WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Barkın Plastik San. Tic. Ltd. Şti v. Altan Varol / Findukkiran

Case No. D2015-0194

1. The Parties

The Complainant is Barkın Plastik San. Tic. Ltd. Şti of Tekirdag, Turkey, represented by Basak Tosun, Turkey.

The Respondent is Altan Varol of Istanbul, Turkey / findukkiran of Istanbul, Turkey, self-represented.

2. The Domain Name and Registrar

The disputed domain name <barkinplastik.com> is registered with OnlineNic, Inc. d/b/a China-Channel.com (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 5, 2015. On February 5, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 6, 2015, 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 February 13, 2015 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant sent an email to the Center on February 13, 2015, noting that it chose not to amend the Complaint.

On February 13 and 14, 2015, the Center received email communications from the Respondent.

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 February 17, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was March 9, 2015. The Respondent did not file a formal Response.

The Center appointed Kaya Köklü as the sole panelist in this matter on March 18, 2015. 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.

In accordance with the Rules, paragraph 11(a), and since the parties have not agreed otherwise, the Panel finds that the language of the administrative proceeding is the language of the registration agreement for the disputed domain name <barkinplastik.com>, i.e., English.

The Panel notes that the Registrar has confirmed that “findukkiran” is the registrant of record of the disputed domain name. However, the email address of the registrant of record includes the name of the individual “Altan Varol”. For purposes of this decision, the Panel considers Altan Varol / Findukkiran as the Respondent in this matter.

4. Factual Background

The Complainant is a recycling company for plastic products based in Turkey. It converts waste plastic materials into pellets. According to the uncontested information provided in the case file, the Complainant started its business in April 2008.

It is the owner of the Turkish trademark BARKIN – ENDÜSTRİYEL GERİ DÖNÜŞÜM (registration number 2009 40628), applied for on July 29, 2009 and granted on September 3, 2010 for services covered by class 40.

The combination of the terms “barkın” and “plastik” is used by the Complainant also as its company name.

The Complainant is further the registered owner of various domain names comprising its mark BARKIN, in particular <barkinplastik.com.tr>, <barkinplastik.net> and <barkinplastik.tc>.

According to the current record, the disputed domain name <barkinplastik.com> was first registered on May 31, 2008 by the Respondent, who seems to be an individual residing in Turkey.

As indicated in the case file, the disputed domain name was offered for sale in September 2014. Upon request via email communication, the Complainant’s representatives were informed by the Respondent September 23, 2014 that a transfer of the disputed domain name would be possible against a payment in the amount of 25,000.00 TL (Turkish Lira). The Respondent took back its offer a couple of hours later by arguing that it was made accidentally.

At the time of the Decision, the disputed domain name did not resolve to an active website.

5. Parties’ Contentions

A. Complainant

The Complainant requests the transfer of the disputed domain name.

The Complainant is of the opinion that the disputed domain name is confusingly similar to its BARKIN – ENDÜSTRİYEL GERİ DÖNÜŞÜM trademark.

Furthermore, the Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant alleges that the Respondent has never used and does not intend to use its domain name in connection with a bona fide offering of goods and services.

Finally, it is argued that the Respondent has registered and is using the disputed domain name in bad faith. A strong indication for the Respondent’s bad faith is seen by the Complainant in the sales offer made by the Respondent via email on September 23, 2014.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

However, the Center received email communications on February 13 and 14, 2015 from the Respondent.

In its short email communications, the Respondent alleges that the sales offer was made falsely and that the disputed domain name is and was never dedicated for sale.

The Respondent did not respond to the Complainant’s contentions and did not request for denial of the Complaint.

6. Discussion and Findings

According to paragraph 14(a) and 15(a) of the Rules, the Panel shall decide the Complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable and on the basis of the Complaint where no Response has been submitted.

In accordance with paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements is satisfied:

(i) the disputed domain name is identical or confusingly similar to the trademarks in which the Complainant has rights; and

(ii) 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.

Paragraph 4(a) of the Policy states that the Complainant bears the burden of proving that all these requirements are fulfilled, even if the Respondent has not replied to the Complaint. Stanworth Development Limited v. E Net Marketing Ltd., WIPO Case No. D2007-1228.

However, concerning the uncontested information provided by the Complainant, the Panel may, where relevant, accept the provided reasonable factual allegations in the Complaint as true. Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110.

It is further noted that the Panel has taken note of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”) and, where appropriate, will decide consistent with the WIPO Overview 2.0.

A. Identical or Confusingly Similar

The Panel finds that the disputed domain name is confusingly similar to the BARKIN – ENDÜSTRIYEL GERİ DÖNÜŞÜM trademark of the Complainant.

First, the Panel confirms that the Complainant has satisfied the threshold requirement of having relevant trademark rights. As evidenced in the Complaint, the Complainant has been the owner of the Turkish trademark BARKIN – ENDÜSTRİYEL GERİ DÖNÜŞÜM, which was applied for in 2009 and granted by the Turkish Patent Institute in 2010. The Panel affirms that the decisive part of the trademark is BARKIN, which is a non-dictionary, fanciful term in the Turkish language.

