WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Tadım Gıda Maddeleri Sanayi ve A.Ş. v. Reserved for Customers, MustNeed.com
Case No. D2017-0936
1. The Parties
Complainant is Tadım Gıda Maddeleri Sanayi ve A.Ş. of Kocaeli, Turkey, represented by Koyuncuoğlu & Köksal Avukatlık Bürosu, Turkey.
Respondent is Reserved for Customers, MustNeed.com of Taipei, Taiwan, Province of China, represented by GuangLai Law Firm, China.
2. The Domain Name and Registrar
The disputed domain name <tadim.com> (the “Domain Name”) is registered with Moniker Online Services, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 9, 2017. On May 9, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On May 10, 2017, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name, which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on May 15, 2017 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on May 18, 2017.
The Center verified that the Complaint together with the 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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on May 24, 2017. In accordance with the Rules, paragraph 5, the due date for Response was June 13, 2017. The Response was filed with the Center on June 13, 2017. Since the attachments to the filing of the Response could not be opened, the Center requested resubmission and the Response was resubmitted on June 14, 2017.
Complainant submitted a supplemental filing to the Center on June 29, 2017, stating that the “Reply was necessitated by the need to provide further information and documentation in reply to the claims of the Respondent in his Response to the Complaint.”
Paragraphs 10 and 12 of the Rules in effect grant the Panel sole discretion to determine the admissibility of supplemental filings. The Panel has reviewed Complainant’s supplemental submission and notes that much of it consists of arguments that reinforce those already made in the Complaint. The Panel rules that Complainant’s supplemental filing will be admitted only insofar as it provides new information. See Nancy L. Lanard, Lanard and Associates, P.C. v. WhoIs Agent, WhoIs Privacy Protection Service, Inc. / Josh Lignana, Spadea Lignana LLC, WIPO Case No. D2016-1706. In particular, the Panel will consider information that Complainant sells sunflower seeds and pumpkin seeds (in addition to various dried fruits and nuts), two items that are featured in the pay-per-click (“PPC”) links on the website to which the Domain Name resolves. Further, the Panel observes Complainant has confirmed that “tadim” is not the name of a place in Turkey, as asserted by Respondent.
The Center appointed Christopher S. Gibson as the sole panelist in this matter on June 19, 2017. 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
Complainant is a Turkish company established in 1971 operating in the dried fruit and nuts market, with operations and a distribution network throughout Turkey. Complainant also carries out business in Europe, the United States, and other regions through its dealers and a production facility located in Germany.
Complainant has submitted records showing its numerous trademark registrations, with the earliest registration for its TADIM mark dating from 1991 but with use dating back to 1974. The main component of many of Complainant’s trademarks is the term “tadim,” which is identical to Complainant’s company name. Complainant has more than 80 trademark registrations before the Turkish Patent and Trademark Office (“TPTO”) and WIPO (designating numerous countries). These trademarks are registered primarily in Nice classes 29, 30 and 31, corresponding to Complainant’s scope of activities focused especially on dried fruits and nuts. Since 2007, Complainant’s trademark has been registered as a well-known mark with the TPTO. Complainant’s mark was selected both in 2012 and 2014 as one of the super brands of Turkey by Superbrands International, an independent appraiser of brands. Complainant trademarks and products have been well-known in Turkey for a long time, but have also gained recognition abroad. In 2016, Complainant became the official global partner of Euroleague Basketball, which it will sponsor for the next three years.
Complainant owns the domain name <tadim.com.tr>, which it registered on May 13, 1997.
The Domain Name was registered on February 27, 2002.
5. Parties’ Contentions
(i) Identical or confusingly similar: Complainant states that it has rights in its TADIM trademark, which long predate Respondent’s registration of the Domain Name and that it has developed extensive goodwill and reputation in its TADIM mark.
Complainant contends that the main element of the Domain Name is the term “tadim,” which is identical to Complainant’s company name and its TADIM trademark. Complainant claims that registering a domain name that is identical to its mark results in consumer confusion, especially since the Domain Name and Complainant’s domain name (<tadim.com.tr>) both have the same Second-Level Domains (“SLD”), differentiated only by the “.com” generic Top-Level Domain (“gTLD”) in the Domain Name and the “.tr” country code Top-Level Domain (“ccTLD”) in Complainant’s domain name. Complainant states the “.com” gTLD does not have any significance when evaluating similarity between a trademark and a domain name, while the “.tr” ccTLD only serves to indicate the country code of the registration and does not bear any distinctive function.
Complainant contends that in the light of the above, the Domain Name is identical or confusingly similar to the TADIM trademark in which it has rights.
