WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
LG Corp. v. Telmar Iletisim Sistemleri Ltd.
Case No. D2011-1150
1. The Parties
The Complainant is LG Corp. of Seoul, Republic of Korea, represented by Dericioğlu & Yaşar Law Office, Turkey.
The Respondent is Telmar Iletisim Sistemleri Ltd. of Istanbul, Turkey.
2. The Domain Name and Registrar
The disputed domain name <lgklima.org> is registered with GoDaddy.com, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 7, 2011. On July 7, 2011, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the disputed domain name. On July 9, 2011, 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 July 18, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was August 7, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 8, 2011.
The Center appointed Kaya Köklü as the sole panelist in this matter on August 15, 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.
In accordance with the Rules, paragraph 11, and since the Parties have not agreed otherwise, the language of the administrative proceedings is the language of the Registration Agreement (i.e. English).
4. Factual Background
The Complainant is a technology focused company with its principal office in the Republic of Korea. The Complainant was established in the year 1958 and belongs the worldwide leading manufacturers of products in the fields of home entertainment, mobile communications, home appliances, air conditioning and energy solutions. The Complainant is well known in many industrial countries, also in Turkey.
The Complainant is further the registered owner of a large number of trademarks comprising the sign LG. There are trademark registrations in nearly all industrialized countries worldwide. The first trademark registration in Turkey dates back to the year 1995. Since then, the Turkish Patent Institute has registered several trademarks of the Complainant comprising the sign and corporate logo LG, claiming protection for various goods and services, including but not limited to air conditioning and respective equipment.
Further to its trademark rights, the Complainant has registered and operates several domain names with various level variants and combinations, in particular <lg.com>.
The Respondent is a company located in Istanbul, Turkey. Further information on the Respondent is not known. However, the disputed domain name <lgklima.org> was first registered on March 11, 2009. According to the information provided by the Registrar, it was registered to the Respondent on April 18, 2011.
5. Parties’ Contentions
The Complainant argues that it is a global leader and technology innovator in consumer electronics, mobile communications and home appliances, employing more than 93,000 people working in over 120 countries around the world. It is further asserted that the Complainant had a global turnover of USD 48.2 billion in the year 2010.
Concerning its trademark portfolio, the Complainant alleges to own more than 4,000 trademark registrations and applications worldwide comprising the sign LG. In the Complainant’s view, the large number of trademark registrations establishes the basis for serial trademark protection concerning the sign LG.
As a remedy in these administrative proceedings, the Complainant requests the transfer of the disputed domain name for the following reasons:
The Complainant in particular points out that the disputed domain name is identical or at least confusingly similar to its trademarks as it fully incorporates the sign LG, added only by the descriptive Turkish term “klima”, which is “air condition” in the English language. The addition of such descriptive term shall in the view of the Complainant not prevent the likelihood of confusion between the disputed domain name and the Complainant’s LG trademarks.
Furthermore, the Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name. It is underlined by the Complainant that it has never granted a permission or license to the Respondent to use any of the LG trademarks. The Complainant is rather of the opinion that the Respondent intentionally tries to mislead Internet users by creating the impression of an authorized connection to the Complainant and its air condition products.
Finally, the Complainant alleges that the Respondent must have known the Complainant and its LG trademarks well before the registration of the disputed domain name. Hence, the Complainant concludes that the Respondent must have registered and is using the disputed domain name in bad faith. In this regards, it is further alleged that the Respondent has never used and does not use the mark LG in connection with a bona fide offering of goods and/or services. It is rather asserted that the Respondent purely uses the disputed domain name to gain unlawful commercial benefit from diverting Internet users, which are seeking for official information on LG air condition products.
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 must 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 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 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 a limited independent research, by visiting the Internet site linked to the disputed domain name has been performed by the Panel on August 20, 2011. The competence of the Panel to perform such independent research is in line with previous UDRP decisions (see, e.g. Hesco Bastion Limited v. The Trading Force Limited, WIPO Case No. D2002-1038).
Further is noted that the Panel has taken note of the second edition of the WIPO Overview of Panel Views on Selected UDRP Questions (“WIPO Overview 2.0”) and, where appropriate, will decide consistent to the WIPO Overview 2.0.
A. Identical or Confusingly Similar
The Panel finds that the disputed domain name <lgklima.org> is confusingly similar to the Complainant’s LG trademarks.
First, the Panel acknowledges that the Complainant is the registered owner of the mark LG in a large number of jurisdictions, covering trademark protection for various goods and services, including but not limited for air condition products and equipment. According to the current record, longstanding trademark protection is also given in Turkey, where the Respondent apparently has its principal office.
