WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Hacı Ömer Sabancı Holding A.Ş. v. Ayhan Yılmaz
Case No. D2012-0732
1. The Parties
The Complainant is Hacı Ömer Sabancı Holding A.Ş. of Istanbul, Turkey, represented by Mehmet Gün & Co., Turkey.
The Respondent is Ayhan Yılmaz of Istanbul, Turkey.
2. The Domain Name and Registrar
The disputed domain name <sevilsabanci.com> is registered with GoDaddy.com, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 9, 2012. On April 10, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 10, 2012, the Registrar 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 April 17, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was May 7, 2012. The Respondent sent email communications in Turkish on April 30, May 1 and May 2, 2012. The Respondent did not submit any formal response. Accordingly, the Center notified about the commencement of panel appointment procedure on May 9, 2012.
The Center appointed Kaya Köklü as the sole panelist in this matter on May 14, 2012. 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.
On May 31, 2012, in response to the Panel Order No. 1 sent to the Parties on May 21, 2012, the Complainant submitted a declaration signed by Ms. Sevil Sabanci stating that she explicitly agrees into the transfer of the disputed domain name to the Complainant.
4. Factual Background
The Complaint is the parent company of the well-known Sabanci Group in Turkey in the area of industrial and financial services. With its various companies, it currently operates in 18 countries worldwide, with a focus on Europe, Asia and South America. The Complainant’s first company was founded in 1967 by the Sabanci Family. Since then, the Complainant experienced a significant growth in its commercial activities. In 2010, the consolidated revenues of the Complainant were about USD 13 billion.
The Complainant is the registered owner of a large number of trademarks comprising the family name “Sabanci”, in particular (but not limited to) community trademarks as well as registered trademarks in Turkey. The scope of trademark protection covers a large variety of goods and services. The first trademarks were registered already decades ago.
It is noted that the Complainant also operates various domain names in the Internet comprising its company name and trademark SABANCI, in particular <sabanci.com.tr> and <sabanci.com>.
The Respondent is an individual from Istanbul, Turkey. According to the current record, the disputed domain name <sevilsabanci.com> was created on July 1, 2010 on behalf of the Respondent.
5. Parties’ contentions
The Complainant argues that the disputed domain name is confusingly similar to the Complainant’s company name and trademark SABANCI.
Additionally, the Complainant asserts that the Respondent has no rights or legitimate interests in the disputed domain name. It is stated that the Complainant has never granted a license or any other right by which the Respondent would have been entitled to register and use the disputed domain name. It is further argued that the Respondent has never used and does not intend to use the disputed domain name for a bona fide noncommercial offering of goods or services.
The Complainant has also no doubts that the Respondent must have known the Complainant and its SABANCI trademarks well before registration of the disputed domain name, and hence must have registered and used the disputed domain name in bad faith.
The Respondent did not formally reply to the Complainant’s contentions.
However, the Center received informal email communications on April 30, May 1 and May 2, 2012.
In his first email communication dated April 30, 2012, the Respondent indicated that he is willing to transfer the disputed domain name to the Complainant without any remuneration. However, in his second email communication dated May 1, 2012, he changed his mind and requested the payment of USD 10.000,00 for the transfer of the disputed domain name.
6. Discussion and Findings
In accordance with the Rules, paragraph 11(a), and since the parties have not agreed otherwise, the Panel finds that the language of the administrative proceedings is the language of the Registration Agreement (i.e. English).
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 formally or properly 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. Belupod.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110.
It is further noted that the Panel has taken note of the WIPO Overview of Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”) and, where appropriate, will decide consistent with the WIPO Overview 2.0.
A. Identical or Confusingly Similar
The Panel finds that the disputed domain name <sevilsabanci.com> is confusingly similar to the SABANCI trademarks of the Complainant.
First, the Panel confirms that the Complainant has satisfied the threshold requirement of having trademark rights regarding its company name and mark SABANCI. As evidenced in the Complaint, the Complainant owns a large number of registered SABANCI trademarks worldwide, including in Turkey.
Although not identical, the disputed domain name <sevilsabanci.com> fully incorporates the trademark SABANCI.
The disputed domain name differs from the trademark only by the addition of the first name of a board member of the Complainant, namely the first name of Ms. Sevil Sabanci.
In the Panel’s view, the addition of the name “Sevil” does not negate the confusing similarity between the Complainant’s trademark and the disputed domain name. The Panel finds that this incorporation does not create a new distinctiveness separate from the Complainant’s trademark SABANCI. On the contrary, the full inclusion of the Complainant’s trademark in combination with the first name of a board member of the Complainant may even enhance the false impression that the website linked to the disputed domain name is somehow officially linked to the Complainant or one of its groups, board or family members.
Hence, the Panel is satisfied that the Complainant has met the requirements under paragraph 4(a) of the Policy.
B. Rights or Legitimate Interests
The Panel further believes that the Respondent has no rights or legitimate interests in the disputed domain name.
While the burden of proof 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 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 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 by providing uncontested prima facie evidence that the Respondent has no trademark, license or any similar right to use the Complainant’s trademark in the disputed domain name.
In the absence of a properly filed Response, the Respondent has failed to file any evidence or convincing arguments to demonstrate a right or legitimate interest in the disputed domain name according to the Policy, paragraphs 4(a)(ii) and 4(c).
C. Registered and Used in Bad Faith
The Panel is convinced that the Respondent has registered and is using the disputed domain name in bad faith.
First, the Panel is fully aware of the high reputation and recognition of the Complainant’s company name and trademark SABANCI in Turkey, where both the Complainant and the Respondent are located. For sure, the Complainant’s trademark is among the brands with the highest public awareness in Turkey. Hence, it is clear that the Respondent must have known the Complainant and its SABANCI trademark when it registered the disputed domain name in 2010.
It is further apparent that the Respondent tries to monetize on the prominence of the SABANCI name and trademark. In the Panel’s view, the Respondent’s sole purpose is to tarnish the Complainant’s trademark and/or to put pressure on the Complainant to pay ransom for the hijacked disputed domain name. This becomes in particular obvious as the Respondent did not even refrain from claiming USD 10.000,00 for the transfer of the disputed domain name in his email communication to the Center dated May 1, 2012.
Last but not least, the Panel finds that the Respondent's failure to properly respond to the Complaint additionally supports the above finding that it has registered and is using the disputed domain name in bad faith.
In light of the above, the Panel cannot conceive of any good faith use of the disputed domain name by the Respondent.
Overall, the Panel finds that the above demonstrates a typical cyber squatting 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) of the Policy.
D. Requested Remedy
As to the findings above, the Complainant has satisfied all three requirements of paragraph 4(a) of the Policy.
However, the Panel once again notes that the disputed domain name incorporates not only the Complainant’s trademark, but also name and surname of one of its board members, namely Ms. Sevil Sabanci. The Panel believes that a transfer of a domain name incorporating not only the Complainant’s trademark but also the full name of a well-known individual – even if this person is closely linked to the Complainant - requires at least some kind of authorization from the concerned individual.
In response of the Panel Order No. 1 requesting the provision of such authorization, the Complainant provided a declaration signed by Ms. Sevil Sabanci explicitly providing her consent in the transfer of the disputed domain name to the Complainant.
By submitting such authorization, the Complainant has satisfied the requirements of the requested remedy.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <sevilsabanci.com> be transferred to the Complainant.
Dated: June 6, 2012