(ii) Rights or legitimate interests: Complainant states that Respondent registered the Domain Name consisting of Complainant’s identical TADIM trademark without any legitimate basis, and that Respondent has no rights or legitimate interests whatsoever with respect to the Domain Name. Complainant has been using its TADIM mark as its company name and on its products continuously since 1974, and first registered the TADIM mark in 1991. Complainant never granted Respondent the right to use the TADIM mark in connection with an offering of goods and services or for any other reason, including to register a domain name that incorporated the mark. Respondent has never been known by the Domain Name and has not used it for any bona fide offering of goods or services. Complainant contends that the Domain Name has been maintained to benefit Respondent by misleading Internet users, thereby enhancing the value of the Domain Name so that it could be sold for a higher price, thus exploiting legitimate companies operating in good faith.
Complainant states that, as can be seen on the screenshot of the website linked to the Domain Name, it is not actively used, but instead is linked to a PPC website, which also features a link offering the Domain Name for sale. Complainant states that its representative was in contact with a representative of Respondent, as shown by email correspondence submitted in the record. Complainant argues that Respondent’s representative showed an intent to sell the Domain Name to Complainant, thereby indicating Respondent’s real objective, which is to obtain an unjustified commercial gain by selling the Domain Name to the company with trademark rights to the term “tadim”. Complainant contends that Respondent is not making a legitimate noncommercial or fair use of the Domain Name without intent to misleadingly divert consumers for commercial gain.
In the light of the above, Complainant states that Respondent has no right or legitimate interest in respect of the Domain Name.
(iii) Registered and used in bad faith: Complainant states that it has used its TADIM trademark for years both as its company name and trademark. The products bearing its mark are sold both in the Turkish market and abroad, and it has become a well-known mark in its sector. Complainant contends that Respondent does not appear to have any good faith reason for registering the Domain Name that is identical to Complainant’s mark. Complainant refers to the Internet Archive (“www.archive.org”) records to show that there has been very little activity linked to the Domain Name, and no substantial content posted on any website. Currently, the Domain Name resolves to a parking site with advertising listings and links, which serves Respondent to profit by misleading customers looking for Complainant’s webpage. The website linked to the Domain Name also includes a link indicating that the Domain Name is offered for sale. Respondent proposed to sell the Domain Name to Complainant, as shown in the email correspondence. According to Complainant, these facts indicate that the main purpose for Respondent’s acquisition of the Domain Name was to sell, rent or otherwise transfer it to the owner of the TADIM trademark or to a competitor of Complainant, which establishes Respondent’s bad faith in the possession and use of the Domain Name.
Complainant states that, as shown in the email correspondence, it contacted Respondent with the aim of buying the Domain Name, but Respondent’s representative eventually did not follow-up and the transaction could not be finalized. Complainant claims that it can be inferred from these circumstances that Respondent impeded the relationship with Complainant and in this way prevented Complainant from acquiring its legitimate ownership right in the Domain Name.
Complainant states that the record does not show any legitimate noncommercial or fair use of the Domain Name by Respondent. The use of PPC parking webpages, especially with advertisements offering competing services, indicates Respondent’s knowledge of bad faith in using the Domain Name. Further, Respondent’s lack of activity in using the Domain Name (other than for a PPC site) indicates that it is a passive holder of the Domain Name, which does not prevent UDRP panels from finding bad faith registration and use.
Complainant states that the word “tadim” has no meaning in Chinese language, which is the official language of Respondent’s country, or in any language other than Turkish. Complainant thus argues it is highly unlikely that Respondent was unaware of the existence of Complainant and its well-known reputation and trademarks in the field of dried fruits and nuts. Therefore, registration of the Domain Name cannot be considered accidental. Complainant urges that the registration of a domain name in this manner may be considered an indication of bad faith, citing Société Nouvelle Del Arte v. Domain Administrator, Domain Asset Holdings, LLC, WIPO Case No. D2016-1859 (the panel observed that the disputed domain name reproduced the complainant’s trademark and stated that the mere filing of a domain name corresponding to well-known trademark is an indication of bad faith, especially when the domain name is not used). Complainant states that it cannot conceive of any good faith use of the Domain Name by Respondent and believes that the circumstances demonstrate this is a typical cybersquatting case, which the UDRP was designed to address.
In sum, Complainant contends the Domain Name was registered and is used in bad faith by Respondent, as the circumstances indicate the Domain Name was registered or acquired primarily for the purpose of selling, renting or otherwise transferring it to the owner of the trademark (i.e., to Complainant or a competitor of Complainant).
