World Intellectual Property Organization

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Sahibinden Bilgi Teknolojileri Paz.ve Tic. v. Registrant [3431648]: Kemal Demircioglu / Moniker Privacy Services

Case No. D2010-2033

1. The Parties

The Complainant is Sahibinden Bilgi Teknolojileri Paz.ve Tic. of Istanbul, Turkey, of represented internally.

The Respondent is Registrant [3431648]: Kemal Demircioglu / Moniker Privacy Services, Istanbul, Turkey and Florida, United States of America.

2. The Domain Name and Registrar

The disputed domain name <sahıbınden.com> [xn--sahbnden-vkbb.com] is registered with Moniker Online Services, LLC.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 23, 2010. On November 24, 2010, the Center transmitted by email to Moniker Online Services, LLC. a request for registrar verification in connection with the disputed domain name. On November 25, 2010, Moniker Online Services, LLC. 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. The Center sent an email communication to the Complainant on November 26, 2010 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on December 1, 2010.

The Center verified that the Complaint together with the amendment to 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 December 2, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was December 22, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 23, 2010.

The Center appointed Kaya Köklü as the sole panelist in this matter on December 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.

4. Factual Background

The Complainant is a Turkish corporate entity, which runs an e-commerce web portal in Turkey since the year 2001. Its portal <sahibinden.com> is a well-known online marketplace for various kinds of goods and services in Turkey.

In the year 2000, the Complainant registered the trademark SAHIBINDEN in Turkey for the first time. Since then, the Complainant has registered several further trademarks related to SAHIBINDEN. Such trademarks include the mark SAHIBINDEN.COM.

Furthermore, the Complainant has registered and operates its trademark SAHIBINDEN as a domain name under <sahibinden.com> for its commercial marketplace.

It is noted that “sahibinden” is a Turkish term standing for “from the owner” in the English language.

The original Respondent was Moniker Privacy Services, but the Registrar subsequently disclosed that the Registrant of the disputed domain name is Kemal Demircioglu from Istanbul, Turkey.

According to the current record, the disputed domain name <sahıbınden.com> [xn--sahbnden-vkbb.com] was created on May 5, 2004.

5. Parties’ Contentions

A. Complainant

The Complainant argues that it operates the leading Turkish e-commerce marketplace with more than one million registered users and nearly 500,000 daily visitors. It is alleged that the trademark SAHIBINDEN enjoys substantial goodwill and a valuable reputation among the Turkish community.

Based on the following, the Complainant requests the transfer of the disputed domain name.

The Complainant argues that the disputed domain name is confusingly similar to the Complainant’s trademark rights in the sign SAHIBINDEN as the only difference is a change of the character “i” by “ı", both characters of the Turkish alphabet. The Complainant believes that, well aware of the Complainant’s trademark rights, the Respondent deliberately registered the disputed domain name with only a minor change of the characters. In the Complainant’s view, this is a strong indication for typosquatting.

Furthermore, the Complainant asserts that the Respondent has no rights or legitimate interests in the disputed domain name and must have registered and used the disputed domain name in bad faith. In this regard, it is stated that the Complainant has never granted a license, consent or any other right by which the Respondent would have been entitled to register or use the disputed domain name <sahıbınden.com> [xn--sahbnden-vkbb.com].

In addition, the Complainant believes that the Respondent has never used and does not intend to use the disputed domain name with a bona fide offering of goods or services. The Complainant rather asserts that the sole reason for registering and using the disputed domain name is to create confusion among users who are searching for the Complainant’s web site and by this, gain pay-per-click advertising revenue.

Finally, the Complainant has no doubts that the Respondent must have known the Complainant and its trademark SAHIBINDEN well before the registration of the disputed domain name.

B. Respondent

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 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; and

(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 been 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 appropriately accept the provided 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 on January 7, 2011. 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 <sahıbınden.com> [xn--sahbnden-vkbb.com] is confusingly similar to the Complainant’s trademarks.

First, the Panel confirms that the Complainant has satisfied the threshold requirement of having trademark rights regarding the term SAHIBINDEN. Although the term SAHIBINDEN is a rather generic Turkish word standing for “from the owner” in the English language, over the years this term has become a well-known and distinctive trademark of the Complainant used for its Turkish marketplace operated under its web site “www.sahibinden.com (also confirmed by other UDRP panels, e.g. in Taner Aksoy v. Mesut Lacin, WIPO Case No. D2010-0560). In addition to the provided evidence in the Complaint, the Panel has also conducted an independent research in the Turkish trademark registers and can further confirm that, as stated in the Complaint the Complainant is the registered owner of several word and figurative marks granted by the Turkish Patent Institute for the term SAHIBINDEN since October 2000. These trademarks in particular cover protection for various kinds of goods and services, especially for advertisements, commercial offers, consumer relations etc.