Second, the Panel finds that the disputed domain name is confusingly similar to the trademark LG due to the following reasons.
Although not identical, the disputed domain name <lgklima.org> fully incorporates the trademark LG. The only possibly relevant difference is the addition of the generic Turkish term “klima”, which is “air condition” in the English language.
In the Panel’s view, the addition of a content-related generic term like “klima” does not negate the confusing similarity between the Complainant’s LG trademark and the disputed domain name. The Panel finds that the incorporation of the term “klima” is rather descriptive and does not create a new distinctiveness separate from the Complainant’s LG trademarks. Quite the opposite, the Panel believes that the full inclusion of the Complainant’s trademark in combination with some content-related generic terms may even enhance the false impression that the Internet site linked to the disputed domain name is somehow authorized or officially linked to the Complainant or its group members.
Bearing in mind the prominence of the sign LG, the Panel concludes that the disputed domain name is likely to confuse Internet users into their believing that the disputed domain name is affiliated or endorsed by the Complainant or that the use of the disputed domain name is at least authorized by the Complainant.
Last but not least, the Panel confirms in line with previous UDRP decisions that the top-level domain “.org” does not influence the overall impression of the disputed domain name and is therefore irrelevant for the assessment of a confusing similarity between the disputed domain name and the trademark in question.
Hence, the Panel is of the opinion that the disputed domain name is confusingly similar to the registered LG trademarks and therefore 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 rights or legitimate interests in the disputed domain name.
While the burden of proof remains with the Complainant, the panels have 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 with prior UDRP panels that the Complainant is required to make out a prima facie case before the burden of proof 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, 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 sign LG in the disputed domain name.
In the absence of a Response by the Respondent, there is also no indication in the current record that the Respondent is commonly known by the disputed domain name.
In addition, the Respondent has failed to demonstrate any of the other non-exclusive 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. There is 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 Complainant’s LG trademarks. Quite the opposite, it rather appears that the Respondent tries to gain commercial benefit by offering various air condition products, which might be confusingly associated with the Complainant’s LG branded products. This assessment is in particular supported by the fact that the Respondent highlights the Complainant’s LG logo on its homepage linked to the disputed domain name, which - in the Panel’s view - causes the false impression that it is an official or at least authorized homepage by the Complainant. The Panel believes that this sufficiently indicates that there is no legitimate noncommercial or fair use of the disputed domain name.
Hence, the Panel concludes 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 further believes that the Respondent has registered and is using the disputed domain name in bad faith.
According to the provided documents in the Complaint, the Panel is convinced of the reputation of the Complainant’s LG trademark, including but not limited to Turkey, where the Respondent is located. Hence, the Panel cannot conceive any circumstance that the Respondent has not known the Complainant and its LG trademarks when it registered and started to use the disputed domain name in 2011. This is in particular likely as the disputed domain name was registered many years after the Complainant’s trademarks have become registered and recognized worldwide, including in Turkey.
Additionally, there are further indications that lead to the conclusion that the Respondent primarily registered and is using the disputed domain name in bad faith.
First, the Respondent offers the same or at least confusingly similar air condition products and services as offered by the Complainant. Second, the Respondent highlights the official LG logo of the Complainant on the website linked to the disputed domain name as an eye catcher without any evidenced authorization or granted permission to do so. By doing this, the Respondent causes the misleading impression that the website linked to the disputed domain name is an official website of the Complainant. Third, even if the Panel would in favor of the Respondent assess that it is an unauthorized reseller of LG products (bearing in mind that in the case file there is no indication for this assumption at all), the Respondent fails to disclose the missing legal or business relationship to the Complainant. Quite the opposite, it is in the Panel’s view that it is the Respondent’s unlawful purpose to monetize on the prominence of the Complainant’s LG trademarks by intentionally diverting Internet users seeking for official or at least authorized information on air condition products by the Complainant.
Last but not least, the Panel finds that the Respondent’s failure to respond to the Complaint further supports the conclusion that it has registered and is using the disputed domain name in bad faith in order to gain unlawful benefit from mislead Internet users.
Overall, the Panel finds that the above demonstrates a rather typical cybersquatting case.
The Panel therefore concludes that the disputed domain name was registered and is being used in bad faith and that the Complainant consequently has satisfied the third element of the Policy, namely, paragraph 4(a)(iii) and 4(b)(iv) of the Policy.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <lgklima.org> be transferred to the Complainant.
Dated: August 26, 2011