WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Obss Bilisim Bilgisayar Hizmetleri Danismanlik Sanayi Ve Ticaret Limited Sirketi v. Domain Privacy Service FBO Registrant / Cys Systemptia, OBSS
Case No. D2015-0396
1. The Parties
The Complainant is Obss Bilisim Bilgisayar Hizmetleri Danismanlik Sanayi Ve Ticaret Limited Sirketi of Istanbul, Turkey, represented by Domain Koruma, Turkey.
The Respondent is Domain Privacy Service FBO Registrant of Burlington, United States of America / Cys Systemptia, OBSS of Istanbul, Turkey.
2. The Domain Name and Registrar
The disputed domain name <obss.com> is registered with Domain.com, LLC (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 6, 2015. On March 6, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 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 March 16, 2015 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 March 20, 2015. On March 27, 2015, the Complainant requested Turkish to be the language of proceeding. On March 31, 2015, the Center received the Complainant's confirmation email regarding certification.
The Center verified that the Complaint and 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, and the proceeding commenced on April 9, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was April 29, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 30, 2015.
The Center appointed Kaya Köklü as the sole panelist in this matter on May 11, 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.
4. Factual Background
The Complainant is a Turkish company offering a wide range of services in the finance and telecommunication sector since 2005.
The Complainant is the owner of the figurative trademark OBSS OPEN BUSINESS SOFTWARE SOLUTIONS, which was applied for on January 20, 2012 and has been registered by the Turkish Patent Institute on July 15, 2014. Furthermore, the Complainant applied for trademark protection in Turkey for the word mark OBSS MOBILE on December 12, 2013. According to the public trademark register of the Turkish Patent Institute, a decision on its registration has not yet been made.
The Complainant owns and operates the domain name <obss.com.tr>.
The disputed domain name <obss.com> was created on August 5, 2003.
The true identity of the Respondent remains unclear as its name and contact details as revealed by the domain name privacy service are apparently not complete and at least partly false.
According to the case file, the disputed domain name has been continuously offered for sale since its registration.
5. Parties' Contentions
The Complainant requests the transfer of the disputed domain name.
The Complainant is of the opinion that the term "obss" is the essential element of the disputed domain name and exactly the same as the OBSS BUSINESS SOFTWARE SOLUTIONS trademark of the Complainant.
Furthermore, the Complainant argues that the Respondent has no rights or legitimate interests in the disputed domain name and must have registered and used the disputed domain name in bad faith.
It alleges that the Respondent is in fact a former founder of the Complainant who left the company in 2012.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
A. Language of the Administrative Proceeding
Although the Complainant submitted its amended Complaint in the Turkish language, the Panel determines in accordance the Rules, paragraph 11(a), that the language of this administrative proceeding shall be the language of the Registration Agreement, namely the English language. In the absence of a mutual agreement among the Parties, the mere assertion that the true Respondent might be a Turkish citizen does not sufficiently justify to continue the administrative proceeding in the Turkish language.
B. Legal Assessment
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 a trademark 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.
B.1. Identical or Confusingly Similar
The Panel finds that the disputed domain name is confusingly similar to the OBSS BUSINESS SOFTWARE SOLUTIONS 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 using the figurative OBSS OPEN BUSINESS SOFTWARE SOLUTIONS trademark since 2012. The Panel further notes that the Complainant may hold rights in its company name since 2005. Since then, the Complainant has used the distinctive part of its trademark, "OBSS", as part of its company name.
The disputed domain name is confusingly similar to the Complainant's OBSS BUSINESS SOFTWARE SOLUTIONS trademark as it incorporates the distinctive part of the mark, namely "OBSS", in its entirety.
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.2. Rights or Legitimate Interests
Even in the absence of a Response, the Complainant has to demonstrate that the Respondent has no rights or legitimate interests in the disputed domain name.
The Panel recognizes that this burden of proof would often result in the impossible task of proving a negative, in particular as the evidence needed to show the Respondent's lack of rights or legitimate interests is 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 Complainant has provided uncontested prima facie evidence that the Respondent has not been granted with any explicit permission or license to use the Complainant's trademark OBSS BUSINESS SOFTWARE SOLUTIONS or any distinctive part of it in the disputed domain name.
However, the Complainant kept silent on the fact that the Respondent registered the disputed domain name prior to the official founding of the Complainant's company and even more than eight years prior to its first trademark registration.
Even if the Complainant's allegation that the Respondent is a former partner of the Complainant is accepted to be true, it remains unclear whether the Respondent may nevertheless rely on rights or at least legitimate interests in the disputed domain name based of the first come, first served principle.
In light of the findings below concerning the third element of paragraph 4(a)(iii) of the Policy, a final decision on possibly existing rights or legitimate interests does not need to be made by the Panel.
B.3. Registered and Used in Bad Faith
The Panel is not convinced that the Respondent has registered the disputed domain name in bad faith.
The Complainant did not provide any document or even argument why registration of the disputed domain name prior to the Complainant's founding in 2005 and even eight years prior to the Complainant's first trademark registration, should nevertheless be considered to have occurred in bad faith.
In view of the Panel and in the circumstances of this case, the offer to sell the disputed domain name at the website to which the disputed domain name resolves is not sufficient to establish bad faith registration, particularly as the disputed domain name was apparently offered for sale right from its first date of registration and, hence, before the Complainant was even founded. Also, the unproved assertion that the true Respondent is a former partner of the Complainant – even if accepted to be true – does not necessarily justify the conclusion that the disputed domain name was registered in bad faith.
Taking all facts and circumstances of the case into account, the Panel finds, on balance, that the disputed domain name was not registered in bad faith. Consequently, the Panel has to render a non liquet decision confirming that the Complainant has not satisfied the third element of the Policy, namely, paragraph 4(a)(iii) of the Policy.
For the foregoing reasons, the Complaint is denied.
Date: May 25, 2015