WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Sahibinden Bilgi Teknolojileri Pazarlama ve Ticaret Anonim Şirketi v. Volkan Keskin

Case No. D2010-2034

1. The Parties

The Complainant is Sahibinden Bilgi Teknolojileri Pazarlama ve Ticaret Anonim Şirketi of İstanbul, Turkey, represented internally.

The Respondent is Volkan Keskin of İstanbul, Turkey.

2. The Domain Names and Registrar

The disputed domain names <sahıbinden.com> [xn--sahbinden-xpb.com] and sahibınden.com [xn--sahibnden-zpb.com] are both registered with GoDaddy.com, Inc.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 23, 2010. On November 24, 2010, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the disputed domain names. On November 24, 2010, 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 December 1, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was December 21, 2010. The Response was filed with the Center on December 20, 2010.

The Center appointed Kaya Köklü as the sole panelist in this matter on December 22, 2010. 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 a Turkish corporate entity, which runs a well-known e-commerce web portal in Turkey since the year 2001. The portal located at ”www.sahibinden.com” is an online marketplace for various kinds of goods and services.

In 2000, the Complainant registered the trademark SAHIBINDEN in Turkey for the first time. Since then, the Complainant has registered several further trademarks related to SAHIBINDEN. Such trademarks include the mark SAHIBINDEN.COM.

Sahibinden is in the Turkish language a term standing for “from the owner” in the English language.

Furthermore, it is noted that the Complainant has registered and operates its trademark SAHIBINDEN as a domain name under <sahibinden.com> for its commercial marketplace.

According to the current record, the disputed domain names <sahıbinden.com> [xn--sahbinden-xpb.com] and <sahibınden.com> [xn--sahibnden-zpb.com] were created on May 25, 2008.

The Respondent and registered owner of the disputed domain names is a Turkish individual who is located in Istanbul, Turkey.

5. Parties’ Contentions

A. Complainant

The Complainant argues that it operates the leading Turkish e-commerce marketplace with more than one million registered users and nearly 500,000 daily visitors. It is alleged that the trademark SAHIBINDEN enjoys substantial goodwill and a valuable reputation among the Turkish community.

With its Complaint, the Complainant requests the transfer of the disputed domain names.

The Complainant argues that the disputed domain names are confusingly similar to the Complainant’s trademark rights in the sign SAHIBINDEN as the only difference is a change of a single character. The Complainant believes that the Respondent, having the Complainant’s trademark and web site “www.sahibinden.com” in mind, deliberately registered the domain names with only a minor change in one letter. In the Complainant’s view, this is a strong indication for typosquatting.

Furthermore, the Complainant asserts that the Respondent has no rights or legitimate interests in the disputed domain names and must have registered and used the disputed domain names in bad faith. In this regard, it is stated that the Complainant has never granted a license, consent or any other right by which the Respondent would have been entitled to register or use the disputed domain names <sahıbinden.com> [xn--sahbinden-xpb.com] and <sahibınden.com> [xn--sahibnden-zpb.com].

In addition, the Complainant believes that the Respondent has never used and does not intend to use the disputed domain names with a bona fide offering of goods or services. The Complainant rather asserts that the sole reason for registering and using the disputed domain names is to create confusion among users who are searching for the Complainant’s web site and by this, gain pay-per-click advertising revenue.

Finally, the Complainant has no doubts that the Respondent must have known the Complainant and its trademark SAHIBINDEN well before the registration of the disputed domain names.

B. Respondent

The Respondent claims the dismissal of the Complainant’s request for transfer of the disputed domain names.

First, the Respondent argues that the Complainant did not have any trademark protection for “internet business” in the sign SAHIBINDEN prior to the registration date of the disputed domain names.

Second, the Respondent argues that the term “sahibinden” is a generic word in the Turkish language which is commonly used in a descriptive way.

Third, the Respondent argues that the disputed domain names are not confusingly similar to the Complainant’s trademark as they are phonetically different.

Furthermore, the Respondent argues that the design of the web sites linked to the disputed domain names is significantly different to the design of the Complainant’s web site and that the Respondent never used the mark SAHIBINDEN.COM on its web site. In the Respondent’s view, this shall be sufficient to exclude a confusing similarity as required by the Policy.

