WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Vista Turizm ve Seyahat A.Ş. v. Sefa Yapıcı
Case No. D2013-2057
1. The Parties
The Complainant is Vista Turizm ve Seyahat A.Ş. of Istanbul, Turkey, represented by Ayşegül Şahin, Turkey.
The Respondent is Sefa Yapıcı of Adana, Turkey.
2. The Domain Name and Registrar
The disputed domain name <vistaturizm.com> is registered with Melbourne IT Ltd (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 28, 2013. On November 28, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 29, 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. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on December 19, 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 the Respondent of the Complaint, and the proceedings commenced on December 23, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was January 12, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 13, 2014. On January 16, 2013, the Center received an email communication in Turkish from the Respondent. On January 20, 2014, the Respondent sent two email communications in Turkish.
The Center appointed Ugur G. Yalçiner as the sole panelist in this matter on January 17, 2014. 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.
The Respondent has filed its informal Response on January 16, 2014 by the Center in Turkish language. Even if the Response is filed late and in Turkish language, the Panel decided to consider it. According to the language of the Registration Agreement in the present case which is English, the administrative proceeding is continued in English language pursuant to paragraph 11(a) of the Rules.
4. Factual Background
The Complainant has an establishment in Turkey, engaged in tourism services. The Complainant is a member of Sabanci Holding, which is indicated as one of the biggest group holdings in Turkey.
The Complainant has a Turkish trademark registration no. 2006 51231 for VISTA VISTA TURIZM VE SEYAHAT A.Ş. + device which covers the services in the classes 39, 41 and 43. The application date of the cited mark is October 26, 2006. The Complainant has also trade name as “Vista Turizm ve Seyahat Anonim Şirketi” in Turkey. In Turkish language “turizm” means “tourism” in English language.
The Complainant has registered domain names as follows:
<vistatourism.com> on August 13, 1997;
<vistatourism.com.tr> on March 29, 2007;
<vistaturizm.com.tr> on February 22, 2013;
<vistabilet.com> on March 21, 2002;
<vistabilet.com.tr> on February 26, 2013.
The Respondent is an individual from Adana, Turkey.
The disputed domain name <vistaturizm.com> was registered on February 21, 2013.
5. Parties’ Contentions
The Complainant submits the trademark registration no. 2006 51231 VISTA VISTA TURIZM VE SEYAHAT A.Ş. + device in Turkey.
The Complainant submits that it has registered the following domain names: <vistatourism.com>, <vistatourism.com.tr>, <vistaturizm.com.tr>, <vistabilet.com> and <vistabilet.com.tr>.
The Complainant asserts that the Respondent has attempted to sell the disputed domain name to the Complainant. In addition, the disputed domain name redirects to the Respondent website at “www.tescilticaret.com” where the disputed domain name is offered for sale through Sedo.com. The Complainant has also submitted the email messages from the Respondent (Annex 3 to the Complaint) and online offer (Annex 6 to the Complaint) to sell the disputed domain name starting from USD 3,300 to USD 10,000. The Complainant claims this as an engagement of cybersquatting.
The Complainant states that the Respondent informed the Complainant that it is receiving the emails sent by the Complainant’s clients and that the competitors of the Complainant are also interested in the disputed domain name. The Respondent’s numerous email correspondences are submitted by the Complainant (Annex 6 to the Complaint). The Complaint also asserts that the Respondent replied to the email messages of the Complainant’s clients which were sent to the Respondent’s “[…]@vistaturizm.com” which created “serious reputation and information security risk”.
The Complainant asserts that the Respondent explicitly merchandises domain names via its website and refers to General Motors LLC v. Sefa Yapici, WIPO Case No. D2010-2230.
The Respondent did not submit any response in due time. But on January 16, 2013, the Center received an email communication from the Respondent in Turkish. The Respondent requested extension of time in order to respond to the Complaint and translation of the Complaint into Turkish. The Respondent’s assertions may be summarized as follows:
The Respondent refers to some articles of the European Convention on Human Rights and the Constitution of the Republic of Turkey in its Response. The Respondent states that it has registered the disputed domain name on December 4, 2010, and it didn’t renew it after 2 years because it didn’t need the disputed domain name. The Respondent also states that until 2012 no party has approached it to buy the disputed domain name. The Respondent states that it re-registered the same domain name on February 21, 2013. The Respondent states that the Complainant has approached it to buy the disputed domain name on July 3, 2013, by email.
