The Complainant is D-Market Elektronik Hizmetler Ve Ticaret Anonim Şirketi of Istanbul, Turkey, represented by Dericioğlu & Yaşar Law Office, Turkey.
The Respondent is NA, NA of Marmara, Turkey.
The disputed domain name <e-hepsiburada.com> is registered with GoDaddy.com, Inc.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 19, 2010. On March 22, 2010, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the disputed domain name. On March 22, 2010, 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 March 26, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was April 15, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 19, 2010.
The Center appointed Dilek Ustun as the sole panelist in this matter on April 23, 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 well-known and recognized over the past years in the sector with the term “HEPSİBURADA.COM”, which is an e-commerce platform throughout Turkey.
The Complainant owns the trademark HEPSİBURADA.COM, which was registered with the number 2000 20142 effective from September 22, 2000.
The domain names <hepsiburada.com> and <hepsiburada.com.tr> were registered by the Complainant respectively on July 04, 2000 and May 09, 2003.
The disputed domain name was first registered on October 23, 2007 (as indicated by the Registrar and by the “creation date” in the WhoIs record).
(i) The Complainant states that they have prior rights on the term “HEPSİBURADA.COM” and the disputed domain name is confusingly similar to the Complainant's mark HEPSI BURADA.COM as it incorporates this mark in its entirety. HEPSİBURADA.COM is a trademark and domain name identified with the Complainant, which has been used for years. The trademark and domain name HEPSİBURADA.COM is known by consumers of all ages. It is directly identified with the Complainant as soon as it is seen or heard and has reached a level of recognition that could have been achieved by only a few trademarks and domain names.
(ii) The Respondent has no rights or legitimate interests in respect of the domain name. There is no evidence, which suggests that the Respondent trades under or is commonly known by said domain name or the name “hepsiburada”, or is making a legitimate non-commercial or fair use of the domain name.
(iii) The Respondent has registered and is using the domain name in bad faith.
The Respondent did not reply to the Complainant's contentions.
Paragraph 15(a) of the Rules requires the Panel to decide a Complaint on the basis of the statements and documents submitted in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
Under paragraph 4(a) of the Policy, the Complainant bears the burden of showing:
(i) that the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) that the Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) that the domain name has been registered and is being used by the Respondent in bad faith.
This Complaint is based on the HEPSIBURADA.COM trademark which is a registered trademark of the Complainant.
According to the Complaint, the Complainant has been using the trademark HEPSIBURADA.COM since 2000. In addition, the Complainant may rely on the distinctiveness of its mark in Turkey.
The Panel concurs with the opinion of several prior UDRP panels which have held that, when a domain name wholly incorporates a complainant's registered mark that may be sufficient to establish confusing similarity for purposes of the Policy. See, e.g., Kabushiki Kaisha Hitachi Seisakusho (d/b/a Hitachi Ltd) v. Arthur Wrangle, WIPO Case No. D2005-1105; Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903; Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr., WIPO Case No. D2000-1525; Eauto, L.L.C. v. Triple S. Auto Parts d/b/a Kung Fu Yea Enterprises, Inc., WIPO Case No. D2000-0047; Bayerische Motoren Werke AG v. bmwcar.com, WIPO Case No. D2002-0615.
Finally, Respondent has brought no argument in support of his contention that the disputed domain name is not identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
Consequently, the Panel finds that the domain name <e-hepsiburada.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.
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 interests in the disputed 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 disputed domain name. The Panel finds that the Complainant has made a prima facie case that the Respondent lacks right or legitimate interests, and the Respondent has failed to demonstrate such rights or legitimate interests. The Panel finds that given the use made of the disputed domain name, when the Respondent registered the disputed domain name it knew that HEPSIBURADA.COM was the trademark of the Complainant. It registered the disputed domain name because it would be recognized as such.
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 and use, however, such list is not exhaustive and a finding of bad faith depends on the circumstances of each case.
Based on the circumstances, in the Panel's view, it is reasonable to infer that when the Respondent registered the disputed domain name, it knew that the name was the trademark of the Complainant. The Panel, in accordance with previous decisions issued under the Policy, is of the opinion that this knowledge may be considered as both a precondition and in appropriate cases also an indication of bad faith (see Parfums Christian Dior v. Javier Garcia Quintas and Christiandior.net, WIPO Case No. D2000-0226).
The fact that the domain is currently inactive or resolves to a registrar-provided pay-per-click parked page with links to competing goods or services does not prevent the Respondent from being in bad-faith. The act of keeping a domain name in an inactive state can constitute “bad faith”, where the domain name comprises a name which can only sensibly refer to the complainant or where there is no obvious possible justification for the selection of the domain name (see Sony Kabushiki Kaisha v. sony.net, WIPO Case No. D2000-1074 and Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003).
The Panel finds that the Respondent willingly produced false or incomplete contact information for the Registrar's database. The Panel agrees that the Respondent provided false contact information mainly for the purpose of remaining unreachable by all ways other than possibly emails. While not an express ground of bad faith under paragraph 4(b), false contact information is widely recognized as an indication of bad faith in domain name registration. The Panel has confirmed the conclusion of other UDRP panels: that the address provided by Respondent has no apparent connection to the Respondent. Grupo Televisa, S.A. v. Party Night, Inc. a/k/a Peter Carrington, WIPO Case No. D2003-0796; Wachovia Corporation v. Peter Carrington, WIPO Case No. D2002-0775.
In view of the above, the Panel finds that the Respondent has registered and used the disputed domain name in bad faith, in accordance with paragraph 4(a)(iii) 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-hepsiburada.com> be transferred to the Complainant.
Dated: May 10, 2010