The disputed domain name is confusingly similar to the Complainant’s trademark as it incorporates the trademark’s distinctive part BARKIN in its entirety. In view of the Panel, the addition of the term “plastik” is not suitable to preclude a confusing similarity with the Complainant’s trademark. On the contrary, the inclusion of the term “plastik”, which not only refers to the core material which is processed by the Complainant but is also part of its company name, even enhances the likelihood of confusion with the Complainant and its services provided under the trademark BARKIN – ENDÜSTRİYEL GERİ DÖNÜŞÜM.

In view of the above, the Panel is satisfied that the Complainant has met the requirements under paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

The Panel further finds that in the absence of a proper Response, the Respondent has failed to demonstrate any rights or legitimate interests in the disputed domain name.

While the burden of proof remains with the Complainant, the Panel recognizes that this would often result in the impossible task of proving a negative. This is as the evidence needed to show that the Respondent has any rights or legitimate interests lies primarily within the knowledge of the Respondent. Therefore, the Panel agrees with prior UDRP panels that the Complainant is required to make out a prima facie case before the burden of production of evidence shifts to the Respondent to show that it has rights or legitimate interests in the disputed domain name in order to meet the requirements of paragraph 4(a)(ii) of the Policy. Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455.

The Panel finds that the Complainant has satisfied this requirement, while the Respondent has failed to file any evidence or convincing argument to demonstrate a right or legitimate interest in the disputed domain name according to the Policy, paragraph 4(a)(ii) and 4(c).

In its Complaint, the Complainant has provided uncontested prima facie evidence that the Respondent has no rights or legitimate interests to use the Complainant’s trademark in the disputed domain name.

In the absence of a proper Response or a rebuttal by the Respondent, there is no indication in the current record that the Respondent is commonly known by the disputed domain name, in particular as it seems that the disputed domain name has never been actively used by the Respondent. Furthermore, the Respondent has failed to demonstrate any of the other nonexclusive circumstances evidencing rights or legitimate interests under the Policy, paragraph 4(c) or any other evidence of a right or legitimate interest in the disputed domain name. In particular, the Respondent has failed to show that the disputed domain name has been or is intended to be used in connection with a bona fide offering of goods or services.

The Panel is aware that the disputed domain name was first created approximately a year before the Complainant applied for trademark protection. However, it remains undisputed by the Respondent that the Complainant established its business with relevant goodwill already in April 2008, which means that the disputed domain name was registered shortly after the Complainant started its business. In the Panel’s view, this indicates that the Respondent must have known the Complainant and its business at the time of domain name registration and tries to misuse the first-come, first-served nature of the domain name registration system by registering the Complainant’s non-dictionary, fanciful company name, and subsequent trademark, with which the Respondent obviously has no connection. It is the Panel’s opinion that such behavior constitutes a typical practice of cybersquatting and, hence, should not establish priority rights or be assessed as a legitimate interest of the Respondent.

Consequently, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

The Panel is further convinced that the Respondent has registered and is using the disputed domain name in bad faith.

The Panel believes that it cannot be a coincidence that the Respondent registered the disputed domain name a few weeks after the Complainant started its business in April 2008. This assessment is particularly likely as the term “barkın” as used in the disputed domain name is a non-dictionary fanciful term in the Turkish language with which the Respondent has apparently no connection. Additionally, the combination of the terms “barkın” and “plastik” within the disputed domain name makes in view of the Panel only sense in relation to the Complainant’s business. The Panel concludes that the Respondent must have had the Complainant and its business in mind when it registered the disputed domain name end of May 2008.

Further, the Respondent apparently never actively used the disputed domain name in the past years. Instead, it offered the disputed domain name for sale at a price far beyond the cost of registration. The Panel notes that offering a domain name for sale is not per se an indication of bad faith. However, considering all the circumstances of the present case, the Panel believes that there is sufficient indication in the case file to assess that the Respondent registered the disputed domain for the sole purpose of selling it at a later time to the Complainant. The Panel is particularly convinced of the Respondent’s ill intention as it cannot conceive any good faith use of the disputed domain name which does not infringe the Complainant’s company name and trademark rights. In this regard, the Panel notes that it does not believe the Respondent’s allegation that the offer to sell the disputed domain name to the Complainant’s representatives has been made accidentally. In the Panel’s view this is a self-serving assertion only.

But there are even more indications of bad faith registration and use in the case file. According to the publicly-available WhoIs information, the Respondent apparently tried to conceal its true identity and contact details. Further, the Respondent rather preferred not to properly respond to the Complainant’s contentions, although being informed of the pending administrative proceedings by the Center. In view of the Panel, this further supports the Panel’s assessment that the Respondent registered and is using the disputed domain name in bad faith.

All in all, the Panel comes to the conclusion that the disputed domain name was registered and is being used in bad faith and that the Complainant consequently has satisfied the third element of the Policy, namely, paragraph 4(a)(iii) of the Policy.

7. Decision

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, <barkinplastik.com> be transferred to the Complainant.

Kaya Köklü
Sole Panelist
Date: March 27, 2015