WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Gitti Gidiyor Bilgi Teknolojileri Sanayi ve Ticaret Anonim Şirketi v. Domain Admin at whoisprotection.biz / TURGAY EBCİN
Case No. D2014-1390
1. The Parties
The Complainant is Gitti Gidiyor Bilgi Teknolojileri Sanayi ve Ticaret Anonim Şirketi of Istanbul, Turkey, represented by Hogan Lovells (Paris) LLP, France.
The Respondent is Domain Admin at whoisprotection.biz of Istanbul, Turkey / TURGAY EBCİN of Istanbul, Turkey.
2. The Domain Name and Registrar
The disputed domain name <gittigidiyor-tr.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 August 14, 2014. On August 14, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 15, 2014, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on August 21, 2014, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on August 26, 2014.
On August 21, 2014, the Center transmitted the language of the proceedings document to the parties in both English and Turkish. On August 21, 2014, the Complainant requested English to be the language of the proceedings. The Respondent objected to the Complainant’s request on August 21, 2014.
The Center verified that the Complaint together with the amended 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, both in English and Turkish, and the proceedings commenced on August 27, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was September 16, 2014. The Respondent did not submit any formal response. Accordingly, the Center notified the parties about the commencement of panel appointment process on September 17, 2014.
The Center appointed Dilek Ustun Ekdial as the sole panelist in this matter on September 23, 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.
4. Factual Background
The Complainant, Gitti Gidiyor Bilgi Teknolojileri Sanayi ve Ticaret Anonim Şirketi, is a subsidiary of eBay Inc., which operates the world’s largest online marketplace, and the most widely-used online marketplace in Turkey, founded in 2001 and acquired by eBay Inc. in 2007. GittiGidiyor (in English “Going, going, and gone”) is recognized in Turkey as the leading online marketplace, with over 8 million registered users, over 500 thousand visitors per day and 4 million listings at any given time.
The domain names consisting of the term “gittigidiyor” owned by the Complainant, include the following: <gittigidiyor.com> (registered in 2000), <gittigidiyor.net> and <gittigidiyor.org> (both registered in 2001), <gittigidiyor.com.tr> (registered in 2004) and <gittigidiyor.com.ru> (registered in 2011). In addition, the Complainant is also the registrant of the following domain names containing the term “gittigidiyor”:
The Complainant has registered several trademarks consisting of or including the term “gittigidiyor” in Turkey in connection with online trading services and shopping, such as registration no. 2012 54220 with the priority date of June 13, 2012.
The disputed domain name <gittigidiyor-tr.com> was registered by the Respondent on August 16, 2013.
5. Parties’ Contentions
The Complainant alleges that the disputed domain name is identical or confusingly similar with its registered GITTIGIDIYOR trademark since it incorporates exactly and entirely the GITTIGIDIYOR trademark as distinctive and main element.
According to the Complainant, the disputed domain name incorporates the Complainant’s distinctive GITTIGIDIYOR trademark, with the mere addition of a hyphen and the country code Top-Level Domain (ccTLD) for Turkey, “tr”. The Complainant refers to Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr. WIPO Case No. D2000-1525, which stated that “when a domain name wholly incorporates a complainant’s registered mark that is sufficient to establish identity or confusing similarity for purposes of the Policy.”
The Complainant adds that the addition of the ccTLD for Turkey, “tr”, is insufficient to distinguish the disputed domain name from the Complainant’s trademark given that the distinctive element in the disputed domain name is the GITTIGIDIYOR trademark. On the contrary, the addition of the “tr” reinforces the confusing similarity with the Complainant given that the Complainant services are provided to consumers in Turkey where the Complainant enjoys explosive popularity.
The Complainant submits that the Respondent has no rights or legitimate interests in respect of the disputed domain name. Further, the Respondent is not a licensee of the Complainant and does not have the Complainant’s permission or authorization to use the GITTIGIDIYOR trademark of the Complainant.