(i) Identical or confusingly similar: Respondent states that among all of Complainant’s trademarks, Respondent admits that the Domain Name is identical or confusingly similar only to one of them, the Turkish mark for the exact term, TADIM, which was registered by Complainant in 1991. Respondent states the other trademarks are either combined marks (i.e., marks that include other terms) or were registered after the Domain Name had been registered.
(ii) Rights or legitimate interests: Respondent states that it has rights or legitimate interests in respect of the Domain Name. Respondent states it is located in Taiwan focusing on Internet-related business, including web design, web hosting and Internet advertising. The Domain Name was registered as one of the domain names in Respondent’s portfolio. Respondent owns many generic, descriptive and geographical domain names in its portfolio.
Respondent states the Domain Name was registered for the purpose of its “search engine advertising project”. Respondent indicates that in the past decade it has invested a lot of money in the development of its web projects. The Domain Name is now in use for the same purpose. Respondent submits that deriving revenue from its website when users click on the links supports finding of a legitimate right or interest in the Domain Name, not bad faith. Respondent emphasizes that previous UDRP panels have found there is nothing in the Policy or current registrar registration agreements that prohibits this type of use of a domain name by the domain name holder. Further, gaining income from the Domain Name is not, in itself, bad faith, no more than would be the circumstance that not all of Respondent’s domain names resolve to useful or informative websites. Thus, it is not the ownership of multiple domain names that constitutes bad faith, rather it is the intent to harm the trademark owner that defines cybersquatting, which is not present here.
Therefore, Respondent contends that it has rights and legitimate interests in the Domain Name.
(iii) Registered and used in bad faith: Respondent states that in addition to the generic, descriptive and geographical domain names, it has also focused on three and four letter domain names, consonant-vowel-consonant-vowel (“CVCV”) domain names, small place or city domain names that are valuable in the market, and domain names that have meanings in different languages other than English. Respondent provided, by way of example, a listing of some of the domain names in its portfolio.
Respondent claims that it had never heard of Complainant until Complainant first contacted Respondent, nor did Respondent know Complainant’s field of business until this case arose. Respondent states it is located in Taiwan and has never been to Turkey. At the time of the Domain Name’s registration, Complainant seemed to be a local business in Turkey and that business did not extend to Taiwan, where Respondent resided. Respondent did not know that there was an entity called “Tadim”. Moreover, Respondent would normally perform a trademark search with the United States Patent and Trademark Office (“USPTO”) before registering a domain name. At the time when the Domain Name was registered in 2002, the USPTO was one of the few sources in the world providing online trademark searches. However, Respondent did not find any trademark registered with USPTO for the term “tadim”, and this led Respondent to believe that the Domain Name would not raise trademark issues. Further, Respondent contends that Complainant may be a large company now, but not at the time when the Domain Name was registered. Complainant’s trademark application records reflect that Complainant started to extend its business worldwide in or about 2015, years after the Domain Name was registered. Complainant’s merchandise was not sold in Taiwan where Respondent resides, and probably is not sold in Taiwan now.
Respondent states that the “reason for Respondent to register the disputed domain name, which was the most important part of all, was because the term “tadim” is not only a place name in Turkey but also means “taste” which is a Turkish generic term in which no one should have exclusive rights”. Thus, Respondent claims its reason for selecting the Domain Name had nothing to do with any trademark infringement purpose. All domain names registered by Respondent are for its web projects, without intention to sell them to a trademark owner. However, Respondent might sell domain names to its clients, for example, to Microsoft or Citi Group, and this is allowed under the Policy.
Respondent states that it has never attempted to prevent Complainant from obtaining the Domain Name. Respondent emphasizes that it was Complainant who approached Respondent requesting that Respondent sell the Domain Name. According to Respondent, the parties had reached an agreement for selling the Domain Name to Complainant in February 2017; however, Complainant subsequently broke this agreement without notice and then used the email correspondence as evidence in an attempt to prove Respondent’s bad faith.
For the foregoing reasons, Respondent requests the Panel to dismiss the Complaint.
6. Discussion and Findings
The Policy is addressed to resolving disputes concerning allegations of abusive domain name registration and use. Paragraph 15(a) of the Rules provides that the Panel will decide a complaint on the basis of statements and documents submitted and in accordance with the Policy, the Rules and any other rules or principles of law that the Panel deems applicable.
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain a decision (as it has requested) that the Domain Name be transferred to it:
(i) The Domain Name registered is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests with respect to the Domain Name; and
(iii) The Domain Name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Panel determines that Complainant has established rights in its TADIM trademark, based on the evidence of Complainant’s numerous trademark registrations, as well as the use and promotion of its TADIM mark in Turkey and in certain other countries. The Panel observes that a number of the trademark registrations, which include the mark TADIM either alone or in combination with other words, predate the registration of the Domain Name.