The Responded stated that the Complainant has send the Respondent’s email address to its clients without being careful that it is owned by the Respondent. The Respondent also states that it has sent the incoming emails to the Complainant.
The Responded expressed that it is not in bad faith and the Complaint should be denied.
6. Discussion and Findings
Paragraph 15(a) of the Rules instructs this Panel to decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
The burden for the Complainant, under paragraph 4(a) of the Policy, is to show: (i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) the disputed domain name has been registered and is being used in bad faith.
As it is stated above, the Panel considers the Respondent’s late filed Response in Turkish, but does not accept the Respondent’s language request.
A. Identical or Confusingly Similar
Pursuant to paragraph 4(a)(i) of the Policy the Complainant must establish rights in a trademark and secondly that the disputed domain name is confusingly similar to the trademark in which the Complainant has rights.
The Complainant has a trademark registration VISTA VISTA TURIZM VE SEYAHAT A.Ş. + device, registered in Turkey from October 26, 2006, where the Respondent is also located.
The Complainant also has registered the domain names <vistatourism.com> from August 13, 1997, <vistatourism.com.tr> from March 29, 2007, <vistaturizm.com.tr> from February 22, 2013, <vistabilet.com> from March 21, 2002, <vistabilet.com.tr> from February 26, 2013.
The disputed domain name, <vistaturizm.com> is phonetically identical and also indicates same meaning in Turkish in terms of the words “turizm” and “tourism” with the Complainant’s registered domain names <vistatourism.com>, <vistatourism.com.tr> which are registered earlier than the disputed domain name, on August 13, 1997 and March 29, 2007.
The disputed domain name, <vistaturizm.com>, is confusingly similar to the Complainant’s trademark since the core element of the registered mark is “vista” and it contains the trade name of the Complainant as “vista turizm ve seyahat a.ş”.
The disputed domain name, <vistaturizm.com> is identical with the Complainant’s registered trademark. The Top-level indicator.”com” may not be taken into consideration when analyzing the identity or confusing similarity under the Policy.
The Panel finds that the disputed domain name is confusingly similar to Complainant’s trademark, trade name and identical with the Complainant’s registered domain name <vistaturizm.com.tr>.
B. Rights or Legitimate Interests
The Panel notes that the Complainant did not grant any license, permission or authorization to the Respondent to use the subject mark in the disputed domain name.
The Panel also notes that the Respondent doesn’t appear to have neither a trademark application nor a trademark registration for the word “vistaturizm”.
Therefore, in all the circumstances of this case the Panel finds that the Respondent lacks rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
According to paragraph 4(a)(iii) of the Policy, in order to prove the Respondent’s bad faith registration and use of the disputed domain name, the Complainant may show one of the following circumstances, in particular but without limitation:
(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 the Respondent’s 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 online 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 asserts that the Respondent registered and offered the disputed domain name for sale in bad faith. The Respondent’s offer for sale is a proof of bad faith registration when the bargains and the high profitable amount is taken into consideration. With respect to the issue of registration and use in bad faith, it is now well established that the act of registering a trademark as a domain name and then offering to sell it to the rightful trademark owner constitutes commercial use (see The Board of Regents of the University of Nebraska v. Bill Saedlo, WIPO Case No. D2000-0154).
In addition, the Panel finds that the Complainant has demonstrated that the Respondent approached it after having registered the disputed domain name and offered to sell it back to the Complainant for USD 3,300. This behaviour falls clearly within the definition of bad faith in the Policy, cf. paragraph 4(b)(i) (see Vakko Holding Anonim Sti. v. Esat Ist, WIPO Case No. D2001-1173).
The Respondent is resident in Turkey and the Respondent was, or should have been, aware of the Complainant’s registered mark at that time of the registration of the disputed domain name, which, in the circumstances of this case, is a proof of bad faith registration.
In the meantime, it has been determined that the Respondent has an email address for the disputed domain name and received the emails from the Complainant’s clients through its email address “firstname.lastname@example.org”. The Respondent stated that it sent some of these emails to the Complainant. It has also been determined that the Complainant has a similar email address as “email@example.com”. The word “vize” means “visa” in Turkish. The creation of an email which is identical to the Complainant’s email address also proves bad faith registration and use.
Given the foregoing, this Panel finds that the disputed domain name was registered and is being used in bad faith.
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 <vistaturizm.com> be transferred to the Complainant.
Ugur G. Yalçiner
Date: January 31, 2014