WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
SIEMENS AG v. Omur Topkan
Case No. D2013-1318
1. The Parties
The Complainant is SIEMENS AG of Erlangen, Germany, represented by Müller Fottner Steinecke, Germany.
The Respondent is Omur Topkan of Sakarya, Turkey.
2. The Domain Name and Registrar
The disputed domain name <sıemens.com> [xn--semens-p9a.com] is registered with FBS Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 19, 2013. On July 19, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 23, 2013, 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.
On August 5, 2013, the Center transmitted the language of the proceedings document to the parties in both English and Turkish. On August 8, 2013, the Complainant requested English to be the language of the proceedings. The Respondent did not submit its comments in this regard. However, the Center received an informal email communication in Turkish from the Respondent on August 5, 2013.
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 in both English and Turkish the Respondent of the Complaint, and the proceedings commenced on August 16, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was September 5, 2013. The Respondent did not submit any formal response. Accordingly, the Center notified the Respondent’s default on September 6, 2013.
The Center appointed Dilek Ustun Ekdial as the sole panelist in this matter on September 12, 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 Company Siemens AG, headquartered in Berlin and Munich, is one of the world’s largest electrical engineering and electronics companies. The Complainant provides innovative technologies and comprehensive know-how in over 190 countries. Founded more than 150 years ago, the company is active in the areas of information and communications, medicine, automation and control, power, transportation, consumer products, such as home appliances, and various other fields, as to be seen from the Complainant’s main website accessible at “www.siemens.com”.
The Complainant contends that the Complaint is based on:
- Community trademark No. 4240263 SIEMENS registered on March 28, 2006 on in the name of SIEMENS AG, claiming protection for goods and services in classes 1, 3, 4, 6, 7, 8, 9, 10, 11, 12, 14, 16, 17, 20, 21, 28, 35, 36, 37, 38, 39, 40, 41 and 42.
- International registration No. 955352 SIEMENS registered on January 9, 2008 in the name of SIEMENS AG, covering among various classes class 28 and claiming protection in a multitude of countries worldwide, also e.g. in the European Community and in Turkey.
The trademark SIEMENS was registered long before the registration of the disputed domain name (which was registered on May 30, 2013).
5. Parties’ Contentions
The Complainant contends that the mark SIEMENS is famous. By virtue of long and extensive use, this mark belongs to the best known trademarks in the world today.
The Complainant is, among other countries, also doing business in Turkey where the Respondent is located.
The Complainant offers worldwide the corresponding goods and services in the above mentioned fields under the trademark SIEMENS.
In addition, the Complainant asserts that the Respondent has no rights or legitimate interests in the disputed domain name since the Complainant has no relationship with the Respondent and the latter is not commonly known by the disputed domain name. The Respondent certainly had knowledge of the internationally famous SIEMENS mark when the disputed domain name was registered given the distinctiveness and international reputation of the SIEMENS mark. Before receiving notice of the dispute, the Respondent was not using the disputed domain name in connection with a bona fide offering of goods or services, nor making any legitimate noncommercial or fair use of it, without intent for commercial gain to misleadingly divert consumers or to tarnish the SIEMENS mark.
The Complainant states that the disputed domain name was registered and used in bad faith given that: (a) the Respondent was aware of the SIEMENS mark; (b) the Respondent has redirected the Internet users accessing the disputed domain name to a website of a competitor of the Complainant, Schneider Electric, in June 2013, which offers goods and services in almost all fields of industries as the Complainant (Annex 8 to the Complaint).
The Complainant also points out that in June 19, 2013, following the Complainant’s request to have the disputed domain name transferred, the Respondent immediately changed the content of the website of the disputed domain name by redirecting the Internet users to a website offering toys (Annex 9 to the Complaint). According to the Complainant, this reaction shows that the Respondent’s intention is to offer the disputed domain name for sale.
The Respondent did not reply to the Complainant’s contentions.
However, on August 5, 2013, the Respondent sent an informal email message in Turkish to the Center and briefly stated that:
- He registered the disputed domain name because it was available.
- He blamed a registrar named “www.tescilfirması.net” where he registered the disputed domain name and did not accept any responsibility.
- He notes that he cannot speak English and by this Complaint he has been humiliated.
- He offered to sell the disputed domain name to the Complainant and that the Complainant has filed the Complaint instead of buying it.
- He will file a complaint before the European Court of Human Rights.
6. Discussion and Findings
Paragraph 15(a) of the Rules requires the Panel to decide the Complaint on the basis of the statements and documents submitted in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
Under paragraph 4(a) of the Policy, the Complainant bears the burden of showing:
(i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) that the disputed domain name has been registered and is being used in bad faith.
A. Language of the Proceeding
Although the language of the Registration Agreement is in the Turkish language, the Panel determines in accordance with the Rules, paragraph 11(a), that the language of these administrative proceedings shall be the English language. The Panel finds that it would be inappropriate to conduct the proceedings in the Turkish language and request a Turkish translation of the Complaint while the Respondent has failed to raise any objection or even to respond to the Complaint and to the Center’s email communication with regard to the language of the proceedings, despite it being communicated in Turkish and in English. The Panel notes also that the content of the website at the disputed domain name is in English; therefore, the Respondent should be familiar with the English language.
B. Identical or Confusingly Similar
The Panel agrees with the Complainant here. The Complainant has trademark rights in SIEMENS and “sıemens” is phonetically and visually almost identical to the Complainant’s trademark. “sıemens” is in Turkish and to this Panel “ı” will rather be considered as the letter “i”. Therefore, Internet users will have the false impression that the domain name <sıemens.com> is an official domain name of the Complainant.
The disputed domain name <sıemens.com> is confusingly similar to the Complainant’s trademark SIEMENS. Therefore, the Panel finds that the requirement of paragraph 4(a)(i) of the Policy is met.
C. Rights or Legitimate Interests
The Respondent has not provided any evidence of the example specified in paragraph 4(c) of the Policy, or 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 and services. 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 rights or legitimate interests, and the Respondent has failed to demonstrate such rights or legitimate interests in the disputed domain name.
The Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
Therefore, the Panel finds that the requirement of paragraph 4(a)(ii) of the Policy is met
D. Registered and Used in Bad Faith
The Panel finds that, given the use of the disputed domain name, as evidenced in Annexes 8 and 9 to the Complaint, when the Respondent registered the disputed domain name it knew that SIEMENS was the trademark of the Complainant, and that he registered the disputed domain name because it would be recognized as such. Bearing this in mind, the Panel finds the Respondent’s bad faith is illustrated as the disputed domain name redirected to a website offering products of the Complainant’s competitors (Annex 8 to the Complaint).
The offer to sell the disputed domain name is a further evidence of bad faith.
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 notes that at the time of this Decision the website does not resolve to an active webpage but this does not prevent a finding of bad faith. The Panel therefore 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.
In view of the above, the Panel finds that the Respondent has registered and is using the disputed domain name in bad faith, in accordance with paragraph 4(a)(iii) 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 <sıemens.com> [xn--semens-p9a.com] be transferred to the Complainant.
Dilek Ustun Ekdial
Date: September 30, 2013