WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Krea İçerik Hizmetleri ve Prodüksiyon Anonim Şirketi v. Hans Martin
Case No. D2013-0497
1. The Parties
The Complainant is Krea İçerik Hizmetleri ve Prodüksiyon Anonim Şirketi of Istanbul, Turkey, represented by Salih Bulut, Turkey.
The Respondent is Hans Martin of Sturttgart, Germany.
2. The Domain Name and Registrar
The disputed domain name <ligtvizle.net> is registered with GoDaddy.com, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 12, 2013. On March 12, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 13, 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.
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 March 19, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was April 8, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 9, 2013.
The Center appointed Dr. Clive N.A. Trotman as the sole panelist in this matter on April 17, 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
According to the Complainant, formerly since 1999 it was known as Dijital Platform iletişim Hizmetleri A.Ş., and adopted its present company name on February 27, 2012. The Complainant, also known as Digiturk, owns the leadimg digital broadcasting platform in Turkey. In particular, the Complainant owns the channel “Lig TV”, a pay TV platform focused on sports. Lig TV has broadcast Turkish Super League football matches since 2001, for which exclusive rights the Complainant has paid some hundreds of millions of US dollars.
The Complainant owns the following registered trademark for LIG TV:
LIG TV, Turkish Patent Institute, registration number 2001-12344, registration date June 25, 2001, classes 38 and 41 (television broadcasting services, TV programs production services).
The Complainant also owns the popular domain name <ligtv.com.tr>, the extension “.com.tr” being apparently available only to trademark owners with business in Turkey.
No information is available about the Respondent except for such information as was provided for the registration of the disputed domain name. According to the information provided by the Registrar the disputed domain name was registered to the Respondent on November 16, 2009.
5. Parties’ Contentions
The Complainant has produced a copy of an English translation of the document of registration of the trademark LIG TV with Turkish Patent Institute.
The Complainant contends that the disputed domain name is confusingly similar to a trademark in which it has rights. The components of the disputed domain name are LIG TV, being the trademark of the Complainant’s TV service for broadcasting league TV and sports, and the word “izle” which is Turkish for “watch”.
The Complainant further contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The website to which it resolves is entirely in Turkish and the Respondent cannot claim to have been unaware of the Complainant’s trademark. The Complainant has not granted the Respondent permission to use the trademark LIG TV. The Respondent’s use of the disputed domain name is not legitimate and is for the broadcast through the Internet of Turkish Super League football matches over which the Complainant holds exclusive broadcasting rights.
The Complainant further contends that the disputed domain name was registered and is being used in bad faith. Since 2009, the Respondent has broadcast Turkish Super League football matches without authority to do so. The Respondent uses many headings in its web pages such as “Bedava Lig TV izle”, which means “Watch Free LigTV”: “2009-2010 Sezonu Tüm Maçlan LigTvizle.net” which can be translated as “All matches of the season 2009-2010 are on Ligtvizle.net”; and “LigTV canli” which means “Live LigTV”. The Respondent’s purpose is to attract Internet visitors by means of the Complainant’s trademark and by offering Lig TV broadcasts free of charge. The Respondent gains commercial benefit by showing advertisements to Internet visitors attracted to its website.
The Complainant contends that the disputed domain name was initially registered to Ahmet Cakir with a wrong address and telephone number. Later it was transferred into the name of the present Respondent, who has given an unreachable German address and telephone number. The Complainant also contends that the Respondent has used a false name and address.
The Complainant requests the transfer to itself of the disputed.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy states that the Respondent is required to submit to a mandatory administrative proceeding in the event that the Complainant asserts to the applicable Provider, in compliance with the Rules of Procedure, that:
“(i) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) you have no rights or legitimate interests in respect of the domain name; and
(iii) your domain name has been registered and is being used in bad faith.”
The Complainant has made the relevant assertions as above. The dispute is properly within the scope of the Policy and the Panel has jurisdiction to decide the dispute.
The Panel notes that the courier service engaged to deliver the Complaint and documents to the Respondent was unable to trace the physical address provided by the Respondent, and found the accompanying telephone number to be unreachable. Emails from the Center to the email addresses provided by the Respondent in the WhoIs database were undeliverable.
Paragraph 1 of the Rules defines a Respondent as “the holder of a domain-name registration against which a complaint is initiated”. The Panel is satisfied that the Center, by addressing the Complaint in accordance with the registrant contact details provided, has fulfilled its obligations to attempt to contact the Respondent in order to serve the Complaint in accordance with paragraphs 2 and 4 of the Rules.
A. Identical or Confusingly Similar
The Panel is satisfied upon the evidence that the Complainant has rights in the registered trademark LIG TV.
