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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Sahibinden Bilgi Teknolojileri Pazarlama Ve Ticaret Anonim Şirketi v. Ozgur Ozgun

Case No. D2013-0328

1. The Parties

The Complainant is Sahibinden Bilgi Teknolojileri Pazarlama ve Ticaret Anonim Şirketi of Istanbul, Turkey, represented by BTS & Partners, Turkey.

The Respondent is Ozgur Ozgun of Istanbul, Turkey.

2. The Domain Name And Registrar

The disputed domain name <sahibinden-al.com> is registered with Aerotek Bilisim Taahut Sanayi ve Ticaret Ltd Sti. (the “Registrar”).

3. Procedural History

The Complaint was filed in Turkish with the WIPO Arbitration and Mediation Center (the “Center”) on February 18, 2013. On February 20, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 28, 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 February 28, 2013, the Center transmitted the language of the proceedings document to the parties in both English and Turkish. On February 28, 2013, the Complainant requested Turkish to be the language of the proceedings. The Respondent did not submit its comments.

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 in both Turkish and English, and the proceedings commenced on March 6, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was March 26, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 28, 2013.

The Center appointed Gökhan Gökçe as the sole panelist in this matter on April 9, 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 provides online auction and shopping services in the Turkish market through the website “www.sahibinden.com”. Through this website, Internet users can advertise their products and services together with their prices to the potential customers and it is one of the leading e-commerce websites in Turkey.

As evidenced in the annexes to the Complaint, the Complainant owns SAHIBINDEN (registration no. 2008 53877 of March 23, 2010) and SAHIBINDEN.COM ILAN VE ALIŞVERIŞTE ILK ADRES (registration no. 2010 81360 of February 29, 2012) trademarks registered before the Turkish Patent Institute.

The Respondent has registered the disputed domain name <sahibinden-al.com> on August 13, 2012. The disputed domain name is currently not linked to any website. However, in the past, the Respondent has used the disputed domain name in connection with a website operated for the same purpose as the Complainant’s website.

5. Parties’ Contentions

A. Complainant

In accordance with paragraph 4(a) of the Policy, the Complainant requests that the disputed domain name <sahibinden-al.com> be transferred to the Complainant. The Complainant submits the grounds for these proceedings listed in paragraph 4(a) of the Policy.

Identical or Confusingly Similar

The Complainant has registered its SAHIBINDEN and SAHIBINDEN.COM ILAN VE ALIŞVERIŞTE ILK ADRES trademarks before the Turkish Patent Institute The Complainant is the owner of the website “www.sahibinden.com” which is an e-commerce portal operated since 2001. This website brings together buyers and sellers by providing the platform for sellers to list their products or services in the website free of charge. The website has millions of listings and with an average of 50.000 new listings per day it is one of the leading e-commerce website in Turkey since 2001.

The Complainant asserts that the disputed domain name is confusingly similar to its registered trademark as it incorporates the generic word “al” with the Complainant’s registered trademark SAHIBINDEN. The Complainant states that this is a typical example of trademark + generic word use and is clearly confusingly similar with its registered trademark.

Rights or Legitimate Interests

The Complainant submits that the circumstances that may exhibit that the Respondent has rights or legitimate interests in the disputed domain name under paragraph 4(c) of the Policy are not present in the current case.

The Complainant asserts that the Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services, the Respondent is not commonly known by the disputed domain name and is not using the disputed domain name as a legal name of its business, and the Respondent is not making a legitimate noncommercial or fair use of the disputed domain name.

The Complainant states that the disputed domain name was registered long after the recognition and registration of the Complainant’s trademark and it is clear that that the Respondent was well aware of the Complainant’s trademark at the time of registration of the disputed domain name.

The Complainant submits screenshots dated February 4, 2013 from the website linked to the disputed domain name and asserts that the contents of this website is identically similar and includes categories and icons such as “Acil Acil Ilanlari” and “Emlak, Vasita, Alisveris” which may be confused with the Complainant’s website which is well-known and recognized by the public.