Finally, the Respondent states that he is an amateur only and that his commercial income from operating the disputed domain names is not significant. In particular, the Respondent argues that he is a collector of generic domain names and that – although he was aware of the Complainant’s web site “www.sahibinden.com” - he never tried to sell the disputed domain names to the Complainant.

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 other 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 is obliged to prove that each of the three following elements is satisfied:

(i) The disputed domain names are identical or confusingly similar to the trademark in which the Complainant has rights;

(ii) The Respondent has no rights or legitimate interests in respect of the domain names; and

(iii) The disputed domain names have been registered and are 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.

However, concerning the uncontested information provided by the Complainant, the Panel may as appropriately accept the proved 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 an additional independent research in the trademark registers of the Turkish Patent Institute has been performed by the Panel on December 30, 2010. The competence of the Panel to perform such independent research is in line with previous UDRP decisions, e.g., Hesco Bastion Limited v. The Trading Force Limited, WIPO Case No. D2002-1038.

A. Identical or Confusingly Similar

The Panel finds that the disputed domain names <sahıbinden.com> [xn--sahbinden-xpb.com] and <sahibınden.com> [xn--sahibnden-zpb.com] are confusingly similar to the Complainant’s trademarks.

First, the Panel confirms that the Complainant has satisfied the threshold requirement of having trademark rights regarding the term SAHIBINDEN. Although the term “sahibinden” a Turkish word that means “from the owner” in the English language, over the years this term has become a well-known and distinctive trademark of the Complainant used for its Turkish marketplace operated under its web site “www.sahibinden.com” (also confirmed by other UDRP panels, e.g. in Taner Aksoy v. Mesut Lacin, WIPO Case No. D2010-0560). In addition to the provided evidence in the Complaint, the Panel has also conducted an independent research in the Turkish trademark registers and can further confirm that — as stated in the Complaint — the Complainant is the registered owner of several word and figurative marks granted by the Turkish Patent Institute for the mark SAHIBINDEN since October 2000. These trademarks in particular cover protection for various kinds of goods and services, especially for advertisements, commercial offers, consumer relations etc.

Second, the disputed domain names are confusingly similar to the Complainant’s trademark SAHIBINDEN as they differ from the mark SAHIBINDEN merely by the replacement of the letter “i” by “ı”. In the Turkish alphabet, “i” and “ı” are two different letters. However, the Panel – who is familiar with the Turkish language – contradicts with the Respondent’s view and finds that both letters are not only virtually but also phonetically similar and can very easily be confused.

The replacement of single letters – as done in the present case – is commonly assessed as typosquatting. Typosquatting is a special form of cybersquatting which relies on mistakes or typographical errors made by Internet users when typing a domain name into an Internet browser or search engine. In case of such a typographical error while entering a web site address, the user is led to an alternative address operated by the typosquatter.

Typosquatting is regularly regarded in UDRP decisions as creating domain names confusingly similar to the relevant mark in question, e.g. Edmunds.com, Inc. v. Digi Real Estate Foundation, WIPO Case No. D2006-1043; Humana Inc. v. Cayman Trademark Trust, WIPO Case No. D2006-0073; ACCOR v. Birgit Klostermann, WIPO Case No. D2005-0627.

In the present case, the replacement of “i” by “ı” does not significantly affect the appearance or pronunciation of the disputed domain names in relation to the Complainant’s mark SAHIBINDEN. The Panel concludes that the minor differences between the disputed domain names and the Complainant’s mark are not sufficient to negate the confusing similarity for the purposes of the Policy.

The argument by the Respondent stating that the design of the web sites linked to the disputed domain names compared to the design of the Complainant’s marketplace operated under the domain name <sahibinden.com> are different, is not convincing. The question to be answered is not whether the web sites operated by the parties are confusingly similar. The decisive question is whether the disputed domain names on the one hand are confusingly similar to the Complainant’s trademarks on the other hand. The Panel has given its view on this assessment above already.

According to the aforementioned considerations, the Panel finds that the disputed domain names are confusingly similar to the Complainant’s mark SAHIBINDEN and therefore concludes that the first requirement under paragraph 4(a) of the Policy is fulfilled.

B. Rights or Legitimate Interests

The Panel further concludes that the Respondent has no rights or legitimate interests in the disputed domain names.

While the burden of proof under the second element of the Policy remains with the Complainant, the Panel recognizes that this would often 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 in line with previous UDRP decisions 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 names 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 provide sufficient evidence or convincing arguments to demonstrate a right or legitimate interest in the disputed domain names 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 other similar right to use the disputed domain names.

