The Complainant is Sahıbınden Bilgi Teknolojileri Pazarlama ve Ticaret Anonim Şirketi of Kozyatağı, Kadıköy, İstanbul, Turkey, represented by Ümit Yıldırım, Turkey.
The Respondent is Tansel Buyukkarakas Bekir Kahraman of Arimest Bahcelievler, Istanbul, Turkey.
The disputed domain name <sahibimden.com> is registered with OnlineNic, Inc. d/b/a China-Channel.com.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 16, 2009. On November 17, 2009, the Center transmitted by email to OnlineNic, Inc. d/b/a China-Channel.com a request for registrar verification in connection with the disputed domain name. On November 18, 2009, OnlineNic, Inc. d/b/a China-Channel.com 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 November 23, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was December 13, 2009. The Respondent filed an informal Response by email on December 4, 2009.
The Center appointed Gökhan Gökçe as the sole panelist in this matter on December 22, 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, Sahibinden Bilgi Teknolojileri Pazarlama ve Ticaret Anonim Şirketi, is a Turkish online classified advertising company that offers stores and free of charge listings. The Complainant has owned and ran an e-commerce web portal from the domain name “www.sahibinden.com” since 2001.
The portal offers a platform for prospective buyers and sellers offering their goods and services and is Turkey's leading e-commerce marketplace.
The Complainant has several trademark registrations containing variations of its trademark, SAHIBINDEN and states its earliest registration with the Turkish Patent Institute is in 2000. The Complainant registered SAHIBINDEN and SAHIBINDEN.COM with the Turkish Patent Institute on and May 30, 2005 as evidenced in Annex 3.
The Respondent registered the disputed domain name <sahibimden.com> on February 14, 2004 as evidenced in Annex 1.
In accordance with paragraph 4(i) of the Policy, the Complainant requests that the domain name <sahibimden.com> be transferred to the Complainant.
The Complainant submits the grounds for these proceedings are listed in paragraph 4(a) of the Policy.
The Complainant submits that it has achieved a good reputation through its own efforts and extensive use of its trademark since 2000. The Complainant boasts it is Turkey's leading e-commerce marketplace with more than 1 million registered users and nearly 500.000 daily visitors.
The Complainant contends the disputed domain name is confusingly similar to the Complainant's registered trademark. The Complainant notes the disputed domain name differs from the Complainant's mark only by changing of a single letter (“m”) in the domain name and avers that the Respondent's practice constitutes a typical case of typosquatting.
The Complainant notes the disputed domain name was registered in 2004 when the Complainant's use of and rights to its trademark were well established.
The Complainant asserts that the Respondent has no rights or legitimate interests in the disputed domain name. The Respondent is not commonly known by the disputed domain name and the Complainant has not authorised or granted a license to the Respondent to use the mark.
The Complainant contends that the Respondent does not make legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue. The Complainant further states that the Respondent offered the domain name for sale by taking advantage of the Complainant's well known trademark as evidenced in the screen shot of the webpage the disputed domain resolves to accessed on November 16, 2009 exhibited at Annex 4 which states “This Domain is For Sale! Please wait while forwarding to isimbankasi.com...” The Complainant notes that the Respondent hyperlinks the visitor to another website “www.isimbankasi.com” offering several domain names for sale. The Complainant submits that the domain name <isimbankasi.com> is also registered by “Tansel Buyukkarakas” and the registrant address is also the same with the registrant address of the Respondent as evidenced at Annex 5. The Complainant states that when a user follows the link for “www.sahibimden.com” it resolves to a web page, a screen shot accessed on November 16, 2009 is exhibited at Annex 6, whereby the following is displayed;
- Do you know how much money sahibinden.com earns? There are so many people who enter “www.sahibimden.com” assuming that it is “www.sahibinden.com”. So buy it and then you will be the owner of <sahibimden.com>.
- Purchase price: 5.000$. In order to purchase this domain name, please fill out the Communication Form.
- Attention: The procedure would be much faster if you fill out the form in a complete way.
The Complainant contends that this clearly demonstrates the Respondent's intention of diverting Internet traffic intended for the Complainant to the Respondent's site, primarily for the purpose of generating revenue from the sale of the domain name. The Complainant contends the Respondent is not making legitimate noncommercial or fair use of the domain name without intent of commercial gain to misleadingly divert consumers.
The Complainant further contends that the Respondent does not have rights or legitimate interests in the disputed domain name and that the Respondent cannot fulfil any of the illustrative requirements of paragraph 4(c) of the Policy that could demonstrate rights in the disputed domain name.