The Complainant further asserts that the Respondent is claiming to be Turkey’s first e-commerce website which provides leasing and sale of vehicles and real property, therefore the disputed domain name is not being used in connection with a bona fide offering of goods and services. The Complainant also points out that there are no notices on the website associated with the disputed domain name which states noncommercial or fair use.

Registered and Used in Bad Faith

The Complainant asserts that the probability of the Respondent not knowing the Complainant’s registered trademark which has been in use for many years is not possible. The disputed domain name was registered in August 2012 whereas the Complainant’s website has been active since 2001 and has become a well-known website.

The Complainant also asserts that, although not suggested by the Complainant, the Respondent has offered to sell the disputed domain name together with the website. Additionally, the Complainant submits a screenshot of the website with a banner indicating that the disputed domain name is for sale, which is a clear indication of bad faith.

B. Respondent

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

6. Discussion And Findings

6.1. Language of the Proceedings

Under paragraph 11 of the Rules, unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceedings shall be the language of the Registration Agreement. In the present case, the language of the Registration Agreement is English.

The Complainant submitted its Complaint in Turkish and requested the language of the proceedings to be Turkish based on the nationality of the parties and the prior communications between the parties. The Respondent has not submitted a response; therefore there is no agreement between the parties with respect to the language of the proceedings.

The Panel is of the opinion that the Complainant is fluent in English as the Complainant’s website is also available in English. Therefore, although both parties are Turkish, the Panel has decided English as the language of the Registration Agreement to be the language of the proceedings. However, as both parties is Turkish, the Panel is of the opinion that there is no necessity for the translation of the Complaint by the Complainant. Additionally, the Respondent has been notified of the proceedings both in Turkish and English and has not objected to the language of the Complaint.

Therefore, the Panel has decided to 1) accept the Complainant’s filings in Turkish; and 2) issue a decision in English.

6.2. Substantive Elements of the Policy

As the Respondent has not filed a Response, the Panel may decide the dispute based on the Complaint and may accept all factual allegations as true. The Panel may also draw appropriate inferences from the Respondent's default. Talk City, Inc. v. Michael Robertson, WIPO Case No. D2000-0009.

A. Identical or Confusingly Similar

Paragraph 4(a)(i) of the Policy requires the Complainant to demonstrate that the disputed domain name is identical or confusingly similar to a trademark in which the Complainant has rights. The Panel is satisfied that the Complainant is the owner of the trademarks SAHIBINDEN and SAHIBINDEN.COM ILAN VE ALIŞVERIŞTE ILK ADRES, as evidenced in the annexes to the Complaint. Although the Complainant contends that its trademarks has been used since 2001, as their registration predates the registration of the disputed domain name, there is no need for the Panel to considered earlier pre-registration use of its trademark SAHIBINDEN.COM & Design.

It is clear that the disputed domain name fully incorporates the Complainant’s trademark and the only difference between the disputed domain name and the Complainant’s SAHIBINDEN trademark is the addition of the generic word “-al” which means “to buy” in Turkish. Additionally, the word “al” is directly related to the business the Complainant operates under the website associated with the registered trademark.

As the addition of this descriptive word does not provide sufficient distinctiveness, the Panel recognizes the Complainant’s rights and concludes that the disputed domain name is confusingly similar with the Complainant’s SAHIBINDEN trademark.

The Panel finds that the requirements in paragraph 4(a)(i) of the Policy are fulfilled. Consequently, the Panel finds for the Complainant on the first element of the Policy.

B. Rights or Legitimate Interests

In accordance with paragraph 4(a)(ii), the Complainant must prove that the Respondent has no rights or legitimate interests in respect of the disputed domain name. It is established in numerous UDRP decisions that it is difficult for a complainant to prove a negative and for that reason the complainant is required to make out an initial prima facie case that the respondent lacks rights or legitimate interests in a domain name, Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110. Once the complainant makes a prima facie case, the burden of demonstrating rights or legitimate interests in the disputed domain name shifts to the respondent. The Policy at paragraph 4(c) provides various ways in which the respondent may demonstrate rights or legitimate interests in the domain name. If the respondent fails to do so, the complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy.

The Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain name, the Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services, the Respondent is not commonly known by the disputed domain name and is not using the disputed domain name as a legal name of its business, and the Respondent is not making a legitimate noncommercial or fair use of the disputed domain name. The Complainant alleges the Respondent’s reason for registering the disputed domain name is to take unfair advantage of the Complainant’s trademark.

The Respondent is not making use of the disputed domain name in connection with a bona fide offering of goods or services. The Panel visited the disputed domain name on April 17, 2013 and found that the disputed domain name does not resolve to a website. The Complainant has submitted screenshots taken on February 4, 2013 of the website to which resolves the disputed domain name, showing the use of the disputed domain name for commercial purposes to provide an online platform to bring together buyers and sellers.

Furthermore, upon search carried out by the Panel in the Turkish Patent Institute records, the Panel has not come across a trademark application or registration filed by the Respondent in connection with the disputed domain name and there is no other evidence to suggest that the Respondent has any trademark rights in the disputed domain name. The Complainant’s trademark is a well-known trademark in Turkey, where both parties are located, recognized by Internet users of all ages and the Panel finds it extremely unlikely that the Respondent was not aware of the Complainant and its services at the time of registration.

As discussed, there is no evidence that the Respondent has made any effort or has any intention to use the disputed domain name for any purpose or legitimate activity consistent with having rights or legitimate interests. Therefore, the Panel infers that there is no intention of legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain or to misleadingly divert consumers.

Paragraph 4(a)(ii) requires the Complainant to prove that the Respondent has no rights or legitimate interests in the disputed domain name. The Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. The Respondent did not submit a response and, therefore, the Panel concludes that the Respondent has no rights or legitimate interests in the disputed domain name.

The requirements of paragraph 4(a)(ii) of the Policy are fulfilled and, consequently, the Panel finds in favor of the Complainant on the second element of the Policy.

C. Registered and Used in Bad Faith

Finally, the Complainant must show that the disputed domain name has been registered and is being used in bad faith under paragraph 4(a)(iii) of the Policy.

Paragraph 4(b) of the Policy provides a non-exhaustive list of circumstances that, if found by a panel to be present, shall be evidence of the registration and use of a domain name in bad faith:

(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or

(ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or

(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent's web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of the respondent's web site or location or of a product or service on the respondent's web site or location.

The Complainant’s SAHIBINDEN trademark was registered and used long before the Respondent registered the disputed domain name. It is very unlikely for the Respondent not to have knowledge of the Complainant’s trademark prior to the registration of the disputed domain name. The Panel, in accordance with previous decisions issued under the Policy, is of the opinion that actual knowledge of the Complainant’s trademark at the time of registration of the disputed domain name is to be considered as an inference of bad faith. Parfums Christian Dior v. Javier Garcia Quintas and Christiandior.net, WIPO Case No. D2000-0226.

The Complainant is one of the most well-known providers of online auction and sales services in Turkey. The use of the Complainant’s trademark with the addition of a descriptive word “-al”, which is directly related to the services offered by the Complainant, is a clear demonstration of bad faith use as the addition of “-al” does not provide any distinctiveness to the disputed domain name, Taner Aksoy v. Turistik Tic. Ltd. Şti., WIPO Case No. D2010-0556.

Furthermore, as mentioned above, the Respondent was using the disputed domain name for the same purpose as the Complainant - to provide an online platform for the buyers and sellers to get together. Therefore, the Panel is of the opinion that the Respondent has registered the disputed domain name to attract for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s trademark.

Additionally, the Complainant has submitted evidence which shows that the Respondent has offered to sell the disputed domain name to the Complainant, which further demonstrates bad faith registration and use, CBS Broadcasting, Inc. v. Gaddoor Saidi, WIPO Case No. D2000-0243.

As in Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003 after examining all circumstances surrounding the registration and use of the disputed domain name, the Panel finds that the Respondent has 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 <sahibinden-al.com> be transferred to the Complainant.

Gökhan Gökçe
Sole Panelist
Date: April 24, 2013

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