The Respondent’s websites offer online sale of products. The Respondent is thus intentionally attempting to attract Internet users to the Respondent’s website for commercial gain, by creating a likelihood of confusion with the Complainant’s famous trademarks as to the source, sponsorship, affiliation, or endorsement of this website or of products on the website within the meaning of paragraph 4(b)(iv) of the Policy.
The Respondent cannot assert that it is commonly known by the disputed domain name in accordance with paragraph 4(c)(ii) of the Policy, and does not appear to hold trademark rights in Turkey in the term “gittigidiyor”, as revealed by a trademark search carried out by the Complainant.
The disputed domain name was registered and is being used in bad faith.
The Respondent did not formally reply to the Complainant’s contentions. However, in its email communication of August 21, 2014, the Respondent stated that “gitti gidiyor” areTurkish words used in daily life and that the disputed domain name can be sold to eBay Inc.
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 and 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
According to paragraph 11(a) of the Rules, the language of the administrative proceeding shall be the language of the registration agreement unless the Panel decides otherwise. The spirit of paragraph 11(a) of the Rules is to ensure fairness in the selection of the language by giving full consideration to the parties’ level of comfort with the language, the expenses to be incurred and possibility of delay of the proceeding in the event translation is required.
Although the language of the Registration Agreement is Turkish, 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 considering the Respondent’s sufficient proficiency in English, as demonstrated by its email communication of August 26, 2014 from which it follows that it understands the Complaint in English, as well as the Respondent’s failure to respond to the Complaint, despite the Center’s notification and administration of the proceedings both in Turkish and English.
B. Identical or Confusingly Similar
The Complainant is the owner of the trademark GITTIGIDIYOR, which is protected by numerous trademark registrations in Turkey.
The Panel concurs with the opinion of several prior UDRP panels that when a domain name wholly incorporates a complainant’s registered trademark that may be sufficient to establish confusing similarity for purposes of the Policy. See, e.g., Kabushiki Kaisha Hitachi Seisakusho (d/b/a Hitachi Ltd) v. Arthur Wrangle, WIPO Case No. D2005-1105; Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903; Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr., WIPO Case No. D2000-1525; EAuto, L.L.C. v. Triple S. Auto Parts d/b/a Kung Fu Yea Enterprises, Inc., WIPO Case No. D2000-0047; Bayerische Motoren Werke AG v. bmwcar.com, WIPO Case No. D2002-0615.
In this Panel’s view, the addition of “-tr”, which is an abbreviation for “Turkey”, to the Complainant’s trademark does not distinguish the disputed domain name from the Complainant’s trademark. As regards the generic Top-Level Domain (“gTLD”) “.com”, it may usually be disregarded for the purposes of comparison made under paragraph 4(a)(i) of the Policy.
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 type 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.
Additionally, the Respondent has not 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 GITTIGIDIYOR trademark in 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. The Panel finds that given the use made of the disputed domain name that when the Respondent registered the disputed domain name it must have known that GITTIGIDIYOR is the trademark of the Complainant and that it registered the disputed domain name because it would be recognized as such.
The Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name and 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 the Respondent must have been aware of the rights the Complainant has in the well-known Turkish trademark gıttıgıdıyor and the value of said trademark at the moment of the registration of the disputed domain name. It is obvious to this Panel that, by using the disputed domain name, the Respondent‘s intention must have been to intentionally attempt to attract for commercial gain, Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website. Namely, the Respondent’s use of the disputed domain name to point to a website offering similar services to those offered by the Complainant (an online store, albeit for specific brands of products, although these are, according to the Complainant, not genuine products but counterfeit goods), further demonstrates that the Respondent was aware of the Complainant and thus deliberately registered the disputed domain name to create a false association with the Complainant.
In view of the above, after examining all circumstances surrounding the registration and use of the disputed domain name, the Panel 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 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 <gittigidiyor-tr.com> be transferred to the Complainant.
Dilek Ustun Ekdial
Date: October 8, 2014