The disputed domain name is <ligtvizle.net>. This may be broken down to “lig tv izle”, and “.net” which is generally inconsequential under the UDRP for the purpose of finding identity or confusing similarity. A screenshot of the website of the disputed domain name has been produced by the Complainant, which has annotated it with translations from Turkish into English. It becomes apparent that “Lig”, as in the list of “Turkey SuperLig Football Clubs”, is equivalent to “League”. Thus, LIG TV means “League TV and “izle” has been translated by the Complainant as “watch”. The first component of the disputed domain name, “ligtv”, is found to be confusingly similar to the Complainant’s trademark LIG TV. The added word “izle” is found not to provide any distinction from the Complainant’s trademark but to add to the confusing similarity by projecting the impression that Internet visitors may watch “Lig TV”, in which the Complainant has trademark rights. The Panel finds the disputed domain name to be confusingly similar to a trademark in which the Complainant has rights within the meaning of paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The onus is upon the Complainant to prove under paragraph 4(a)(ii) of the Policy that the Respondent does not have rights or legitimate interests in the disputed domain name. The Complainant has asserted prima facie that it has never had any relationship with the Respondent or granted to the Respondent any permission or licence to use the trademark LIG TV. Paragraph 4(c) of the Policy provides for the Respondent to rebut the Complainant’s prima facie case by demonstrating to the satisfaction of the Panel:
“(i) before any notice to you of the dispute, your [the Respondent’s] use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the disputed domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.”
The provisions of paragraph 4(c) of the Policy are without limitation, and rights or legitimate interests may be established otherwise by the Respondent.
The Respondent has not replied and the Panel has not been made aware of any basis upon which the Respondent might demonstrate its rights or legitimate interests in the disputed domain name. The Panel finds for the Complainant in the terms of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
The Complainant is required to prove under paragraph 4(a)(iii) of the Policy that the disputed domain name has been registered in bad faith and is being used in bad faith. Paragraph 4(b) of the Policy lists four alternative circumstances, without limitation, that shall be evidence of the registration and use of a domain name in bad faith by a Respondent, as follows:
“(i) circumstances indicating that you have registered or you have 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) you have 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 you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your 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 your website or location or of a product or service on your website or location.”
Evidence in the form of a screenshot of the website to which the disputed domain name resolves, shows a heading banner picturing a football match, overprinted with a stylistic rendering of the words “Lig TV net izle”, which as discussed above, translate to “Watch Lig TV net”. The banner includes pictures of Turkish footballers. A button labelled “LigTV CANLI” (“Lig TV live”), a notice “Bedava Lig TV izle” (“Watch Free LigTV”), and a listing of broadcast times of football matches, would project initially to at least some Internet visitors that through this website, Turkish League Football may be viewed. The provision of such content, according to the evidence, is the exclusive prerogative of the Complainant. The Respondent therefore can have no legitimate authority to supply such content.
It is not in evidence as to whether such content is in reality provided through the website of the disputed domain name. The website also displays, however, buttons below the banner, labeled “Süperbahis” and “betsson”, which the Complainant has annotated “ADS” and which have the standard appearance of being buttons leading the visitor through links to the websites of advertisers. A prominent side panel advertisement, appearing to be a link of the type targeted to individual categories of Internet users by user-profiling technology, promotes in this instance “Live Casino”, with a picture of a person and a gaming table. It may reasonably be concluded that the Respondent has set out to attract Internet visitors to the website of the disputed domain name, whereupon they are shown advertisements and links to other websites.
The Panel finds it more probable than not that the Respondent’s purpose is to gain revenue by way of the business model known as pay-per-click, or click-through, whereby advertisers would pay a fee to the Respondent for referrals to them. Pay-per-click commerce is not necessarily illegitimate, in and of itself, and is widely used legitimately to defray some costs of providing free information or as a stand-alone business.
For the Respondent’s pay-per-click operation to succeed commercially, however, the website must attract visitors. On the evidence, the Respondent’s method of attracting visitors has been to incorporate the Complainant’s trademark into the disputed domain name without the Complainant’s authority. The Panel finds, on the balance of probabilities, that the Respondent has attempted to attract visitors by creating a likelihood of confusion between the disputed domain name and the Complainant’s trademark, for commercial purposes, within the meaning of paragraph 4(b)(iv) of the Policy, constituting use of the disputed domain name in bad faith. The Panel further finds on the evidence and on the balance of probabilities that the disputed domain name was registered for the bad faith purpose for which it has been used, constituting registration in bad faith.
Therefore the Panel finds for the Complainant under 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 <ligtvizle.net> be transferred to the Complainant.
Dr. Clive N.A. Trotman
Date: April 26, 2013