WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Siemens AG v. Ahmet Sukru Kose
Case No. D2016-1704
1. The Parties
The Complainant is Siemens AG of Munich, Germany, represented by Müller Fottner Steinecke, Germany.
The Respondent is Ahmet Sukru Kose of Afyonkarahisar, Turkey, self-represented.
2. The Domain Name and Registrar
The disputed domain name <siemensafyon.com> is registered with IHS Telekom, Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on August 22, 2016. On August 23, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 24, 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 September 6, 2016, the Center requested that the Parties submit their comments on the language of the proceeding. On September 7, 2016, the Complainant submitted its request for English to be the language of the proceeding. On September 11, 2016, the Respondent submitted its request for Turkish 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 and 4, the Center formally notified the Respondent of the Complaint in English and in Turkish, and the proceeding commenced on September 12, 2016. In accordance with the Rules, paragraph 5, the due date for Response was October 2, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 3, 2016.
The Center appointed Uğur G. Yalçıner as the sole panelist in this matter on October 6, 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, whose headquarters are in Germany, is a large electrical engineering and electronics company, which trades worldwide under the name “Siemens”. The Complainant relies on the following trademarks:
- SIEMENS International trademark No. 637074 registered on March 31, 1995, in the name of Siemens AG, covering more than 60 countries worldwide, inter alia Turkey, and claiming protection for goods and services in international classes 1, 3, 5, 6, 7, 8, 9, 10, 11, 12, 14, 16, 17, 20, 21, 28, 35, 36, 37, 38, 40, 41 and 42.
- SIEMENS Community trade mark No. 4240263 registered on March 28, 2006, in the name of Siemens AG, claiming protection for goods and services in 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 Respondent is located in Afyonkarahisar, Turkey, which is one of the territories where the Complainant also operates.
The disputed domain name <siemensafyon.com> was registered on April 11, 2012. At the time of this decision and as supported in evidence submitted by the Complainant, the disputed domain name resolves to a website in Turkish where the Respondent offers the Complainant’s SIEMENS products for sale.
5. Parties’ Contentions
The Complainant contends as follows:
Identical or Confusingly Similar
The domain name <siemensafyon.com> identically contains the trademark SIEMENS, which is followed by the descriptive geographical indication “Afyon” referring to the province “Afyonkarahisar” located in western Turkey followed by the generic Top-Level Domain (“gTLD”) “.com”
The Complainant’s SIEMENS trademark has a high reputation, the Turkish public will automatically recognize the trademark SIEMENS and will associate the disputed domain name with the Complainant and Internet users will have the false impression that the website at the disputed domain name is the Complainant’s official website.
The trademark SIEMENS is used in respect of home appliances through license by B/S/H Hausgeräte GmbH and its Turkish affiliate BSH Ev Aletleri Sanayi ve Ticaret A.Ş in Turkey.
Rights or Legitimate Interests
The Respondent has no rights or legitimate interests in respect of the disputed domain name since the Respondent is not connected with the Complainant and has never been one of the Complainant’s representatives or employees. The Respondent has never been licensed or authorised by the Complainant to use the disputed domain name and the Respondent has not at any time been commonly known by the disputed domain name and does not own a mark for the word “siemens”.
The website at the disputed domain name has the identical house colour mark “petrol blue” as used by the Complainant therefore the Respondent is well aware of the well-known trademark SIEMENS.
The Respondent is not using the disputed domain name for a legitimate noncommercial or fair use and the disputed domain name was selected by the Respondent with the intent to attract Internet users for illegitimate purposes and to cause damage to the Complainant.
Registered and is being used in bad faith
The Respondent’s SIEMENS mark is a well-known trademark and the Respondent knew or should have known about the Complainant’s earlier rights on this trademark.
The Respondent intended to use the strong reputation throughout the world of the Complainant’s trademark SIEMENS in order to confuse the public and to cause damage to the Complainant in disrupting its business.
The Respondent did not submit any substantive response to the Complaint.
6. Discussion and Findings
6.1. Language of the Proceeding
Paragraph 11(a) of the Rules provides that: “Unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.”
Although the language of the Registration Agreement for the disputed domain name is Turkish, the Complainant argues that the language of the administrative proceeding should be English for the following reasons:
- The English language is the most usual language worldwide.
- The Respondent registered the disputed domain name and it may be assumed that the Respondent has a sufficient knowledge of the English language enabling him to understand all relevant information in this administrative proceeding and to communicate in this language.
- Translating the Complaint into Turkish would incur considerable expenses to the Complainant and this would also cause delays in the proceeding.
The Respondent objected to the Complainant’s request on his email dated September 11, 2016. The Respondent’s assertions may be summarized as follows:
- The Respondent resides in Afyonkarahisar, Turkey.
- The Registrar of the disputed domain name resides in Istanbul, Turkey.
- The Registration Agreement of the disputed domain name is in Turkish.
- There is no agreement between the Parties regarding the language of the proceeding.
- The Response to the Complaint would be submitted in Turkish language.
- The Respondant does not have a command of English to file a Response to the Complaint and Turkish is the best language for the Respondent to submit his arguments.
- The Respondant agrees with the Complainant that the translation of the Complaint into Turkish is not necessary since this can incur extra expenses.
