WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Mehmet Kamil Olcar v. Suat Ergun
Case No. D2014-1997
1. The Parties
The Complainant is Mehmet Kamil Olcar of Pompano Beach, Florida, United States of America ("United States").
The Respondent is Suat Ergun of Balikesir, Turkey.
2. The Domain Name and Registrar
The disputed domain name <hurok.com> 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 November 12, 2014. On November 13, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 13, 2014, 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 November 18, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was December 8, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on December 9, 2014.
The Center appointed Steven A. Maier as the sole panelist in this matter on December 12, 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 Panel issued a Procedural Order on December 15, 2014, directing the Complainant to provide documentary evidence in support of certain submissions contained in the Complaint together with certified translations thereof. The Complainant made further submissions accordingly on December 19, 2014. The Respondent failed to reply to the Complainant's further submissions by the date specified for any such reply.
The decision due date was extended to January 4, 2015.
4. Factual Background
The disputed domain name was registered on December 20, 2001.
At the date of the Panel's review, December 28, 2014, the disputed domain name resolved to a GoDaddy.com parking page which included links to a variety of sponsored listings.
5. Parties' Contentions
The Complainant submits that "Hurok" is a trademarked name which "has been used by the legal owners, the Olcars since the year 1981." The Complainant states that "Hurok Marble" is a business which specializes in the import and export of natural stone products which it manufactures in Turkey. The Complainant states that the business has operated since 1981 and that its products are exported to Europe, the Americas and the Caribbean, as a result of which the name "Hurok" has gained international recognition.
The Complainant submits a Turkish trademark registration certificate, number 2008 51541, for a figurative mark comprising a logo and the words HUROK MARBLE. The certificate is issued in the name of a Turkish limited liability company for goods in International Class 19 with effect from August 29, 2008.
The Complainant states that "Hurok Marble" is also registered as a corporation in Florida, United States and produces a printout from the Florida Department of State Division of Corporations stating that Hurok Marble LLC is a Florida Limited Liability Company and stating a filing date of June 13, 2005. The Complainant is listed as one of the Authorized Personnel associated with the company, as are Kemal E Olcar and Husnu Olcar. The Complainant states that this company is authorized to operate under the "Hurok" brand.
The Complainant submits that the disputed domain name is identical to the Complainant's brand name "Hurok".
The Complainant submits that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant states that the Respondent is in no way affiliated with the owners of the "Hurok Marble" business or the disputed domain name and that the disputed domain name has not been operational for a very long time.
The Complainant submits that the Respondent registered and has used the disputed domain name in bad faith. In particular, the Complainant states that Respondent was hired in Turkey to register the disputed domain name on behalf of the Complainant but made the registration in his own name. The Complainant submits that the Respondent has been contacted to remedy the situation but has refused to transfer the domain name unless an "elevated" sum is paid to him.
The Respondent did not reply to the Complainant's contentions.
C. Complainant's Further Submissions
As the Complainant's submissions concerning bad faith were not supported by any documentary evidence, the Panel directed that the Complainant submit any such documentary evidence in support of those claims together with certified translations thereof.
The Complainant stated by way of response that there was no document that evidenced the hiring of the Respondent to register the disputed domain name on behalf of the Complainant as this arrangement was made orally. The Complainant did, however, submit two emails and translations thereof in support of its assertion that the Respondent had been in negotiations with the Complainant concerning the transfer of the disputed domain name.
The first such document appears to be an email from the Respondent to Husnu Olcar dated March 18, 2013. According to the Complainant's translation, the email describes the Respondent's financial situation and then offers the Complainant two options in connection with "the Hurok.com domain name." One such option is to add the Respondent to the Complainant's payroll in order to "keep our current situation with the domain going on for another six years." The other is for the Respondent to send the Complainant an estimate for the purchase of the disputed domain name.
The translated email referred to above causes a difficulty for the Panel, as it is clear from a review of the original email (even to a non-Turkish speaker) that the phrase "the Hurok.com domain name" does not appear at the relevant point in the email and, indeed, that the email does not appear to contain any direct mention of the disputed domain name at all. The Panel must decide what weight, if any, to give the Complainant's translation in view of this misstatement.
Turning to the second email, the Turkish version of this appears from the email headers to be an email from Husnu Olcar to Kamil Olcar dated December 17, 2014. However, it appears from the body of the email that it is in fact an email, of unknown date, from Mr. Husnu Olcar to the Respondent. The Complainant provides no explanation for this confusion. The Complainant's translation of the email suggests that annual payments have been made to the Respondent in connection with the disputed domain name and that the Respondent has recently requested additional sums. However, because the Complainant has failed to produce an accurate copy of the original of this email, showing the sender, the recipient and the date, the Panel takes the view that this email should be disregarded in its entirety.
6. Discussion and Findings
In order to succeed in the Complaint, the Complainant is required to show that all three of the elements set out under paragraph 4(a) of the Policy are present. Those elements are:
(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) that the disputed domain name has been registered and is being used in bad faith.
Even in a case such as this where the Respondent has not contested the Complaint, it is still necessary for the Complainant to establish that all of the three above elements are present.
A. Identical or Confusingly Similar
The Complainant asserts in the Complaint that the name "Hurok" has been used in business by "the Olcars" since 1981. Specifically, the Complainant states that the names "Hurok" and "Hurok Marble" have been used since that time in connection with a business specializing in the import and export of natural stone products manufactured in Turkey, including exports to Europe, the Americas and the Caribbean.
