant Respondent neither holds any rights in the DryLab Software nor is it licensed to use Complainant's trademarks.
By operating the website at the Domain Name for commercial purposes like advertising goods and services offered by Complainant, Respondent (Domain Name defined on first page) is not making a legitimate non-commercial or fair use of the Domain Name.
3. Finally, Respondent registered/acquired (and uses) the Domain Name in bad faith.
Complainant states it bought “the rights” to the Domain Name from its former owner (Rheodyne, LLC). Due to a failure of the concerned Registrar, the transfer was not successful within the transfer period until the end of August, 2008. On September 3, 2008, the Domain Name was registered by Cyber Consulting, Inc. Complainant contends that the Domain Name was at that time used in bad faith by advertising HPLC analysis software and services.
Cyber Consulting, Inc. ignored a warning letter of the legal counsel of Complainant requesting the transfer of the Domain Name to Complainant, but transferred it to Respondent. Since then, Respondent operates the website at the Domain Name and is making use of Complainant's reputation by placing advertising links for HPLC services and products. Through this, Respondent intentionally attempts to attract Internet users to the services and goods offered and is creating a likelihood of confusion with Complainant's trademarks. This likelihood is even stronger since the website is partially run in German.
Another sign of the use in bad faith is that Respondent is offering the Domain Name for sale.
Respondent did not reply to Complainant's contentions. Therefore, the Panel bases its findings on the facts as submitted by Complainant, including the appearance of the Domain Name's website.
Paragraph 4(a) of the Policy provides that Complainant must prove each of the following three elements in order to succeed in an administrative proceeding. Thus, if Complainant fails to prove any one of the three elements it fails on its Complaint under the Policy.
(i) Respondent's Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) Respondent's Domain Name has been registered and is being used in bad faith.
Disregarding the necessary gTLD suffix, a domain name which is identical to a registered trademark is sufficient to meet the demands established by paragraph 4(a)(i) of the Policy. The Panel finds that the Domain Name in dispute is identical to Complainant's trademarks.
Complainant asserts that Respondent has no rights or legitimate interests in the Domain Name. According to paragraph 4(c) of the Policy, the following circumstances can demonstrate a respondent's rights to and legitimate interests in a domain name:
(i) before any notice was given to Respondent of the dispute, Respondent used, or demonstrably made preparations to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business, or other organization) has been commonly known by the Domain Name, even though it has not acquired any trademark or service mark rights; or
(iii) Respondent is making a legitimate non-commercial or fair use of the Domain Name.
There is no evidence, before any notice was given to Respondent, of use of, or demonstrable preparations to use, the Domain Name in connection with a bona fide offering of goods or services. Furthermore, it is not substantiated that Respondent is commonly known by the Domain Name even though no trademark or service mark rights are required.
Since there are on the website at the Domain Name links to websites of third parties, offering goods and services that are competing with those of Complainant or offering the sale of domain names, in the Panel's view Respondent is making a commercial, not bona fide, use of the Domain Name.
Respondent lacks rights and legitimate interests in respect of the Domain Name under the Policy and the Panel concludes that the prerequisites of paragraph 4(a)(ii) of the Policy have been proven by Complainant.
According to paragraph 4(b) of the Policy, the Domain Name has been used and registered in bad faith if:
(i) circumstances indicating that Respondent has registered and has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of Respondent's documented out-of-pocket costs directly related to the Domain Name; or
(ii) Respondent has registered the Domain Name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or
(iii) Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the Domain Name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of Respondent's website or location or of a product or service on its website or location.
Respondent is not the original registrant of the Domain Name, but, for the purposes of the Policy, his acquisition of this Domain Name constitutes a registration (see also MC Enterprises v. Mark Segal (Namegiant.com), WIPO Case No. D2005-1270).
According to the Complaint and its Annex VIII (printout of <“www.drylab.com”>, dated November 17, 2008), the former owner of the Domain Name (Cyber Consulting, Inc.) registered and was already using the Domain Name in bad faith by attempting commercial gain. This assertion was not contested by Respondent.
The notice on the disputed website: “This domain is for sale! If you wish to make an offer, please contact [Respondent's e-mail address]” clearly suggests that Respondent acquired it for the purpose of selling the Domain Name for valuable consideration in excess of Respondent's out-of-pocket expenses (Royal Bank of Canada v. Namegiant.com, WIPO Case No. D2004-0642).
As to use of the Domain Name, the Panel can not see any good faith of the Respondent either. To connect the Domain Name to a website showing links to products and services competing with those of Complainant constitutes an improper use of Complainant's trademark and is evidence of Respondent's bad faith use of the Domain Name (Micro Electronics, Inc. v. J Lee, WIPO Case No. D2005-0170; Mudd, (USA) LLC v. Unasi Inc. (MUDDPRODUCTS-COM-DOM), WIPO Case No. D2005-0591).
In light of these circumstances, the Panel concludes that Respondent's acquisition and use of the Domain Name meet the requirements of paragraph 4(a)(iii) of the Policy and that the Domain Name has been registered and is being used by Respondent in bad faith.
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 <drylab.com> be transferred to Complainant.
Bernhard F. Meyer
Dated: February 26, 2009