The Respondent has failed to demonstrate any of the three nonexclusive 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 names. In particular, the Respondent has failed to show that the disputed domain names have been used in connection with a bona fide offering of goods or services.

The Respondent’s argument that it makes a legitimate use of a generic term is not convincing. There is no indication that the Respondent uses the term “sahibinden” in a descriptive way.

The Panel is well aware that in the Turkish language, one could use the term “Sahibinden” in a descriptive way, as e.g. shown in Annexes 4 and 5 to the Response or as assessed by another UDRP panel in Taner Aksoy v. Mesut Lacin, WIPO Case No. D2010-0560. However, the Panel finds that these examples do not apply for the present case.

By using the grammatically wrong characters of the Turkish alphabet in the disputed domain names, it is indicated that the Respondent does not want to use the term “sahibinden” in a descriptive way but rather tries to create a close link between the disputed domain names and the Complainant’s trademark in order to gain commercial benefit by misleading users. The Panel is convinced that the Respondent tries to commercially benefit from clicks on its web sites linked to the disputed domain names by misleading Internet users caused by typographical errors when entering the Complainant’s web site address into an Internet browser. This view is supported by the fact that on his web sites linked to the disputed domain names the Respondent has provided several links (advertisements) to commercial offers, apparently so-called pay-per-click advertisements.

Furthermore, the Panel does not see any indication that the Respondent is making a legitimate noncommercial or fair use of the disputed domain names without the intent for commercial gain to misleadingly divert users or to tarnish the SAHIBINDEN trademark. The Respondent states himself that he has generated income from pay-per-click advertisements on his web sites linked to the disputed domain names. Whether the generated income is significant or not, the Panel finds that this does not matter for the assessment of a legitimate noncommercial or fair use.

Thus, the Respondent’s allegations that he is an amateur domain name collector only and that the income from the aforementioned pay-per-click advertisements is not significant cannot convince the Panel. In the Panel’s view, the present case is a rather typical typosquatting case in which the Respondent tries (whether successfully or not) to benefit from typographical errors made by Internet users who are trying to reach the Complainant’s web site “www.sahibinden.com”. The Panel is of the opinion that such an intention cannot be assessed as a legitimate interest according to the purposes of the Policy.

Last but not least, there is also no indication in the current record that the Respondent is commonly known by the disputed domain names. In contrast, the Respondent argues in his Response to the Complaint that he is an amateur domain name collector only and that he has only a few clicks on its web sites linked to the disputed domain names. Accordingly, the Panel finds that the Respondent cannot be commonly known by the disputed domain names.

Hence, the Panel finds that the Complainant has also satisfied the requirements of 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

The Panel is further of the opinion that the Respondent has registered and used the disputed domain names in bad faith.

First, the Panel is convinced that the Respondent was well aware of the Complainant’s trademark rights when registering the disputed domain names. This is apparently the case as the disputed domain names have been registered many years after the Complainant’s trademark SAHIBINDEN has become well-known in Turkey. As the Respondent is an individual located in Turkey, the Panel cannot conceive that the Respondent did not know the Complainant’s trademark when registering the disputed domain names.

In the Panel’s view, it appears that the Respondent has registered and used the disputed domain names for the sole purpose of creating an association with the Complainant, in particular with its marketplace operated under the domain name <sahibinden.com>. The way of typosquatting as practiced by the Respondent in the present case apparently intends to result in the diversion of Internet traffic from the Complainant’s site to the Respondent’s site. This is in particular the case as the record suggests that the Respondent has operated web sites linked to the disputed domain names in order to generate pay-per-click advertising revenue by mislead users.

The Panel finds that attracting Internet traffic by use of typosquatting and pay-per-click links is a strong indication for bad faith registration and use under paragraph 4(b)(iv) of the Policy.

The Panel therefore concludes that the disputed domain names were registered and used in bad faith and that the Complainant has also satisfied the third element of the Policy, namely, paragraph 4(a)(iii) of the Policy.

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain names, <sahıbinden.com> [xn--sahbinden-xpb.com] and <sahibınden.com> [xn--sahibnden-zpb.com] be transferred to the Complainant.

Kaya Köklü
Sole Panelist
Dated: January 5, 2011