WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Mövenpick Holding AG v. kamer evrim emre
Case No. D2010-2006
1. The Parties
The Complainant is Mövenpick Holding AG of Cham, Switzerland, represented by B.M.G. Avocats, Switzerland.
The Respondent is kamer evrim emre of Ankara, Turkey.
2. The Domain Name and Registrar
The disputed domain name <moevenpick-ankara.com> is registered with IHS Telekom, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 22, 2010. On November 23, 2010, the Center transmitted by email to IHS Telekom, Inc. a request for registrar verification in connection with the disputed domain name. On IHS Telekom, Inc. transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on December 3, 2010.
The Center verified that the Complaint together with the amended 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 December 9, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was December 29, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 10, 2010.
The Center appointed Kaya Köklü as the sole panelist in this matter on January 17, 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.
Although the language of the Registration Agreement is in the Turkish language, the Panel determines in accordance with the Complainant’s request and the Rules 11(a), that the language of these administrative proceedings shall be the English language. The Panel finds that it would be inappropriate to conduct the proceedings in the Turkish language and request a Turkish translation of the Complaint while the Respondent has failed to raise any objection or even to respond to the Complaint or the Center’s communication with regard to the language of the proceedings, even though communicated in Turkish and in English. The Panel is convinced that the Respondent will not be prejudiced by a decision being rendered in English.
4. Factual Background
The Complainant is a well-known Swiss based holding company which controls several independently operating business units, including Mövenpick Hotels & Resorts, Mövenpick Restaurants, Mövenpick Wine and Mövenpick Fine Foods, collectively the Mövenpick Group.
The Mövenpick Hotels & Resorts, one of the Complainant’s subsidiaries, is a hotel chain operating a large number of hotels in various countries with a focus on Europe, Africa, the Middle East and Asia. In Turkey, there are currently two Mövenpick hotels located in Istanbul and Izmir.
As evidenced by the Complaint, the Complainant has worldwide numerous trademark registrations comprising the sign MÖVENPICK. In particular, it owns an international trademark registration for the word mark MÖVENPICK. This trademark registration is valid in numerous countries, including Turkey. It claims protection for a large variety of goods and services, in particular for any kind of accommodation services.
Furthermore, for each hotel of the Mövenpick Group, a domain name is registered which comprises the mark MÖVENPICK combined with the relevant name of the city or region where the hotel is located, e.g. <moevenpick-istanbul.com>.
Early in 2008 and then again in October 2010, there were press releases announcing the opening of the Mövenpick Hotel in Ankara in spring 2011.
The Respondent registered the disputed domain name <moevenpick-ankara.com> on March 4, 2009.
The Respondent seems to be an individual located in Ankara, Turkey.
When the Panel visited the disputed domain name on January 23, 2011, there was no content provided.
5. Parties’ Contentions
The Complainant argues that the trademark MÖVENPICK enjoys a worldwide reputation, especially in the countries where the Mövenpick Group operates hotels. It is alleged that the mark Mövenpick is also well-known in Turkey, in particular as the already existing Mövenpick hotel in Istanbul is regularly awarded by the World Travel Awards as the leading business hotel in Turkey and Europe.
As a remedy in these administrative proceedings, the Complainant requests the transfer of the disputed domain name.
The Complainant in particular points out that the disputed domain name is identical or at least confusingly similar to the Complainant’s trademarks as it fully incorporates the mark MÖVENPICK.
The Complainant argues that the only difference between the disputed domain name and the Complainant’s trademark is that the “ö” of the MÖVENPICK sign is replaced by its phonetically equivalent characters “oe”. The second element of the disputed domain name, “Ankara”, is alleged to be generic and purely descriptively as it shall designate a geographical location only.
Furthermore, the Complainant argues that the Respondent has no rights or legitimate interest in respect of the disputed domain name. Additionally, it is argued that the Respondent has registered and used the disputed domain name in bad faith. The Complainant is convinced that the Respondent must have known the MÖVENPICK trademark well before the registration of the disputed domain name. The Complainant believes that the Respondent has registered the disputed domain name in bad faith after the Complainant released the information that it would open a Mövenpick hotel in Ankara, Turkey.
In this regard, the Complainant underlines that it has never granted a permission or license to the Respondent to use the trademark MÖVENPICK.
In addition, it is alleged that the Respondent has never used and does not intend to use the mark MÖVENPICK in connection with a bona fide offering of goods or services.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 15(a) of the Rules, the Panel shall decide the Complaint in accordance with the Policy, the Rules and any other rules and principles of law that it deems applicable and on the basis of the Complaint where no Response has been submitted.
In accordance with paragraph 4(a) of the Policy, the Complainant is obliged to prove that each of the three following elements is satisfied:
(i) The disputed domain name is identical or confusingly similar to the trademark in which the Complainant has rights;
(ii) The Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) The disputed domain name has been registered and is being used in bad faith.
Paragraph 4(a) of the Policy states that the Complainant bears the burden of proving that all these requirements are fulfilled, even if the Respondent has not replied to the Complaint, Stanworth Development Limited v. E Net Marketing Ltd., WIPO Case No. D2007-1228.
However, concerning the uncontested information provided by the Complainant, the Panel may as appropriately accept the proved reasonable factual allegations in the Complaint as true, Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110.
