WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Vipindirim Elektronik Hizmetler Ve Ticaret A.S. v. Contact Privacy Inc. Customer 0133541215 / SADECEHOSTING.COM Internet Hizmetleri San Tic Ltd Sti KoreSehitleri Cad.

Case No. D2013-0456

1. The Parties

The Complainant is Vipindirim Elektronik Hizmetler Ve Ticaret A.S. of Istanbul, Turkey, represented by B+B Law Office, Turkey.

The Respondent is Contact Privacy Inc. Customer 0133541215 of Toronto, Ontario, Canada / SADECEHOSTING.COM Internet Hizmetleri San Tic Ltd Sti KoreSehitleri Cad of Istanbul, Turkey.

The disputed domain name <markafonni.com> is registered with Tucows Inc. (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 5, 2013. On March 5, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 5, 2013, the Registrar 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 March 7, 2013 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 amended Complaint on March 11, 2013.

The Center verified that the Complaint together with the amended 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 March 12, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was April 1, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 4, 2013.

The Center appointed Dilek Ustun Ekdial as the sole panelist in this matter on April 16, 2013. 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 well known and recognized over the past years in the sector with the term “Markafoni”, which is an e-commerce platform throughout Turkey.

The Complainant owns the trademarks which are composed the word “markafoni”, effective from the year 2008.

The domain name <markafoni.com> was registered by the Complainant respectively on March 11, 2008.

The disputed domain name <markafonni.com> was created on February 18, 2013 (as indicated by the Registrar and the public WhoIs record).

5. Parties’ Contentions

A. Complainant

The Complainant owns the MARKAFONI trademark, which is protected throughout Turkey, the European Union and within the International Trademark System (Madrid System for the International Registration of Marks).

MARKAFONI is a “well-known” trademark. Consequently, the Respondent must have known about the Complainant’s trademark before the disputed domain name was registered.

The disputed domain name <markafonni.com> resolves to a web site which is providing the same Internet services.

The disputed domain name comprises the Complainant’s trademark with a single misspelling of an element of the mark: a double consonant “n” at the end. The Respondent used a typographical error to engage in “typosquatting”.

The Respondent has no prior rights or legitimate interests in the disputed domain name.

The Respondent is not affiliated with the Complainant in any way nor has the Respondent been authorized to use the trademark MARKAFONI. The Respondent has never been commonly known by the disputed domain name or the trademark MARKAFONI.

The Respondent uses the disputed domain name to divert web traffic for commercial gain using the good will built up by the Complainant.

The disputed domain name resolves to a web site which is providing the same Internet services, which evidences the Respondent’s intention to exploit Internet user’s confusion between the Complainant’s trademark and the disputed domain name to obtain commercial benefit.

B. Respondent

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

6. Discussion and Findings

Paragraph 4(a) of the Policy requires that a 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 a 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

A. Identical or Confusingly Similar

The Complainant has established it has rights to the MARKAFONI trademark.

The disputed domain name incorporates the Complainant’s MARKAFONI trademark in its entirety. The only difference between the disputed domain name and the Complainant’s mark is the inclusion of the letter “n”.

It is a well-established rule that in making an enquiry as to whether a trademark is identical or confusingly similar to a domain name, the generic Top-Level Domain (gTLD) extension, in this case “.com” may be disregarded (See Rohde & Schwarz GmbH & Co. KG v. Pertshire Marketing, Ltd., WIPO Case No. D2006-0762).

Additionally, as the Respondent is in default, it has brought no argument to support the contention that the disputed domain name is not 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 Panel finds that the Complainant has made a prima facie case that the Respondent lacks rights or legitimate interests. The Complainant showed, inter alia, that the Respondent has neither a license nor any other permission to use the disputed domain name. The Respondent has failed to demonstrate such 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 disputed domain name. It is clear that the Respondent has not demonstrated any bona fide offering of goods or services by its using of 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 Panel further finds that given the use made of the disputed domain name, when the Respondent registered the disputed domain name it must have known the MARKAFONI 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, and that the requirement of paragraph 4(a)(ii) of the Policy is met.

C. Registered and Used in Bad Faith

The Panel is of the opinion that the Respondent must have been aware of the Complainant and its trademark rights when it registered the disputed domain name. Bearing this in mind, the Panel finds the Respondent’s bad faith is illustrated as the disputed domain name resolves to a web site offering services in direct competition with the Complainant’s services. The Panel is prepared to infer that the Respondent is taking advantage of the goodwill and reputation of the Complainant’s trademark for commercial gain and it well established that such use is evidence of bad faith. Société des Bains de Mer et du Cercle des Etrangers à Monaco v. Universal Spheres Inc., WIPO Case No. D2010-0822. Further, such use clearly threatens to divert actual clients away from the Complainant and disrupt the Complainant’s business.

As in Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003 and Ladbroke Group Plc v. Sonnoma International LDC, WIPO Case No. D2002-0131, after examining all circumstances surrounding the registration and use of the disputed domain name, the Panel finds that the Respondent registered and is using the disputed domain name in bad faith. Accordingly the Panel finds in favor of the Complainant on the third element of the Policy.

7. Decision

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 <markafonni.com> be transferred to the Complainant.

Dilek Ustun Ekdial
Sole Panelist
Date: May 15, 2013