WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
JC Decaux SA v. Ercan Yavuzer
Case No. D2015-1068
1. The Parties
The Complainant is JC Decaux SA of Plaisir, France, represented by Nameshield, France.
The Respondent is Ercan Yavuzer of Istanbul, Turkey.
2. The Domain Name and Registrar
The disputed domain name <jcdecauxturkey.com> is registered with IHS Telekom, Inc. (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on June 22, 2015. On June 22, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 23, 2015, 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.
On June 26, 2015, the Center notified the Parties in both English and Turkish that the language of the Registration Agreement for the disputed domain name was Turkish. On the same date, the Respondent, inter alia, requested for Turkish to be the language of the proceeding. On June 29, 2015, the Complainant requested for English to be the language of the proceeding.
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 proceeding commenced on July 2, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was July 22, 2015. As stated previously, the Respondent filed an email communication with the Center on June 26, 2015 and the Respondent did not submit a formal Response by the due date for Response. The Center notified the parties about the commencement of the Panel appointment process on July 23, 2015.
The Center appointed Kaya Köklü as the sole panelist in this matter on July 30, 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 globally active provider of outdoor advertising. The Complainant has around 12,000 employees and is present in more than 60 countries and 3,700 cities worldwide. The Complainant is listed on the Premier Marché of the Euronext Paris stock exchange and is part of Euronext 100 index.
The Complainant is the owner of several JCDECAUX word and word/figurative trademarks. The international trademark registration for JCDECAUX dates back to the year 2001.
Furthermore, the Complainant holds and operates various websites at domain names like <jcdecaux.net>, <jcdecaux.fr> and <jcdecaux.eu>.
The disputed domain name <jcdecauxturkey.com> was created on May 26, 2015.
The Respondent is an individual from Istanbul, Turkey. As the Complainant, he is active in the field of providing outdoor advertising. He is mentioned to be the graphic designer and programmer of a website linked to the domain names <hareketlireklam.com> and <actiondisplay.net> that provides a large scale of outdoor advertising products.
5. Parties' Contentions
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 the Complainant's trademark JCDECAUX.
Furthermore, the Complainant argues that the Respondent has no rights or legitimate interests in the disputed domain name.
It is further convinced that the Respondent must have registered and used the disputed domain name in bad faith.
The Respondent did not formally reply to the Complainant's contentions.
However, the Center received an email communication from the Respondent in Turkish language.
In his email communication, the Respondent requests Turkish to be the language of the proceedings.
Furthermore, he acknowledges that JCDECAUX is a trademark of the Complainant. However, he alleges that it was important to create the disputed domain name in order to prevent any kind of monopolization of the country name Turkey by the Complainant.
Finally, the Respondent asserts that he intends to use the disputed domain name only for the purpose to present information on Turkey.
6. Discussion and Findings
To begin with, the Panel determines in accordance with the Complainant's request and the Rules, paragraph 11(a), that the language of these administrative proceedings shall be the English language. Although the language of the Registration Agreement is the Turkish language, the Panel finds that it would be inappropriate, given the circumstances of this case, to conduct the proceedings in Turkish and request a costly Turkish translation of the Complaint. In its decision on the language of the proceedings, the Panel particularly considers the fact that the Respondent is apparently working for a Turkish competitor of the Complainant. This strongly indicates that this is a typical cybersquatting case, which the UDRP was designed to time and cost efficiently stop. Moreover, the disputed domain name includes the country name "Turkey", which is an English term indicating that the Respondent is able to read and understand English. In any case, the Respondent was given the opportunity to respond in Turkish, which he did. In light of the above, the Panel comes to the conclusion that the Respondent will not be prejudiced by a decision being rendered in English language.
According to paragraphs 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 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 consistently with the WIPO Overview 2.0.
A. Identical or Confusingly Similar
The Panel finds that the disputed domain name is confusingly similar to the Complainant's JCDECAUX trademark.
First, the Panel confirms that the Complainant has satisfied the threshold requirement of having trademark rights regarding JCDECAUX. As evidenced in the Complaint, the Complainant has been the owner of several trademarks comprising the mark JCDECAUX since at least 2001.
Although not identical, the disputed domain name fully incorporates the Complainant's JCDECAUX trademark.
The disputed domain name differs from the JCDECAUX trademark only by the addition of the country name "Turkey". In the Panel's view, the addition of a country name does not negate the confusing similarity between the Complainant's trademark and the disputed domain name. The Panel finds that this additional incorporation is purely descriptive and does not create a new distinctiveness separate from the Complainant's JCDECAUX trademark. On the contrary, the full inclusion of the Complainant's trademark in combination with the country name "Turkey" enhances the false impression that the disputed domain name is somehow officially related to the Complainant and its products and services offered in Turkey.
The Panel concludes that the disputed domain name is likely to confuse Internet users into believing that the disputed domain name is affiliated or endorsed by the Complainant or that the use of the disputed domain name is at least authorized by the Complainant.
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 the Respondent has not demonstrated 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, 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 decisions that the Complainant may make out a prima facie case whereby 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 in 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 any rights or legitimate interests in the disputed domain name in accordance with the Policy, paragraphs 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 in using the Complainant's JCDECAUX trademark in the disputed domain name.
The Respondent, however, failed to provide any evidence that he is commonly known by the disputed domain name. The Respondent has also 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 to the satisfaction of the Panel. By using the Complainant's company name and trademark in its entirety, it is apparent that the disputed domain name has never been or is not intended to be used in connection with a bona fide offering of goods or services.
In fact, considering the circumstances of the case, the Panel cannot conceive of any use by the Respondent that would qualify as a legitimate and lawful use.
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 shares the Complainant's view that the Respondent is deliberately attempting to create a likelihood of confusion among Internet users for improper purposes under the Policy. The Respondent is apparently working for or at least somehow connected to a competitor of the Complainant in Turkey, which offers a similar range of outdoor advertising products and services as the Complainant. There is no need to discuss in detail that registering a domain name comprising a competitor's company name and trademark constitutes bad faith under the Policy. The Respondent's allegation that he created the disputed domain name only in order to prevent the monopolization of the country name Turkey by the Complainant provides no defense to the Complainant's case.
In light of the above, the Panel is convinced that the above demonstrates a typical cybersquatting case, which the UDRP was designed to stop.
The Panel therefore concludes 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.
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, <jcdecauxturkey.com> be transferred to the Complainant.
Date: August 10, 2015