WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Firat Plastik Kaucuk San. ve Tic. A.S v. William James
Case No. D2014-1473
1. The Parties
Complainant is Firat Plastik Kaucuk San. ve Tic. A.S, Istanbul, Turkey, represented by Turkticaret.Net Internet Hizmetleri A.S., Turkey.
Respondent is William James, New York City, United States of America.
2. The Domain Name and Registrar
The disputed domain name <friat.com> is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on August 28, 2014. On August 28, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 19, 2014, the Registrar transmitted by email to the Center its verification response confirming that 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 Respondent of the Complaint, and the proceedings commenced on September 3, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was September 23, 2014. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on September 24, 2014.
The Center appointed Stephanie G. Hartung as the sole panelist in this matter on September 29, 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.
On October 7, 2014, administrative Panel Procedural Order No. 1 was issued to the Parties.
Complainant was requested by the Panel to provide an English translation of the trademark registration certificate documents and/or to submit additional documentation in the English language which would allow the Panel to confirm that the respective trademarks are owned by Complainant and evidence that the trademarks are still valid. On October 9, 2014, Complainant furnished the trademark registration document in English. No comment/submission was received from Respondent.
4. Factual Background
Complainant is a building materials manufacturer with legal domicile in Turkey.
Complainant has provided evidence that it is the registered owner of the following international trademark FIRAT:
Word-/device mark FIRAT, International, Registration No. 925645; Registration Date: April 4, 2007; Status: Active.
The disputed domain name <friat.com> was registered on April 23, 2014 and redirects to a website at "www.friat.com" which is a typical default website page informing Internet users of various technical problems why this website cannot be reached.
Complainant requests that the disputed domain name be transferred to Complainant.
5. Parties' Contentions
Complainant asserts that it started its manufacturing activities in the field of plastic building materials already in 1972 and that nowadays over 4,500 products including PVC drinking water pipes, cable protection pipes, draining pipes, telecommunication cable protection pipes, irrigation pipes and fittings are being produced and exported to 70 countries on 4 continents under the FIRAT trademark. Consequently, Complainant has registered its FIRAT brand as trademark as well as domain names in those countries where Complainant's products are being exported and that, therefore, the FIRAT trademark is nowadays globally known in the plastic pipe industry.
Complainant suggests that the disputed domain name is confusingly similar to its FIRAT trademark since it is a simple misspelling of Complainant's domain name <firat.com> as well as of its registered FIRAT trademark.
Complainant further claims that Respondent has no rights or legitimate interests in respect of the disputed domain name since Respondent is not using the disputed domain name for the offering of any products or services nor makes Respondent a legitimate noncommercial or fair use thereof. Complainant asserts that to the best of its knowledge the only use of the disputed domain name is opening email accounts under <friat.com> which are equivalent existing email accounts under <firat.com> in order to send fraud emails to Complainant's international customers/resellers.
Finally, Complainant suggests that the disputed domain name was registered and is being used in bad faith since the fraud emails sent by Respondent to Complainant's customers/resellers state that Complainant's bank account information apparently had changed and that, therefore, invoices should be wired to the bank account details provided in those fraud emails.
Respondent did not reply to Complainant's contentions.
6. Discussion and Findings
Under paragraph 4(a) of the Policy, Complainant carries the burden of proving:
(i) That the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) That 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.
Respondent's default in the case at hand does not automatically result in a decision in favor of Complainant, however, paragraph 5(e) of the Rules provides that if Respondent does not submit a Response, in the absence of special circumstances, the Panel is to decide the dispute solely based upon the Complaint
A. Identical or Confusingly Similar
The Panel concludes that the disputed domain name <friat.com> is confusingly similar to the FIRAT trademark in which Complainant has shown to have rights.
The disputed domain name incorporates the FIRAT trademark in its entirety, except the typo-misspelling arising from the letter switch "FIRAT" into "FRIAT". Numerous UDRP panels have recognized that incorporating a trademark in its entirety can be sufficient to establish that the domain name is at least confusingly similar to a registered trademark (see e.g. PepsiCo, Inc. v. PEPSI, SRL (a/k/a P.E.P.S.I. and EMS Computer Industry (a/k/a EMS), WIPO Case No. D2003-0696). The fact that the disputed domain name obviously includes a simple misspelling of Complainant's FIRAT trademark varying by just one letter switch is not at all in contrast to such finding of a confusing similarity. Typo-squatted domain names are on the contrary intended to be confusing so that Internet users, who unwillingly make common type errors, will enter the typo-squatted domain name instead of the correctly spelt trademark (see also: Intesa Sanpaolo S.p.A. v. Ni Hao/Two Stooges LLC, WIPO Case No. D2011-1640; National Association of Professional Baseball Leagues, Inc, d/b/a Minor League Baseball v. John Zuccarini, WIPO Case No. D2002-1011).
Therefore, the first element under the Policy as set forth by paragraph 4(a)(i) in the case at hand is fulfilled.
B. Rights or Legitimate Interests
The Panel is further convinced that on the basis of Complainant's undisputed contentions, Respondent apparently has neither made use of the disputed domain name in connection with a bona fide offering of goods or services, nor has Respondent been commonly known by the disputed domain name, nor can it be found that Respondent made a legitimate noncommercial or fair use without intent for commercial gain.
Complainant has produced evidence that the disputed domain name resolves to a typical default website with no specific content, moreover, that around August 26-27, 2014 emails were sent to some of Complainant's customers/resellers using the disputed domain name (e.g. as: […]@friat.com as well as a.[…]@friat.com) pretending that Complainant's bank account information had changed and that, therefore, invoices should be wired through bank account details provided in those e-mails.
Accordingly, Complainant has established a prima facie case that Respondent has no rights or legitimate interest in the disputed domain name. Now, the burden of production shifts to Respondent to come forward with appropriate allegations or evidence demonstrating to the contrary (see WIPO Overview of Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0") paragraph 2.1). In the case at hand, Respondent did not reply to Complainant's allegations as they were included in the Complaint duly notified to Respondent by the Center on September 3, 2014.
Therefore, the Panel finds that Complainant has also satisfied paragraph 4(a)(ii) and thus the second element of the Policy.
C. Registered and Used in Bad Faith
The Panel finally holds that the disputed domain name was registered and is being used by Respondent in bad faith.
The Panel takes the view that the sending of e-mails deriving from the disputed domain name, which in turn is confusingly similar to Complainant's FIRAT trademark and the corresponding domain name <firat.com> by means of a typical typo-squatting, is a clear indication that Respondent intentionally attempted to attract, for commercial gain, Internet users to another online location, by creating a likelihood of confusion with Complainant's FIRAT trademark and <firat.com> email addresses as to the source, sponsorship, affiliation or endorsement of Respondent's web location (e.g. email address). Such circumstances shall be evidence of registration and use of the disputed domain name in bad faith within the meaning of paragraph 4(b)(iv) of the Policy.
In connection with this finding, it also carries weight in the eyes of the Panel that Respondent apparently provided false WhoIs information for the disputed domain name as evidenced by the fact that Written Notice of the Complaint sent to Respondent by the Center on September 3, 2014 via courier could not be delivered since the provided address is unknown. Those circumstances taken altogether throw a light on Respondent's behavior which at least supports the finding of a registration and use of the disputed domain name in bad faith.
Therefore, the Panel finds that also the third element under the Policy set forth by paragraph 4(a)(iii) is fulfilled and that, accordingly, Complainant has satisfied all of the three requirements of paragraph 4(a) 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 <friat.com> be transferred to Complainant.
Stephanie Hartung, LL.M.
Date: October 15, 2014