WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Siemens AG v. Kenan Sen
Case No. D2016-1690
1. The Parties
The Complainant is Siemens AG of Munich, Germany, represented by Müller Fottner Steinecke, Germany.
The Respondent is Kenan Sen of Istanbul, Turkey.
2. The Domain Name and Registrar
The disputed domain name <siemensbeylikduzuservisi.com> is registered with FBS Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on August 19, 2016. On August 19, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 22, 2016, 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.
Pursuant to the Complaint submitted in English and the Registrar’s confirmation that Turkish is the language of the registration agreement, on August 25, 2016, the Center requested that the Parties submit their comments on the language of the proceeding. On August 25, 2016, the Complainant submitted its request for English to be the language of the proceeding. The Respondent did not submit any comment on 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 and 4, the Center formally notified the Respondent of the Complaint in English and Turkish, and the proceeding commenced on September 7, 2016. In accordance with the Rules, paragraph 5, the due date for Response was September 27, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 28, 2016.
The Center appointed Kaya Köklü as the sole panelist in this matter on October 3, 2016. 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 leading electrical engineering and electronics company, which is active in 190 countries around the world. Among various sectors, it is particularly known by consumers for its products in the household sector.
The Complaint is based on a European Union and an International word and figurative trademark registration for SIEMENS. The European Union trade mark (no. 004240263) was registered on March 28, 2006, and covers protection for the classes 1, 3, 4, 6, 7, 8, 9, 10, 11, 12, 14, 16, 17, 20, 21, 28, 35, 36, 37, 38, 39, 40, 41 and 42. The International trademark (no. 637074) was registered on March 31, 1995, and claims wide protection for more than 60 jurisdictions, including Turkey.
According to the current record, the disputed domain name <siemensbeylikduzuservisi.com> was registered on June 9, 2010 by the Respondent.
The Respondent seems to be an individual from Istanbul, Turkey.
At the time of the decision, the disputed domain name resolves to a website, which provides repair services for products of the Complainant. Provided screenshots of the website at the disputed domain name in Annex 7 of the Complaint show that the Respondent prominently uses the Complainant’s SIEMENS word mark in various forms to promote its offered technical services, which appear to be not limited to products of the Complainant.
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 well-known SIEMENS trademark.
The Complainant argues that the only difference between the disputed domain name and the Complainant’s trademark is that the disputed domain name additionally makes reference to a district name of Istanbul, namely “Beylikdüzü” as well as the Turkish term “servisi” (meaning “service” in English). The Complainant is of the opinion that the addition of these descriptive terms does not negate the confusing similarity with its SIEMENS trademark.
Furthermore, the Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name. In particular, the Complainant states that the Complainant has never granted a permission or license to the Respondent to use its SIEMENS trademark. The Complainant further alleges that the Respondent has never used and does not intend to use its trademarks 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. The Complainant is particularly of the opinion that the Respondent apparently tries to attract Internet users for illegitimate purposes and to cause damage to the Complainant.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
6.1. Language of the Proceeding
The Panel determines in accordance with the Complainant’s request and the Rules, paragraph 11(a), that the language of this administrative proceeding 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 and time consuming Turkish translation of the Complaint, while the Respondent failed to raise any objection to the Center’s communication with regard to the language of the proceeding or to the Complaint, despite notice of the Complaint having been communicated in both English and Turkish. The Panel believes that the Respondent will not be prejudiced by a decision being rendered in the English language.
6. 2. Substantive Issues
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 the 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.
A. Identical or Confusingly Similar
The Panel finds that the disputed domain name is confusingly similar to the SIEMENS trademark of the Complainant.
First, the Panel confirms that the Complainant has satisfied the threshold requirement of having trademark rights in SIEMENS. As evidenced in the Complaint, the Complainant is the owner of word and figurative trademarks with regard to the SIEMENS mark in many jurisdictions worldwide, including Turkey.
Although not identical, the disputed domain name fully incorporates the Complainant’s SIEMENS trademark.
The disputed domain name differs from the Complainant’s trademarks only by the addition of the generic Turkish term “servisi”, which means “service” in English, and a reference to the name of a district in Istanbul, namely “Beylikdüzü”. In the Panel’s view, the addition of such generic and geographic terms does not negate the confusing similarity between the Complainant’s trademark SIEMENS 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 SIEMENS trademark. Quite the opposite, the full inclusion of the Complainant’s trademark in combination with the generic term “servisi” and the district name “Beylikdüzü”, which directly relates to technical assistance provided by the Complainant for its products in Istanbul/Turkey, may even enhance the false impression that the disputed domain name is officially related to the Complainant. 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 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 in absence of a Response, 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).
With its Complaint, the Complainant has provided uncontested prima facie evidence that the Respondent has no rights or legitimate interests to use the Complainant’s SIEMENS trademark in the disputed domain name.
According to paragraph 2.3 of the WIPO Overview 2.0, it is the consensus view among UDRP panelists that “a reseller or distributor can be making a bona fide offering of goods and services and thus have a legitimate interest in the domain name if its use meets certain requirements”. It is stated that “these requirements normally include the actual offering of goods and services at issue, the use of the site to sell only the trademarked goods, and the site’s accurately and prominently disclosing the registrant’s relationship with the trademark holder”.
In the Panel’s view, these requirements also apply mutatis mutandis to repair services offered for products of third parties if the trademarks of these products are part of a domain name.
As evidenced by the provided screenshots of the website linked to the disputed domain name in the available record, the Respondent particularly failed in accurately and prominently disclosing the lack of relationship with the Complainant. On the contrary, the Respondent even enhances the false impression of an authorized repair service by prominently using the Complainant’s SIEMENS word mark various times on its website linked to the disputed domain name. In the Panel’s view, this does not support the assessment of a legitimate use by the Respondent, particularly, as the Respondent, in absence of a Response, 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.
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 is of the opinion that the Respondent intentionally attempted to create a likelihood of confusion among customers and/or to tarnish the Complainant’s SIEMENS trademark, apparently for commercial gain.
The following is only a selection of various indications in the available record demonstrating that the Respondent was and still is acting in bad faith.
First, the Panel believes that the Respondent must have been well aware of the Complainant’s trademarks when it registered the disputed domain name on June 9, 2010. At the date of registration of the disputed domain name, the Complainant’s SIEMENS trademark was already well-known worldwide, including in Turkey, for many years.
Second, it is the Panel’s view that the Respondent deliberately tried to conceal the lack of relationship with the Complainant, in order to mislead Internet users searching for an authorized repair service for the Complainant’s products for the Respondent’s commercial gain.
Third, the Respondent failed to respond to the Complainant’s contentions, although being informed of the pending administrative proceeding by email and courier in both English and Turkish.
All in all, the Panel 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 <siemensbeylikduzuservisi.com> be transferred to the Complainant.
Date: October 17, 2016