WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Alkan Grup Turizm Isşlemelǐ A.Ş., JSC, Obshchestvo S Orgranichennoy Otvetstvennostyu “Tez Tour” (a. k. a. “000 Tez Tur”), Lexcord Capital Limited, Tez Tour v. BUDA AG,
Case No. D2012-2000
1. The Parties
The Complainants are Alkan Grup Turizm Isşlemelǐ A.Ş., JSC. of Antalia, Turkey; Obshchestvo S Orgranichennoy Otvetstvennostyu “Tez Tour” (a. k. a. "000 Tez Tur") of Moscow, Russian Federation; Lexcord Capital Limited of London, United Kingdom of Great Britain and Northern Ireland; and Tez Tour of Sofia, Bulgaria, Turkey, represented by DLA Piper UK LLP, France.
The Respondent is BUDA AG of Frankfurt Germany.
2. The Domain Names and Registrar
The disputed domain names <tezagency.com>, <tezcenter.com>, <tezhotels.com> and <teztour.com> are registered with GoDaddy.com, LLC.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 10, 2012. On October 11, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On October 12, 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 October 17, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was November 6, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 9, 2012.
The Center appointed Thomas M. Legler as the sole panelist in this matter on November 22, 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 November 29, 2012, the Panel notified an Administrative Panel Procedural Order No. 1 (“Procedural Order No. 1”) in which it noted that Complainants' Complaint filed on October 11, 2012 was incomplete.
The Panel invited the Complainants to produce until December 6, 2012 the following exhibits:
- power of attorney from all the Complainants in favour of their Counsel;
- certificates of extension of the validity of all relevant trademarks, if any;
- licence or other existing agreements between the Russian limited liability company “OOO Tez Tour” and its “affiliates” and/or shareholder participation scheme;
- other elements of proof corroborating the Complainants’ approach to bring a single consolidated complaint against the Respondent.
The Panel further ordered that after receipt of any new exhibits produced by the Complainants following its Order No. 1, the Respondent was invited to submit counter-evidence, if any, related to the above mentioned issues on or before December 13, 2012.
On December 5, 2012, the Complainants filed additional evidence following the Panel’s Procedural Order No. 1.
By December 13, 2012, the Respondent had not filed any counter-evidence. The Panel therefore decided to proceed notwithstanding the Respondent’s default.
4. Factual Background
The four Complainants are part of a “group” of entities active in several jurisdictions and offering travel agency and similar services. Some of the Complainants are thereby using the brand “Tez Tour” which is registered as a trademark and design as follows:
- International trademark and design TEZ TOUR No. 820302, registered by the Russian company “OOO Tez Tour”, in classes 39, 41 and 43, valid until December 22, 2013;
- Russian trademark and design TEZ TOUR No. 229538, originally registered by the above mentioned Russian company and transferred on July 13, 2012 to Lexcord Capital Limited. (UK), in classes 39, 41 and 42, valid until August 17, 2021.
- Turkish trademark and design TEZ TOUR No. 2001 03208, registered by the Turkish company Alkan Grup Turizm Isşlemelǐ A.Ş. JSCin classes 39, 41, 42 and 43, valid until February 19, 2021.
Furthermore, the Russian Complainant “OOO Tez Tour” is also owner of the following domain names: <teztour.biz> (registration date: April 15, 2004), <tez-tour.com> (registration date: May 6, 2005), <teztour.ru> (registration date: September 8, 1997) and <tэstyp.pΦ> (registration date: July 5, 2010).
5. Parties’ Contentions
The four Complainants form together the “Tez Tour group” a Russian based travel agency acting from 1994 with international scope of operations. According to the Complainants, the name “Tez Tour” has been used as a brand, a commercial name and as domain names as early as 1994. It is registered as a trademark and corporate name in several jurisdictions. Through its affiliates around the world such as Alkan Grup, Tez Tour also plays an important role in hotel management, construction, and real estate sectors. Each of the Complainants has interest in the TEZ TOUR trademark, which they use in their respective market in relation to the above referred services. The domain name <teztour.com> currently redirects to a web site offering that domain name for sale as well as the other domain names <tezhotels.com>, <tezagency.com> and <tezcenter.com>.
The disputed domain name <tezhotels.com> redirects to a web site accessible to Internet users from the domain name <hotels.tez-tour.com> which is the Complainants’ web site.