Second, the disputed domain name is confusingly similar to the Complainant’s trademark SAHIBINDEN as it differs from the mark SAHIBINDEN merely by the replacement of the character “i” by “ı”. In the Turkish alphabet, “i” and “ı” are two different letters. However, the Panel who is familiar with the Turkish language finds that both letters are not only virtually but also phonetically highly similar and can very easily be confused.

The replacement of single letters – in particular if both letters are virtually and potentially very similar to each other – is commonly assessed as typosquatting. Typosquatting is a special form of cybersquatting which relies on mistakes or typographical errors made by Internet users when typing a domain name address into an Internet browser or search engine. In case of such a typographical error while entering a web site’s address, the user is led to an alternative address operated by the typosquatter.

Typosquatting is regularly regarded in UDRP decisions as creating domain names confusingly similar to the relevant mark in question, e.g. Edmunds.com, Inc. v. Digi Real Estate Foundation, WIPO Case No. D2006-1043; Humana Inc. v. Cayman Trademark Trust, WIPO Case No. D2006-0073; ACCOR v. Birgit Klostermann, WIPO Case No. D2005-0627.

In the present case, the replacement of “i” by “ı” does not significantly affect the appearance or pronunciation of the disputed domain name in relation to the Complainant’s mark SAHIBINDEN. The Panel concludes that the minor differences between the disputed domain name and the Complainant’s mark are not sufficient to negate the confusing similarity for the purposes of the Policy.

According to the aforementioned considerations, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s mark SAHIBINDEN and therefore concludes that the first requirement under paragraph 4(a) of the Policy is fulfilled.

B. Rights or Legitimate Interests

The Panel further concludes that the Respondent has not demonstrated any right or legitimate interest in the disputed domain name.

While the burden of proof remains with the Complainant, the Panel has recognized 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 of the Respondent. Therefore, the Panel agrees in line with prior UDRP panels that the Complainant is 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 of 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 – in absence of a response — has failed to provide any evidence or arguments in order to demonstrate a right or legitimate interest in the disputed domain name, according to the Policy, paragraph 4(a)(ii) and 4(c).

With its Complaint, 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.

The Respondent has failed to demonstrate any of the three 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.

It is noted that the Panel is well aware of the Turkish language and the fact that in principle, one could use the term “sahibinden” in a descriptive way, as e.g. as assessed by another UDRP panel in Taner Aksoy v. Mesut Lacin, WIPO Case No. D2010-0560. However, this does not apply for the present case.

By using the grammatically wrong characters of the Turkish alphabet in the disputed domain name, it is indicated that the Respondent does not want to use the term “sahibinden” in a descriptive way but rather tries to create a close link between the disputed domain name and the Complainant’s trademark in order to gain commercial benefit by misleading users. The Panel is convinced that the Respondent tries to commercially benefit from clicks on its web site linked to the disputed domain name by misleading Internet users caused by typographical errors when entering the Complainant’s web site address into an Internet browser. This view is supported by the fact that on its web site linked to the disputed domain name, the Respondent provides several links to commercial offers, apparently so-called pay-per-click advertisements (Annex 5 of the Complaint).

Last but not least, there is also no indication in the current record that the Respondent is commonly known by the disputed domain name.

According to the assessment above, the Panel finds that the Complainant has also 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 used the disputed domain name in bad faith.

First, the Panel is convinced that the Respondent was well aware of the Complainant’s trademark rights when registering the disputed domain name. This is apparently the case as the disputed domain name was registered a couple of years after the Complainant’s trademark SAHIBINDEN had become well-known in Turkey. As the Respondent seems to be located in Turkey, the Panel cannot conceive that the Respondent did not know the Complainant’s trademark when registering the disputed domain name.

In the Panel’s view, it appears that the Respondent has registered and used the disputed domain name for the sole purpose of creating an association with the Complainant, in particular with its marketplace operated under <sahibinden.com>. The way of typosquatting as practiced by the Respondent in the present case apparently intends to result in the diversion of Internet traffic from the Complainant’s site to the Respondent’s site. This is in particular the case as the record suggests that the Respondent has operated a web site linked to the disputed domain name in order to generate pay-per-click advertising revenue by misleading users (Annex 5 of the Complaint).

The Panel finds that attracting Internet traffic by such a prototypical case of typosquatting is a strong indication for bad faith registration and use under paragraph 4(b)(iv) of the Policy.

A further indication for the Respondent’s bad faith registration of the disputed domain name is the fact that the disputed domain name has been registered via Moniker Privacy Services, a corporation which seems to register domain names on behalf of third parties without initially disclosing the real identity of the registrants.

Finally, the Panel finds that the Respondent’s failure to provide a response to the Complaint additionally supports the conclusion that it has registered and used the disputed domain name in bad faith in order to mislead Internet users.

The Panel therefore concludes that the disputed domain name was registered and is being 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.

7. Decision

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 <sahıbınden.com> [xn--sahbnden-vkbb.com] be transferred to the Complainant.

Kaya Köklü
Sole Panelist
Dated: January 12, 2011

 

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