WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
J.J.A. SA v. Mahide Bulak, Selman Atac
Case No. D2016-1889
1. The Parties
The Complainant is J.J.A. SA of Le Blanc Mesnil Cédex, France, represented by Dennemeyer & Associates S.A., Germany.
The Respondent is Mahide Bulak, Selman Atac of Istanbul, Turkey.
2. The Domain Name and Registrar
The disputed domain name <hesperidess.com> is registered with Nics Telekomünikasyon Ticaret Ltd. Sti. (the "Registrar").
3. Procedural History
The Complaint in English was filed with the WIPO Arbitration and Mediation Center (the "Center") on September 16, 2016. On September 16, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 18, 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, and noting that the language of the Registration Agreement is Turkish.
Pursuant to the Complaint submitted in English and the Registrar's confirmation that Turkish is the language of the Registration Agreement, on September 22, 2016, the Center requested that the Parties submit their comments on the language of the proceeding. On September 26, 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 both in English and Turkish, and the proceedings commenced on September 29, 2016. In accordance with the Rules, paragraph 5, the due date for Response was October 19, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on October 20, 2016.
The Center appointed Uğur G. Yalçıner as the sole panelist in this matter on October 25, 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 an independent family business importing goods from China for distribution in Europe. The Complainant relies on the following trademarks:
- HESPERIDE European Union trade mark No. 010379196 registered on April 30, 2012 in the name of the Complainant for goods and services in classes 6, 11, 16, 17, 18, 19, 20, 21 and 35.
- HESPERIDE International trademark No. 01044063 registered on January 27, 2010 for goods in classes 6, 11, 18, 19 and 20 in the name of the Complainant designating in 11 jurisdictions including the European Union.
The disputed domain name was registered on April 11, 2016.
At the time of this Decision the disputed domain name did not resolve to an active webpage.
5. Parties' Contentions
The Complaint includes the following contentions:
(i) Identical or Confusingly Similar
The disputed domain name contains the trademark HESPERIDE with the addition of two "s" letters, which is not sufficient to avoid the confusing similarity between the disputed domain name and the Complainant's trademark. The Complainant provides evidence of its registered trademark rights in support of its contentions in this regard.
(ii) Rights or legitimate interests
The Complainant states that the Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services and since no active use has been made of the disputed domain name, the Complainant contends that the Respondent has not made a genuine use of it.
The Complainant states that the Respondent has never been known by the disputed domain name. Furthermore, the Complainant has not authorized or licensed the Respondent to use the Complainant's trademark.
(iii) Registration and Use in Bad Faith
The Complainant claims that the Respondent's bad faith is evidenced by the Respondent's typosquatting and states that this behavior can confuse Internet users. The Complainant also asserts that typosquatting of its trademarks will mislead consumers, which may cause gain loss and disinterest amongst users who want to reach the Complainant.
The Respondent did not reply to the Complainant's contentions.
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 states that the language of the administrative proceeding should be English.
The Respondent did not submit any comment on the language of the proceeding. The Panel, noting that the Respondent was notified of the present proceeding in both English and Turkish, and has nevertheless failed to respond to the Complaint or raise any objection regarding the language of the proceeding, 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 Panel finds that the disputed domain name <hesperidess.com> fully incorporates the Complainant's trademark HESPERIDE with the addition of the non-distinctive letters "ss", which gives plural meaning to the trademark, and does not serve to distinguish the disputed domain name from the Complainant's trademark. The Panel further notes that the addition of the generic Top-Level Domain ("gTLD") ".com" may be disregarded when determining whether the disputed domain name is confusingly similar to the Complainant's trademark, PRL USA Holdings, Inc. v. Spiral Matrix, WIPO Case No. D2006-0189. It has been stated in several UDRP decisions by other panels that the incorporation of a trademark in its entirety into a domain name may often be sufficient to establish that the domain name is identical or confusingly similar to a registered trademark, Bayerische Motoren Werke AG, Sauber Motorsport AG v. Petaluma Auto Works, WIPO Case No. D2005-0941.
Accordingly, the Panel concludes that the requirements of paragraph 4(a)(i) of the Policy are fulfilled by the Complainant.
B. Rights or Legitimate Interests
The Panel finds that the Respondent is not known by the disputed domain name, has not been authorized by the Complainant to use its HESPERIDE trademark or any similar trademark and has never made any active use of the disputed domain name.
Further, 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.
For the above cited reasons, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name, and the requirements of paragraph 4(a)(ii) of the Policy are therefore fulfilled by the Complainant.
C. Registered and Used in Bad Faith
The Panel finds that the Respondent's registration of the disputed domain name containing Complainant's trademark, along with the failure to make an active use of the disputed domain name is evidence of bad faith registration and use under Policy paragraph 4(a)(iii). See DCI S.A. v. Link Commercial Corporation, WIPO Case No. D2000-1232 (concluding that the respondent's [failure to make an active use] of the domain name satisfies the requirement of paragraph 4(a)(iii) of the Policy); see also Clerical Medical Investment Group Limited v. Clericalmedical.com (Clerical & Medical Services Agency), WIPO Case No. D2000-1228 (finding that merely holding an infringing domain name without active use can constitute use in bad faith).
In the absence of a response, the Panel further accepts the Complainant's argument that the Respondent's registration of the disputed domain name <hesperidess.com> that is almost identical to the Complainant's HESPERIDE trademark constitutes "typosquatting". Many UDRP panels have held that typosquatting in itself establishes bad faith registration and use. See Google, Inc. v. Namerental.com and Leonard Bensonoff, WIPO Case No. D2001-0060.
The Panel finds Policy paragraph 4(a)(iii) has been satisfied by the Complainant.
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 <hesperidess.com> be transferred to the Complainant.
Uğur G. Yalçıner
Date: November 1, 2016