The disputed domain name <tezagency.com> redirects to a web site accessible to Internet users from the domain name <agency.tez-tour.com> which is the Complainants' web site.
The disputed domain name <tezcenter.com> redirects to a web site accessible to Internet users from the domain name <center.tez-tour.com> which is the Complainants' web site.
The disputed domain name <teztour.com>, <tezhotels.com>, <tezagency.com> and <tezcenter.com> were owned by the Complainants but have been fraudulently transferred to the Respondent further to malevolent acts carried out by a former employee of Alkan Grup named Gunay Arslan who was the administrative and technical contacts of the disputed domain names. Gunay Arslan was head of the IT department of Alkan Grup until March 2, 2012 where he resigned and refused to hand over the password necessary for the administration of the domain name <teztour.com> but instead handed them over to Buda AG for misappropriation of the disputed domain names. Alkan Grup was made aware of the situation when the access to the domain name by Alkan Grup was blocked by Mr. Gunay Arslan acting as the administrator of the domain name.
Alkan Grup also discovered that <teztour.com> redirects to a web site where the domain name is offered for sale by Buda AG along with the other three disputed domain names: <tezhotels.com>, <tezagency.com> and <tezcenter.com>. As a member of the Tez Tour group, Alkan Grup informed OOO TEZ-TOUR, Lexcord Capital Ltd. and Tez Tour who all have interests in the trademark TEZ TOUR about the situation and they all decided to jointly file the present Complaint.
The disputed domain name <teztour.com> is identical to the Complainants’ word marks TEZ TOUR and OOO Tez Tur's corporate name. It is also confusingly similar with the Complainants’ domain names <teztour.com>, <tezhotels.com>, <teztour.biz> and <tez-tour.ru>, the customers being led to believe that the disputed domain name is owned and operated by the Complainants or an affiliated company. The other disputed domain names, i.e. <tezhotels.com>, <tezagency.com> and <tezcenter.com> are also confusingly similar to the Complainants' trademarks TEZ TOUR and the domain names <teztour.com>, <tezhotels.com>, <teztour.biz> and <tez-tour.ru>, as they are all composed of the common distinctive element "Tez" which will lead the customers to believe that they are all owned and operated by the same companies.
The likelihood of confusion is all the more important that the Complainants' trademarks are famous for travel booking services in Russian speaking countries and that customers were used to connect to the domain name <teztour.com> (which was formally owned by the Complainants) for accessing the Complainants’ web site before the administrative and technical contacts malevolently handed over the password necessary for the administration of the domain name <teztour.com> to the actual owner of the disputed domain name, Buda AG. The same is true for the domain <tezhotels.com>, <tezagency.com> and <tezcenter.com> where the customers are directed to the Complainants' web site.
Considering all the above elements, the Complainants conclude that the disputed domain names are confusingly similar to their prior trademark rights. Furthermore, the Complainants consider that the Respondent does not have any rights or legitimate interests to the disputed domain names, in particular because of the following reasons: (i.) the domain names <teztour.com>, <tezhotels.com>, <tezagency.com> and <tezcenter.com> are on sale on the website “www.teztour.com”; (ii.) the domain name <teztour.com> only directs to a web site offering that domain name for sale which shows therefore that the Respondent has no bona fide intention to use the domain name; (iii) the disputed domain names <tezhotels.com>, <tezagency.com> and <tezcenter.com> redirect to the Complainants' web site which show therefore that the Respondent's intention is to mislead the consumers into believing that its activities are related to the Complainants and causing damages to the Complainants' business.
Finally, Complainants believe that the disputed domain names were registered and are being used in bad faith in particular for the following reasons: The Respondent was aware of the existence of the Complainants’ trademark at the time of acquiring the disputed domain names and therefore acquired the domain names in bad faith; indeed the disputed domain name <teztour.com> was stolen from the Complainants by the former employee Arslan Gunay who was the administrative and technical contacts of the disputed domain names and passed over the password to these domain names to the Respondent. Furthermore, the disputed domain name <teztour.com> is now for sale to any interested party on the web site accessible from the domain name <teztour.com> and the other three domain names all redirect to websites that are hosted by the Complainants which mislead the consumers into believing that the Respondent is somehow related to the Complainants. It has also to be considered that TEZ TOUR is a well-known mark in the Russian Federation and neighbouring countries and its famous cannot be ignored. The Complainants believe that the action of the Respondent in acquiring the disputed domain names amounts to bad faith registration. It is not possible to conceive a plausible circumstance in which the Respondent could legitimately use the disputed domain names.
