World Intellectual Property Organization

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Özdilek Alşveriş Merkezleri Ve Tekstil Sanayi Anonim Şirketi v. Ömer Ersan

Case No. D2010-2280

1. The Parties

The Complainant is Özdilek Alışveriş Merkezleri Ve Tekstil Sanayi Anonim Şirketi of Maslak Istanbul, Turkey represented by Başalan Patent & Trade Mark Industrial Property Services Consultancy Limited Company, Turkey.

The Respondent is Ömer Ersan, Bursa, Merkez, Bursa of Turkey.

2. The Domain Name and Registrar

The disputed domain name <ozdilek.com> is registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 28, 2010. On December 29, 2010, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 30, 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 January 7, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was January 27, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 28, 2011.

The Center appointed Dilek Ustun Ekdial as the sole panelist in this matter on February 9, 2011. 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, Özdilek Alışveriş Merkezleri ve Tekstil Sanayi A.Ş. is Turkey’s one of the biggest shopping centers and companies. It is the registered proprietor of number of service and trademark mark registrations of or comprising its name OZDILEK, since at least 2002.

The disputed domain name <ozdilek.com> was registered on January 1, 1998, according to the concerned registrar’s WhoIs database, and registered by the current registrant on January 3, 2009, according to the Registrar information.

Since April 28, 1997 OZDILEK is the legal owner of the domain name <ozdilek.com.tr> and is still using this domain name legally.

“Ozdilek” is also the trade name of the Complainant.

5. Parties’ Contentions

A. Complainant

The Complainant contends that the disputed domain name is identical to its OZDILEK trade/service mark, that the Respondent has no rights or legitimate interests in respect of the disputed domain name and that the disputed domain name was registered and is being used in bad faith.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

Paragraph 4(a) of the Policy requires that the Complainant prove each of the following three elements to obtain a decision that a domain name should be either cancelled or transferred:

(i) 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) The Respondent has no rights or legitimate interests with respect to the domain name; and

(iii) The domain name has been registered and is being used in bad faith.

Paragraph 4(b) of the Policy sets forth four situations under which the registration and use of a domain name is deemed to be in bad faith, but does not limit a finding of bad faith to only these situations.

A. Identical or Confusingly Similar

The disputed domain name <ozdilek.com> is identical to the Complainant’s ÖZDİLEK/OZDILEK mark.

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 any contention that the disputed domain name would not be 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 OZDILEK 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.

The examples of bad faith registration and use set forth in paragraph 4(b) of the Policy are not meant to be exhaustive of all circumstances from which such bad faith may be found. See Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003.

The Panel considers it an inescapable conclusion from the undisputed facts and circumstances reflected in the record that the Respondent knew of and had in mind the Complainant’s marks when registering the disputed domain name. See generally Ticketmaster Corporation v. Spider Web Design, Inc., WIPO Case No. D2000-1551. As noted in Research In Motion Limited v. Dustin Picov, WIPO Case No. D2001-0492, when a domain name is so obviously connected with a complainant, the very use of the domain name by a registrant with no connection to the complainant suggests “opportunistic bad faith”. See also Paule Ka v. Paula Korenek, WIPO Case No. D2003-0453. In view of the foregoing, and for reasons discussed as well under the preceding heading, the Panel can ascribe no motive for the Respondents’ registration and use of the disputed domain name as reflected in the record except to trade on the goodwill associated with the Complainant’s marks.

The Respondent’s bad faith is also shown by its use of the domain name or lack thereof. The Respondent has placed no content on the site at “www.ozdilek.com” that relates to a business or has been created by the Respondent.

Accordingly, the Panel finds that the Complainant has satisfied the requirements of 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, <ozdilek.com> be transferred to the Complainant.

Dilek Ustun Ekdial
Sole Panelist
Dated: February 16, 2011

 

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