The Complainant does not provide any further evidence of the ownership of rights in the name "Hurok" or of the trading that has taken place under that name. However, as the Respondent has failed to participate in these proceedings, the Complainant's assertions concerning these matters are not disputed.
The Complainant in this case is Mehmet Kamil Olcar and it is therefore he, and not any other legal entity, that must demonstrate that he has rights in a relevant trademark or service mark.
In this regard, the Turkish trademark registration for a logo and the words HUROK MARBLE is not of direct assistance to the Complainant because it is registered in the name of a Turkish limited company and not the Complainant himself.
Similarly, the registration of the Florida Limited Liability Company does not directly assist the Complainant because, according to the Complainant, it is this company and not any individual that is authorized to operate under the "Hurok" brand.
The first limb of the test under paragraph 4(a) of the Policy is commonly approached as a low-threshold test and is intended primarily to establish that a complainant has a bona fide basis, or standing, to bring the complaint. While the Complainant's submissions and evidence in this regard are far from satisfactory, the Panel is prepared to accept on the information available that there has been a level of trading under the name "Hurok" over a period of years since 1981 such as would give rise to some level of unregistered trademark rights in that name for the purposes of the Policy. Further, since the Florida company was registered in 2005, and the Turkish trademark in 2008, the Panel accepts that the Complainant himself is likely to have some level of trademark rights in the name "Hurok", whether by way of prior rights or rights in parallel with either the Turkish or Florida companies. Further, the Panel considers that the Complainant is acting in these proceedings as agent for the Turkish and/or the Florida company, and notes in this regard that the Complainant has produced evidence that he is an authorized officer of the latter. In any event, the Panel considers that to deny this Complaint on the basis that it has been brought in the name of the wrong legal entity would be an unduly harsh and technical outcome, particularly in a case which is not contested.
The disputed domain name is identical to the name "hurok" (and additionally confusingly similar to HUROK MARBLE) but for the addition of the generic Top-Level Domain ("gTLD") ".com", which is to be ignored for the purposes of comparison. Accordingly, the Panel finds that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights and the first limb of the test under paragraph 4(a) is satisfied.
B. Rights or Legitimate Interests
The Complainant asserts that the Respondent has no connection with the "Hurok" business or the disputed domain name, other than having been hired in Turkey some years ago to register the disputed domain name on behalf of that business.
The Respondent has not filed any Response in this proceeding and, in the circumstances, has neither disputed the Complainant's submission concerning the registration of the disputed domain name nor made any submission of his own concerning any rights or interests that he may claim to have in respect of the name.
Where one party registers a domain name on behalf on another, the party making the registration does not obtain any rights or legitimate interests in the domain name by reason only of having made the registration. In this case, there is no evidence available to the Panel of any rights or legitimate interests that the Respondent may otherwise have obtained in the disputed domain name and, accordingly, the Panel finds that the Respondent has no such rights or legitimate interests and that the second limb of the test under paragraph 4(a) is satisfied.
C. Registered and Used in Bad Faith
On the basis of the (albeit minimal) evidence submitted by the Complainant, the Panel accepts on balance that there has at some time been a relationship between the Complainant and the Respondent and that the Respondent registered the disputed domain name in connection with the "Hurok" business operated by the Complainant.
The Panel also notes that the disputed domain name comprises the name "hurok" in an "unadorned" form together with the gTLD ".com". There is no evidence before the Panel that the term "hurok" is a generic or descriptive term or that it has any meaning in commerce other than to refer to the Complainant's business. Accordingly, there does not appear to the Panel to be any use that that the Respondent could legitimately make of the disputed domain name otherwise than in connection with the Complainant's business.
The Complainant asserts that, having registered the disputed domain name on behalf of the "Hurok" business, the Respondent now refuses to transfer it unless he is paid an "elevated" sum of money. Where one party registers a domain name on behalf of another there may be circumstances that justify a refusal to transfer that domain name: for example, the registrant may have a "lien" or other legal claim on the domain name if monies are contractually due to him in connection with the registration. In this case, however, there is no evidence that the Respondent is withholding the disputed domain name from the Complainant in circumstances of this nature. It appears from the Complainant's evidence (although incomplete and unsatisfactory for the reasons stated above) that in order to transfer the disputed domain name to the Complainant the Respondent has required either to be added to the Complainant's payroll for a period of six years or to be paid a lump sum, in a sum to be determined, by the Complainant. There is no evidence before the Panel that the Respondent has any contractual or other entitlement to receive payment of this nature in connection with the disputed domain name, and if the Respondent does claim to have any such entitlement, then it was clearly incumbent upon him to file a Response to that effect in these proceedings.
The Panel concludes, in summary, that the Respondent registered the disputed domain name in connection with the Complainant's business; that there does not appear to be any other use that the Respondent could legitimately make of the disputed domain name; that he has refused to transfer it to the Complainant otherwise than in return for financial consideration to which he has not demonstrated an entitlement; and that the disputed domain name is currently being used for the purposes of a parking page including various sponsored links which have no apparent connection with the Complainant. Taking all these circumstances into consideration, the Panel concludes, on balance, that the disputed domain name was registered and has been used in bad faith and the third limb of the test under paragraph 4(a) of the Policy is satisfied.
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 <hurok.com> be transferred to the Complainant.
Steven A. Maier
Date: January 2, 2015