It is established practice to make a decision regarding the language of the proceeding to ensure fairness to the parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes. Language requirements should not lead to undue burdens being placed on the parties and undue delay to the proceeding. See, Solvay S.A. v. Hyun-Jun Shin, WIPO Case No. D2006-0593. In this case, the Complainant, which is not proficient in Turkish, will have to incur considerable expense if it is forced to translate the Complaint into Turkish. Additionally, since the Respondent did not submit any Response, translating the Complaint into Turkish will lead to undue and unnecessary burden and delay resolution of the dispute. Under these circumstances, noting that the Respondent was notified of the present proceeding in both English and Turkish, and noting that the Respondent acquiesced to the Complaint being filed in English, and the Respondent’s subsequent failure to file any substantive response to the Complaint, the Panel determines English to be the language of this proceeding.
6. 2. Substantive Issues
Pursuant to paragraph 14 of the Rules, in case of failure of a Party to comply with any of the time periods established by the Rules, the Panel shall proceed to a decision based on the Complaint. Since the Respondent failed to submit a Response the Panel may decide the dispute based on the Complaint and may accept all reasonable factual allegations as true.
A. Identical or Confusingly Similar
The Policy simply requires the Complainant to demonstrate that the disputed domain name is identical or confusingly similar to the trademark SIEMENS in which the Complainant has rights. The Panel is satisfied that the Complainant is the owner of the trademark SIEMENS as evidenced in the annexes to the Complaint. In this Panel’s view, the addition of the geographical term “Afyon” and the gTLD “.com” does not negate the confusing similarity between the disputed domain name and the Complainant’s trademark. Therefore, the Panel recognizes the Complainant’s trademark rights and concludes that the disputed domain name is confusingly similar to the Complainant’s trademark.
The Panel concurs with the opinion of several prior UDRP panels which have held that, when a domain name wholly incorporates a complainant’s registered mark that may be sufficient to establish confusing similarity for purposes of the Policy. See, e.g., Kabushiki Kaisha Hitachi Seisakusho (d/b/a Hitachi Ltd) v. Arthur Wrangle, WIPO Case No. D2005-1105; Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903; Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr., WIPO Case No. D2000-1525.
Accordingly, the Panel finds that the requirements of paragraph 4(a)(i) of the Policy are fulfilled by the Complainant.
B. Rights or Legitimate Interests
The Complainant must show that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
The Complainant states, inter alia, that the Respondent has neither a license nor any other permission to use the Complainant’s trademark or the disputed domain name and that there is no relationship whatsoever between the Complainant and the Respondent. The Panel finds that the Complainant has made a prima facie case that the Respondent lacks right or legitimate interests, and the Respondent has failed to demonstrate such rights or legitimate interests. The Panel finds, given the use made of the disputed domain name that, when the Respondent registered the disputed domain name it knew that SIEMENS was the trademark of the Complainant, and that he registered the disputed domain name because it would be recognized as such.
The Panel notes that the disputed domain name is being used in connection with an unauthorized website apparently offering for sale the Complainant’s goods, and in this regard the discussion at paragraph 2.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”) is relevant. Applying the consensus view, normally, 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. 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. The respondent must also not try to “corner the market” in domain names that reflect the trademark.
As it is also noted in the recent UDRP Panel’s decision SIEMENS AG v. Mr. Evren Akagunduz, WIPO Case No. D2016-1725: “The Respondent is an unauthorized reseller, yet the prominent use of the Complainant’s SIEMENS trade mark in the Complainant’s house colour would, in the view of the Panel, indicate to most visitors a degree of official authorization. It appears to the Panel to be an official website of or authorized by the Complainant.”
Additionally, since there is no disclaimer included on the website of the disputed domain name, the Panel concludes that Internet users are likely to be misled into supposing that the website at the disputed domain name indicates a site belonging to, or authorized by, the Complainant. Continued use of the disputed domain name in this manner could lead consumers to mistakenly believe that the products featured are offered, sponsored, and endorsed by the Complainant.
In the absence of a Response, the Respondent has not provided any evidence of the type specified in paragraph 4(c) of the Policy, or any other circumstances giving rise to a right or legitimate interest in the disputed domain name. In the Panel’s view, the Respondent has not demonstrated any bona fide offering of goods or services by its use of the disputed domain name within the meaning of the Policy.
Accordingly, the Panel finds that the Complainant has satisfied paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
The Complainant’s SIEMENS trademark was registered and used before the Respondent’s registration of the disputed domain name. The Panel believes that the Respondent was well aware of the Complainant’s trademarks, when it registered the disputed domain name. As a matter of fact, due to its longstanding and widespread use, the trademark SIEMENS enjoys substantial reputation (see among others, Siemens AG v. Joseph Wunsch/Contactprivacy.com, WIPO Case No. D2006-1248).
In accordance with previous decisions issued under the Policy, the Panel is of the opinion that actual knowledge of the Complainant’s trademark at the time of registration of the disputed domain name is to be considered as an inference of bad faith, Parfums Christian Dior v. Javier Garcia Quintas and Christiandior.net, WIPO Case No. D2000-0226.
Further, the fact that the Respondent sells the Complainant’s products on the website at the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website.
After examining all circumstances, the Panel finds that the Respondent registered and is using the disputed domain name in bad faith.
Accordingly, the Panel finds in favor of the Complainant on 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 <siemensafyon.com> be transferred to the Complainant.
Uğur G. Yalçıner
Date: October 14, 2016