WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Dan Pal v. Mr. Mehmet Gurbuz/PrivacyProtect.org
Case No. D2010-1429
1. The Parties
The Complainant is Dan Pal of Upper Galilee, Israel, represented by Soroker - Agmon, Advocates & Patent Attorneys, Israel.
The Respondent is Mr. Mehmet Gurbuz/PrivacyProtect.org of Izmir, Turkey and Moergestel, Netherlands, respectively.
2. The Domain Name and Registrar
The disputed domain name <danpalon.net> is registered with FBS Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 25, 2010. On August 25, 2010, the Center transmitted by email to FBS Inc. a request for registrar verification in connection with the disputed domain name. On August 27, 2010, FBS 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 September 28, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was October 18, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 19, 2010.
The Center appointed Dilek Ustun as the sole panelist in this matter on October 29, 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.
In accordance with paragraph 11 of the Rules, the Panel has determined the language of proceedings shall be English, taking account of the circumstances of the case, and noting specifically that the Respondent did not object to the Complainant’s language request. As such, the Panel does not find that any prejudice would occur if the language of proceedings were to be English and in light of the specifics of this case, such language selection is indeed appropriate.
4. Factual Background
The Complainant, Dan Pal is an Israeli based partnership, founded in 1960 and located at the North of Israel. The Complainant specializes in the development and production of transparent polycarbonate panels and profile systems with high thermal insulation values. In 1982, the Complainant invented a polycarbonate modular panel which it named DANPALON.
The Complainant is the owner of multiple trademark registrations around the world which contain the DANPALON trademark and has also developed a presence on the Internet and is the owner of the following domain names, which contain the name “Danpalon”: <danpalon.com> and <danpalon.co.il> .
The disputed domain name was created on November 5, 2008.
5. Parties’ Contentions
According to the Complainant, the disputed domain name <danpalon.net> is identical or confusingly similar to the registered trademark DANPALON, which has been registered by the Complainant as a trademark and domain names in numerous countries all over the world.
Also, the addition of the top-level domain (TLD) “.net” does not have any impact on the overall impression of the dominant portion of the domain name and is therefore irrelevant in determining the confusing similarity of the domain name to the trademark.
The Complainant asserts that the Respondent has no rights or legitimate interests in respect of the disputed domain name. In support of this allegation, the Complainant states that the Respondent has never been known by this name, and the Complainant adds that the Complainant has never licensed or otherwise permitted the Respondent use its trademarks or to register any domain name containing the above-mentioned trademark.
The domain name was registered and is being used in bad faith.
The Complainant stated that the Respondent is using the disputed domain name to intentionally attempt to attract, for commercial gain, Internet users to the website, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of its website.
According to the Complainant, the Respondent is trying to sponge off the Complainant’s world famous trademarks.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Paragraph 15(a) of the Rules requires the Panel to 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.
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.
A. Identical or Confusingly Similar
The Complainant has registered the trademark DANPALON as a trademark in several countries all over the world. The trademark DANPALON was registered long before the registration of the disputed domain name. The Complainant has also registered the trademark DANPALON as a domain name.
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.
Additionally, as the Respondent is in default, it has brought no argument to support the contention that the disputed domain name is not identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
Therefore, the Panel finds that the requirement of paragraph 4(a)(i) of the Policy is met.
B. Rights or Legitimate Interests
The Respondent has not provided any evidence of the type specified in paragraph 4(c) of the Policy, or of 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 and has not rebutted the Complainant’s prima facie case. Nor has the Respondent shown that it has been commonly known by the disputed domain name. The Complainant showed, inter alia, 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 DANPALON 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 disputed domain name.
C. Registered and Used in Bad Faith
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.
Based on the circumstances, in the Panel’s view, it is reasonable to infer that when the Respondent registered the disputed domain name, he likely knew that the domain name incorporated 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, 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 disputed domain name is connected to a website displaying the name KGB Petrol Ürünleri Pazarlama İnşaat Taahhüt Ticaret Ltd.Şti., where pictures of similar goods to those of the Complainant are displayed.
Thus it is obvious to this Panel that by using the disputed domain name, the Respondent has intentionally attempted to attract for commercial gain, Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website. 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, <danpalon.net> be transferred to the Complainant.
Dated: November 19, 2010