For all these reasons, the Complainants request the Panel to order the disputed domain names be transferred to the Complainants’ Lexcord Capital Limited.
The Respondent did not reply to the Complainant’s contentions nor did it file any evidence following Procedural Order No. 1.
6. Discussion and Findings
Following Procedural Order No. 1, the Complainants submitted some more information on the corporate structure of the “group”. However, many aspects remain unclear and some allegations are not corroborated by sufficient evidence.
Generally speaking, it is not clear who is claiming what, in which capacity and on what basis.
It has to be recalled in this context and with regard to the first element of the Policy that paragraph 3(b)(ix)(1) of the Rules requires that the complainant describes, “in accordance with the Policy, the grounds on which the complaint is made including, in particular, (i) the manner in which the domain name(s) is/are identical or confusingly similar to a trademark or service mark in which the Complainant has rights.”
The Complainants are invoking that they “all have interests in the trademark TEZ TOUR”. However, the connections between the Complainants’ various entities and their specific rights with regard to the invoked trademarks are not clear. Whereas the Complainants may indeed have an “interest” in the trademark(s) mentioned in the Complaint, they do however not clearly establish to what extent they each have a legal right for their claim with regard to the Respondent’s domain names.
In addition, in their Complaint, the Complainants do not only refer to one TEZ TOUR trademark but collectively refer to three different trademarks, i.e. one international, one Russian and one Turkish mark owned by two different entities whose links are not clearly established.
Furthermore, the Complaint does not contain a request for consolidation in accordance with Article 10 lit. e of the Rules nor does it establish with sufficient clarity why the filing of a single complaint brought by multiple complainants should be accepted in the present case. The onus of establishing this falls on the filing parties. Neither the Policy nor the Rules expressly contemplate multiple complainants, and some panels have rejected complaints filed in the name of more than one complainant on the ground that they have not sufficiently identified their respective ownership rights and requested remedies. See, e.g., Ken Done, Ken Done & Associates Pty Limited, and Ken Done Down Under Pty Limited v. Ted Gibson, eResolution Case No. AF-0638. In other cases, panels have accepted complaints by multiple complainants based on agency, licensing, or affiliate relationships. See, e.g., Staples, Inc., Staples The Office Superstore, Inc., and Staples Contract and Commercial, Inc. v. SkyLabs Corporation and DL Enterprises, WIPO Case No. D2004-0220.
It is however evident that such consolidation in order to be accepted by the Panel has at least to be pleaded and established, e.g. by demonstrating the legal links (ownership, affiliate relationships, agency or licensing) between the various complainants as requested by Procedural Order No. 1.
Indeed, in its Procedural Order No. 1, the Panel asked for further exhibits demonstrating the links between the Russian limited liability company “OOO Tez Tour” and its so-called “affiliates” and/or a shareholder participation scheme. It was unclear from the Complaint what “affiliation” exists between the various Complainants and to what extent they formed a “group” as mentioned in the Complaint.
The participation scheme submitted by the Complainants following Procedural Order No. 1 reveals that the various Complainants appear to be linked by a common “Tez Tour Holding SA” in Luxemburg. However, that pivotal entity is not one of the Complainants. It results from this preliminary assessment that two out of four Complainants may have rights individually but not jointly with the other Complainants and that the overarching legal entity who could have legal control over the Complainants and/or the enforcement of the individual rights relied on, is absent from these administrative proceedings (see consideration IV, (i) (c) in: National Dial A Word Registry Pty Ltd and others v. 1300 Directory Pty Ltd, WIPO Case No. DAU2008-0021).
A closer look into the submitted supplemental evidence shows further important inconsistencies.