In this regard, it is noted that an independent research by visiting the Internet site linked to the disputed domain name has been performed by the Panel. The competence of the Panel to perform such independent research is in line with previous UDRP decisions, e.g., Hesco Bastion Limited v. The Trading Force Limited, WIPO Case No. D2002-1038.
A. Identical or Confusingly Similar
The Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark MÖVENPICK.
First, the Panel confirms that the Complainant has satisfied the threshold requirement of having trademark rights regarding its sign MÖVENPICK. The Complainant has provided sufficient evidence showing that it owns a large number of MÖVENPICK trademarks in various jurisdictions worldwide. According to the current record, long-standing trademark protection is also given in Turkey, where the Respondent is apparently located.
Second, there is a confusing similarity between the Complainant’s mark MÖVENPICK and the disputed domain name as the disputed domain name fully incorporates the Complainant’s trademark MÖVENPICK.
The disputed domain name only differs from the respective trademark by the addition of the name of the Turkish capital city “Ankara” and the replacement of the character “ö” by “oe”.
In the Panel’s view, the replacement of “ö” by “oe” does not negate the confusing similarity between the Complainant’s trademark and the disputed domain name as it is customary to replace the phonetically identical “ö” by “oe” in case an umlaut is not available, e.g. when using an English version of a computer keyboard.
Further, the Panel finds that the incorporation of the term “Ankara” is purely descriptive and only refers to a designation of the geographical location. This addition can also not negate the confusing similarity. On the contrary, the full inclusion of the Complainant’s well-known trademark in combination with a geographical designation may even enhance the false impression that any offered product or service under the disputed domain name is officially linked to the Mövenpick Group. This is in particular the case as the domain names used by the Mövenpick Group are regularly structured in the same way.
In other words, the Panel is of the opinion that the disputed domain name which wholly incorporates the Complainant’s registered trademark MÖVENPICK is sufficient to establish confusing similarity for the purpose of the Policy (see Kabushiki Kaisha Hitachi Seisakusho (d/b/a Hitachi Ltd.) v. Arthur Wrangle, WIPO Case No. D2005-1105).
Given the findings above, the Panel concludes that the first requirement under paragraph 4(a) of the Policy is fulfilled.
B. Rights or Legitimate Interests
The Panel further finds that the Respondent has not demonstrated any right or legitimate interest in the disputed domain name.
While the burden of proof in principle remains with the Complainant, the Panel recognizes that this would result in the impossible task of proving a negative, in particular as the evidence needed to show the Respondent’s lack of rights or legitimate interests is primarily within the knowledge and sphere of the Respondent. Therefore, the Panel agrees with prior UDRP panels that the Complainant is only required to make out a prima facie case before the responsibility shifts to the Respondent to show that it has rights or legitimate interests in the disputed domain name in order to meet the requirements in paragraph 4(a)(ii) of the Policy, Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455.
The Panel finds that the Complainant has satisfied this requirement, while the Respondent has failed to file any evidence or arguments to demonstrate a right or legitimate interest in the disputed domain name according to the Policy, paragraphs 4(a)(ii) and 4(c).
The Complainant has provided uncontested prima facie evidence that the Respondent has no trademark, license or any similar right to use the Complainant’s mark in the disputed domain name.
In the absence of a Response by the Respondent, there is also no indication in the file that the Respondent is commonly known by the disputed domain name. This is in particular indicated as there was no content provided under the disputed domain name so far.
In addition, the Respondent has failed to demonstrate any of the other nonexclusive circumstances evidencing rights or legitimate interests under the Policy, paragraph 4(c) or any other evidence of a right or legitimate interest in the disputed domain name. In particular, the Respondent has failed to show that the disputed domain name has been used in connection with a bona fide offering of goods or services.
Finally, there is also no indication that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name without the intent for commercial gain to misleadingly divert users or to tarnish the MÖVENPICK trademark.
Hence, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
The Panel is further of the opinion that the Respondent has registered and is using the disputed domain name in bad faith.
The Panel is well aware of the reputation and recognition of the Complainant’s trademark MÖVENPICK. The Panel is convinced that the Respondent must have known of this trademark when he registered the disputed domain name. This is in particular likely as the disputed domain name has been registered well after the Complainant’s trademark MÖVENPICK has become recognized in the world and in Turkey, where the Mövenpick Group already operates two awarded hotels and where the Respondent is apparently located.
A further indication of the Respondent’s bad faith is that the disputed domain name is structured in the same way as the other domain names used by the Mövenpick Group in relation to its hotels so far (i.e..“moevenpick” + “location”.com). According to the provided evidence in the current record, the Panel is convinced that the Respondent has intentionally registered the disputed domain name in order to either block the Complainant from registering a domain name that it would need in the near future or to mislead Internet users and divert Internet traffic in order to gain pay-per-click revenue as soon as the Complainant starts to operate its new hotel in Ankara. This assessment is supported by the fact that the Respondent registered the disputed domain name shortly after the Complainant released the information that it would open a new Mövenpick hotel in Ankara, Turkey.
Furthermore, the Panel finds that the Respondent’s failure to respond to the Complaint additionally supports the conclusion that it has registered and used the disputed domain name in bad.
In light of the above, the Panel cannot conceive of any good faith use of the disputed domain name by the Respondent.
The Panel therefore concludes that the disputed domain name is registered and used in bad faith and that the Complainant has also satisfied the third element of the Policy, namely, 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, <moevenpick-ankara.com> be transferred to the Complainant.
Dated: January 31, 2011