The Complainant avers that the Respondent was well aware of the Complainant's goodwill and that trademarks SAHIBINDEN and SAHIBINDEN.COM have a well established reputation. The Complainant notes that the Respondent registered the disputed domain name in 2004 well after the Complainant registered its trademark. The Complainant contends that the Respondent had actual and constructive notice of the Complainant's trademark at the time of registering the disputed domain name indicating bad faith. The Complainant avers that use of the domain name, whereby the Respondent offers the domain name for sale by taking unfair advantage of the Complainant's trademark clearly stating his intention to divert those who mistakenly enter “www.sahibimden.com” assuming that it is the Complainant's website is evidence of bad faith. Furthermore, the Complainant notes the Respondent's price for the domain name of $5,000 is clearly in excess of Respondent's out-of-pocket expenses which is a clear indication of bad faith.
The Complainant contends that the disputed domain name was registered and is being used in bad faith.
In response to the notification of this dispute the Respondent sent a series of e-mails which have been accepted as the Respondent's Response. Other than this communication the Respondent did not file a formal Response to the Complaint.
In his e-mail correspondence, the Respondent confirms that he is the owner of the disputed domain name since February 14, 2004. The Respondent notes the different meanings of the disputed domain name and the Complainant's trademark, namely that the disputed domain name means “from my owner” whilst the Complainant's trademark “from owner”.
In later correspondence the Respondent states that he has owned the domain name for over 5 years and that he offered the disputed domain name for sale on the Complainant's e-commerce website which is legitimate business.
The Respondent states that he is the rightful owner of the disputed domain name and that the Complainant cannot claim rights in it solely because it is similar to their trademark.
Paragraph 4(a) of the Policy sets forth the following three elements which the Complainant must prove, during the administrative proceedings, to merit a finding that the domain name of the Respondent be transferred to the Complainant:
(a) the domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(b) the Respondent has no rights or legitimate interests in respect of the domain name; and,
(c) the domain name has been registered and is being used in bad faith.
Pursuant to paragraph 15(a) of the Rules, the Panel shall decide a complaint 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.
The Complainant has established its rights in the trademark SAHIBINDEN and SAHIBINDEN.COM as evidenced at Annex 3 to the Complaint. The Panel notes the Respondent's registration of the disputed domain name predates the Complainant's SAHIBINDEN.COM trademark registration. Although the Respondent registered the disputed domain name prior to the Complainant's trademark registration this does not prevent a finding of identical and/or confusingly similar. The Panel follows the consensus view of the Overview of WIPO Panel Views on Selected UDRP Questions 1.4, that Registration of a domain name before a complainant acquires trademark rights in a name does not prevent a finding of identity or confusing similarity. The UDRP makes no specific reference to the date of which the owner of the trade or service mark acquired rights. Furthermore, the Complainant relies on rights in the trademark on the basis that it has established wide recognition and submits that the trademark SAHIBINDEN was registered in 2000. While the Panel would have appreciated the Complainant to have submitted proof of this trademark registration, upon checking the Turkish Patent Institute records the Panel is satisfied that the Complainant was also the owner of the trademark SAHIBINDEN in 2000. Nonetheless, it is clear to the Panel that the Complainant has spent considerable time, effort and finances in securing goodwill and establishing its reputation. It is evident that the Complainant has and continues to use the trademark and its website “www.sahibinden.com” to provide a common online platform for buyers and sellers of all goods and services.
The only difference between the disputed domain name and the Complainant's trademark is use of “m” instead of “n”. It is evident to the Panel that the Respondent has engaged in typosuatting. Typosquatting is registering domain names that are deliberately designed to leverage off other companies' trademarks. Typically, a typosquatter will register incorrectly spelled versions of companies' domain names with the hope of receiving a high volume of accidental traffic based on the probability that a certain number of Internet users will mistype the name of a website or well known trade name. It is well established that the deliberate introduction of errors or changes does not render the Respondent's domain name less confusingly similar to the trademark held by the Complainant, Dow Jones & Company, Inc. and Dow Jones, L.P. v. Powerclick, Inc., WIPO Case No. D2000-1259.
As stated above the only difference between the disputed domain name and Complainant's trademark is the letter “m” instead of “n”. Not only are the two letters visually very similar they are also very difficult to differentiate phonetically and is therefore not sufficient to prevent or even reduce the likelihood of confusion. Such spelling errors have been found to be confusingly similar to the trademark which they target, Mattison Avenue Corporation d/b/a Buggies Unlimited v. Blockbuster Golf Cars, Inc./Domains by Proxy Inc., WIPO Case No. D2007-1162.
Accordingly, the Panel finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights, and therefore, the Complainant has succeeded on this first element under the Policy.