- The Complainants heavily rely on the Russian Complainant “OOO Tez Tour”, i.e. on its corporate name rights, its holding of three domain names (<teztour.biz>, <tez-tour.com> and <teztour.ru>) and its international trademark and design No. 820302 for classes 39, 41 and 43. However, the evidence submitted does not clearly establish the link of that entity with Tez Tour Holding SA and Lexcord Capital Limited who should be the only beneficiary of the Complainants’ claim for transfer of the disputed domain names in question. The newly filed table indicates that this company is owned by Mr. Burtin who indirectly owns Tez Tour Holding SA. The evidence filed does however not establish this link. An untranslated document in Russian seems to refer to Mr. Burtin’s stake in the Russian company “OOO Tez Tour”. A handwritten note on that document indicates that the first shareholder is “Mr. Burtin Alexander Ivanovich”, whereas there is a second shareholder “Mrs. Sinigibskaya Larisa Petrovna”. There is no explanation to which extent they are shareholder of that company. The Complainants seem to assert that this Russian Company is hold (only) by Mr. Burtin who in turn is the owner of the company Baliv Enterprise SPF S.A. Luxemburg who in turn participates, among other entities, to the umbrella company Tez Tour Holding SA. However, and even assuming that Mr. Burtin would be the (only) owner of “OOO Tez Tour”, the filed exhibit from the Commercial Register of Luxemburg merely shows that Mr. Burtin is administrator (member of the board of directors) of Balive Enterprise SPF S.A. but not that he is (also) a shareholder of that entity.
- Similar considerations apply to the case of the Turkish Complainant Alkan Grup Turizm Isşlemelǐ A.Ş. JSC. That entity is the owner of the Turkish trademark and design TEZ TOUR No. 2001 03268 for classes 39, 41, 42 and 43. The Complainants file an untranslated document in Turkish where the name of Alkan Grup Turizsm Isşlemelǐ A.Ş. JSC, appears and in the same context the company Eridan Finance Sàrl Luxembourg who, according to the Complainants’ table, is a sister company of Tez Tour Holding SA. No further explanation is given for that document in Turkish so that it remains unclear in what relation these two companies are actually staying.
- Complainants indicate that the Russian trademark and design TEZ TOUR No. 229538 for classes 39, 41 and 42 has been transferred on July 13, 2012 to Lexcord Capital Limited who is, as already mentioned, the only beneficiary of the Complainant’s claim for transfer of the disputed domain names. This is reflected in a “translation” from a “Supplement to Certificate” for that mark. However, the Complainants did not file the original of that document.
- TheComplainants also refer to the Bulgarian company Tez Tour allegedly previous owner of three of the four disputed domain names and which, according to the produced table and overview, would be held by Crystal Star SA Luxembourg (itself participating in Tez Tour Holding SA). The excerpt from the Bulgarian Commercial Register shows however that Tez Tour Bulgaria has a second shareholder, Alfatour SSC, which is not mentioned in the Complaint and whose role and link to Crystal Star SA is unclear.
- The disputed domain names <teztour.com>, <tezagency.com>, <tezhotels.com> and <tezcenter.com> have been transferred in September 2012 to the Respondent Buda AG as the various domain name history and WhoIs excerpts submitted by the Complainants show. The Complainants indicate that Gunnay Arslan, former head of the IT department of Alkan Grup Turizm Isşlemelǐ A.Ş. JSC, has misappropriated of the disputed domain names after his dismissal in March 2012 and transferred them to Buda AG, the Respondent in the present proceedings. Although various circumstances support this allegation, it remains unclear why and how Gunnay Arslan transferred the domain names <tezagency.com>, <tezhotels.com> and <tezcenter.com> who belonged, in 2007, to the entity LizgeSoft (for which the Complainants give no explanation) after his dismissal, i.e. around July/August 2012, to Tez Tour Sofia (Bulgaria), one of the Complainant, and in September 2012 directly to Buda AG.
In view of the foregoing, the Panel considers that the Complaint is incomplete and contains so many open issues that it is impossible to take a reasoned decision.
The Panel's possible decisions are limited to the cancellation of the domain name(s), the transfer of the domain name registration(s) to the complainant(s) in accordance with paragraph 4 i. of the Policy or to deny the complaint. Consequently, the Panel has no other possibility than to deny or dismiss the Complaint.
Although the Panel is of the opinion that this Complaint should not have been filed by multiple Complainants, for the reasons discussed above, such determination is entirely without prejudice to any finding that may be made by a subsequent panel in the event that one or more of the Complainants should choose to file a separate complaint (or complaints) on appropriate conditions under the Policy.
Finally, the Panel considers that this dismissal is made subject to the right of (any or all of) the Complainants to file, in their individual capacity, should they wish to do so, a complaint against the Respondent in relation to any of the domain names (in respect of which such individual Complainant asserts applicable rights under the Policy) that are the subject of this Complaint
For the foregoing reasons, the Complaint is dismissed, subject to the above-mentioned right.
Date: December 13, 2012