The Complainant is Çiçeksepeti Çiçekçilik ve Turizm Limited Şirketi of Istanbul, Turkey, represented by Gür Law & IP Firm, Turkey.
The Respondent is PrivacyProtect.org, Domain Admin / SiyahinciÇiçekçilik, Nebi Dağdelen of Istanbul, Turkey, self represented.
The disputed domain names <ciceksepetiniz.com> and <ciceksepetiniz.net> are registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 25, 2010. On January 26, 2010, the Center transmitted by email to Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com a request for registrar verification in connection with the disputed domain names. On January 27, 2010, Directi Internet Solutions 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. 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 February 5, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was February 25, 2010. The Response was filed with the Center on February 24, 2010.
The Center appointed Dilek Ustun as the sole panelist in this matter on March 3, 2010. 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 is a leading company that provides goods and services in the area of floriculture since its establishment in 2000.
The domain name <ciceksepeti.com> is registered in the name of the Complainant Çiçeksepeti Çiçekçilik Tur Ltd. Şti. on April 12, 2002 in order to sell and advertise goods and services under the company's website.
Çiçeksepeti Çiçekçilik ve Turizm Limited Şirketi has registered its trademark ÇİÇEKSEPETİ with the registration number 2008/11725, registered on March 3, 2008 in classes 29, 30, 31, 35 and 44 before the Turkish Patent Institute.
The disputed domain names were first registered on May 27, 2008 (as indicated by the Registrar and by the “creation date” in the WhoIs record).
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 names are confusingly similar to its ÇİÇEKSEPETİ mark. The Complainant notes in this respect that its trademark is wholly incorporated in the disputed domain names. 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 Complainant asserts that the Respondent has no rights or legitimate interests in the disputed domain names. The Complainant's trademark is well-known, therefore it can be inferred that the Respondent has sought to profit from the goodwill in this mark.
The Complainant asserts that the disputed domain names were registered and are being used in bad faith. According to the Complainant, the Respondent is using domain names which are confusingly similar to their trademark to display website content concerning the goods of flowers, which gives rise to confusion and diverts the attention of customers by utilizing the esteem of their company and the trademark ÇİÇEKSEPETİ.
The Complainant also indicated that it has applied to the “DNS Working Group” for the cancellation of the Respondent's domain name <ciceksepetiniz.com.tr>. The DNS Working Group has cancelled the Respondent's .tr domain name.
In response to the notification of this dispute the Respondent sent an email which has been accepted as the Respondent's Response. Other than this communication the Respondent did not file a formal Response to the Complaint.
In its email correspondence, the Respondent confirms that it has been the owner of the disputed domain names since May 2008. The Respondent states that the Complainant cannot claim rights in the disputed domain names solely because they are similar to their trademark. The Respondent also rejects that the Complainant's assertions regarding bad faith.
This Complaint is based on the ÇİÇEKSEPETİ trademark which is a registered trademark of the Complainant.
Proof of ownership of a registered trademark or service mark is sufficient for the showing of rights required by a complainant for the purposes of paragraph 4(a)(i) of the Policy. In addition, the Complainant relies on the distinctiveness of its mark in Turkey.
Consequently, the Panel finds that the disputed domain names <ciceksepetiniz.com> and <ciceksepetiniz.net> which fully incorporate the Complainant's trademark with only the addition of “niz”, are confusingly similar to the trademark in which the Complainant has rights and the Complainant has met the requirements of the first element 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 trademark 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 trademark or service mark at issue.
Viewing this situation in light of paragraph 4(c) of the Policy, there is no evidence in the record that the Respondent has been commonly known by the disputed domain names.
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 disputed domain names. The Complainant showed that the Respondent has neither a license nor any other permission to use the disputed domain names and the Respondent has not made a noncommercial or fair use of the domain names. Therefore, the Panel finds that the Complainant has made a prima facie showing that the Respondent has no rights or legitimate interests in the disputed domain names, which the Respondent has not successfully rebutted.
The Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain names, and that the Complainant has satisfied the second element under paragraph 4(a) of the Policy.
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 names is to misleadingly divert consumers to a webpage at “www.cicekpostasi.com” which appears to offer goods and services in the same business as the Complainant as indicated on its website at “www.ciceksepeti.com”.
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 names, it is likely the Respondent, residing in Turkey, knew that ÇİÇEKSEPETİ was the trademark of the Complainant. It registered the disputed domain names because they would be recognized as relating to the Complainant's mark and business.
The Panel, in accordance with previous decisions issued under the Policy, is of the opinion that the likelihood of actual knowledge of a complainant's trademark at the time of the registration of the disputed domain names 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).
Considering all of the circumstances, the Panel finds that the Respondent has used the disputed domain names with the intent to create a likelihood of confusion with the Complainant's mark to attract for commercial gain, Internet users to its on-line location. Such use in the circumstances constitutes bad faith under paragraph 4(b)(iv) of the Policy. Additionally, since the Complainant's “www.ciceksepeti.com” is very well-known, Internet users seeking to use that website are attracted to the Respondent's confusingly similar website with a similar purpose.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain names <ciceksepetiniz.com> and <ciceksepetiniz.net> be transferred to the Complainant.
Dated: March 17, 2010