In accordance with paragraph 4(a)(ii), the Complainant must prove that the Respondent has no rights or legitimate interests in respect of the disputed domain names. It is established in numerous panel decisions that it is difficult for a complainant to prove a negative and for that reason the Complainant is required to make out an initial prima facie case that the Respondent lacks rights or legitimate interests in a domain name, Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110. Once the Complainant makes a prima facie case, the burden of demonstrating rights or legitimate interests in the disputed domain name shifts to the Respondent. The Policy at paragraph 4(c) provides various ways in which a respondent may demonstrate rights or legitimate interests in the domain name. If the respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy.
The Panel notes that the Respondent registered the disputed domain name in 2004 long after the Complainant's registration of its trademark but more significantly after the trademark had gained a wide reputation and was known to Internet users. The Complainant asserts that the Respondent must have been aware of the Complainant's reputation at the time of registering the disputed domain name. In the Panel's opinion it can be reasonably inferred that the Respondent had knowledge of the Complainant's famous mark prior to the registration of the disputed domain name.
The Complainant states that the Respondent has no rights or legitimate interests in respect of the disputed domain name and that the Complainant has never granted the Respondent a licence or permission to use the mark. There is nothing in the record to suggest that the Respondent, or any business operated by him, is commonly known by the disputed domain name and in the absence of evidence there is nothing to suggest the Respondent has rights or legitimate interests in the disputed domain name. There is no evidence or suggestion that the Respondent has made any effort, or has any intention of using the domain name for any purpose or legitimate activity consistent with having rights or legitimate interests, this suggests that there is no intention of fair use and that the Respondent registered the domain name for commercial gain. The aforementioned is regarded as sufficient to satisfy the Complainant's requirement to demonstrate a prima facie case, Roust Trading Limited v. AMG LLC, WIPO Case No. D2007-1857.
The disputed domain name resolves in a page stating the domain is offered for sale as evidenced in Annex 4. Here, this provides concrete evidence that the disputed domain name was registered and is being used in bad faith and for commercial gain, not for any legitimate reason. Offering a domain name for sale may be considered a bona fide offering of goods and services only if it does not conflict with another's trademark rights and there are no other factors that would render such use non-legitimate, such as typosquatting. The Respondent in his advertisement for sale of the disputed domain name clearly states he is aware of Complainant's trademark, the success of its website, and in his Response openly admits that he intends to sell the disputed domain name for profit, it is obvious to this Panel that the Respondent has not established a legitimate interest or right in the disputed domain, Allocation Network GmbH v. Steve Gregory, WIPO Case No. D2000-0016.
The Panel finds that the Complainant has succeeded in making out a prima facie case that the Respondent lacks rights or legitimate interests. The requirements of 4(a)(ii) are fulfilled and consequently the Panel finds in favour of the Complainant on the second element of the Policy.
As stated above, it is clear to this Panel that by registering the disputed domain name which contains a slight misspelling of the Complainant's trademark whereby the letter “n” has been replaced with the letter “m”, the Respondent has engaged in a common form of typosquatting. It has been accepted in several previous panel decisions that typosquatting itself is evidence of bad faith registration and use, Longs Drug Stores California, Inc. v. Shep Dog, WIPO Case No. D2004-1069, General Electric Company v. Fisher Zvieli a/k/a Zvieli Fisher, WIPO Case No. D2000-0377.
The Respondent in its advertisement clearly states that the Complainant's website enjoys high Internet traffic and that several Internet users misspell the domain name erroneously entering the disputed domain name. The Respondent uses this information to promote the disputed domain name as an attractive purchase. The Panel concludes that this demonstrates the Respondent's intention when registering the domain name was to deliberately confuse Internet users and to profit from mistakenly diverted Internet traffic. This further supports the Panel's finding of the Respondent's bad faith use and registration of the disputed domain name as it follows that the Respondent, at the time of registration, must have been aware that any commercial use of the domain name would result in a violation of the Complainant's trademark rights, indicating that there was never an intention of good faith use, Telstra Corporation Limited. v. Nuclear Marshmallows, WIPO Case No. D2000-0003.
The fact that the Respondent is offering the disputed domain name for sale for “$5,000” a price obviously in excess of the Respondent's cost of registering the disputed domain name further demonstrates bad faith registration and use. It is well established that registration for the primary purpose of selling, renting, or otherwise transferring the domain name to the complainant who is the owner of the trademark or to a competitor of the complainant, for valuable consideration in excess of the documented out-of-pocket costs directly related to the domain name is evidence of bad faith, Ferrari S.p.A. v. Allen Ginsberg, WIPO Case No. D2002-0033.
In light of the aforementioned, the Panel finds that the Respondent registered and is using the disputed domain name in bad faith. Accordingly the Panel finds in favour of the Complainant on 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 <sahibimden.com> be transferred to the Complainant.
Dated: January 11, 2010