The Panel also finds that the Domain Name is identical to Complainant’s TADIM trademark. Respondent has acknowledged this point, at least with respect to one of Complainant’s registered trademarks. Further, the gTLD (“.com”) in which the Domain Name is registered is irrelevant to the analysis. In this regard, paragraph 1.11.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Jurisprudential Overview 3.0”), states that “[t]he applicable Top Level Domain (‘TLD’) in a domain name (e.g., ‘.com’, ‘.club’, ‘.nyc’) is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test”.
Accordingly, Complainant has satisfied the first element of the Policy.
B. Rights or Legitimate Interests
As to the second element of the Policy, WIPO Jurisprudential Overview 3.0, paragraph 2.1, states that “where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element”.
Here, the Panel finds that Complainant has made out a prima facie case that Respondent has no rights or legitimate interests with respect to the Domain Name. Complainant indicated that it never granted Respondent the right to use the TADIM trademark in connection with an offering of goods and services or for any other reason; that Respondent has not been known by the Domain Name; that Respondent has not made a legitimate noncommercial or fair use of the Domain Name; and that the Domain Name has largely been held inactive with no substantive content, except for linking it to a PPC website, which features links to items that are in competition with Complainant’s dried fruits and nuts business, thereby potentially benefitting Respondent for financial gain by misleading Internet users looking for Complainant’s site. Complainant also alleged that Respondent’s real objective was to obtain an unjustified commercial gain by selling the Domain Name to Complainant for an amount in excess of the out-of-pocket costs.
In response to these submissions, Respondent has indicated that it is an Internet-related business focusing on web design, web hosting and Internet advertising, and that the Domain Name was registered as part of its “search engine advertising project”. Further, Respondent claims that deriving revenue from its PPC parking website supports a finding that it has a right or legitimate interest in the Domain Name. Respondent states that the reason it registered the Domain Name was because the term “tadim” refers to a place in Turkey and/or means “taste” in the Turkish language and thus is a generic term.
The Panel’s review of the record shows that Respondent has registered many domain names, including the Domain Name in dispute here. However, Respondent has provided no additional evidence of its Internet‑based business and none in support or indeed explanation of its so-called “search engine advertising project”. The Internet Archive website shows that the Domain Name has primarily been passively held or linked to a PPC website with links to products (e.g., sunflower seeds and pumpkin seeds) that are in competition with the products offered by Complainant’s business. As to Respondent’s assertion concerning the meaning of “tadim”, Complainant has confirmed that there is no place in Turkey called “Tadim”. The Panel also observes, as a matter of public record, that the common words for “taste” in the Turkish language are “tat” or “lezzet”, not “tadim”. It appears that the usage of “tadim”, other than when referencing Complainant’s brand name, may arise in spoken language in circumstances where one might refer to “my taste” (i.e., Turkish uses a possessive suffix, changing the second “t” in the word “tat” to a “d” and adding the “im”). Thus, these details cast doubt on Respondent’s claim that it registered the term “tadim” for its descriptive meaning in the Turkish language. See WIPO Jurisprudential Overview 3.0, paragraph 4.8 (noting the general powers of a UDRP panel under paragraphs 10 and 12 of the Rules to undertake limited factual research into matters of public record, including reviewing dictionaries or encyclopedias, if it considers such information useful to assessing the case merits).
Even if the Panel were to accept Respondent’s reason for registering the Domain Name (i.e., that the term “tadim” has a descriptive meaning in the Turkish language), WIPO Jurisprudential Overview 3.0, paragraph 2.10.1, states that:
“Panels have recognized that merely registering a domain name comprised of a dictionary word or phrase does not by itself automatically confer rights or legitimate interests on the respondent; panels have held that mere arguments that a domain name corresponds to a dictionary term/phrase will not necessarily suffice. In order to find rights or legitimate interests in a domain name based on its dictionary meaning, the domain name should be genuinely used, or at least demonstrably intended for such use, in connection with the relied-upon dictionary meaning and not to trade off third-party trademark rights.”
Further, as to whether use of the Domain Name in connection with a PPC parking website gives rise to any right or legitimate interest, WIPO Jurisprudential Overview 3.0, paragraph 2.9, provides the following guidance in relevant part:
“Applying UDRP paragraph 4(c), panels have found that the use of a domain name to host a parked page comprising PPC links does not represent a bona fide offering where such links compete with or capitalize on the reputation and goodwill of the complainant’s mark or otherwise mislead Internet users.
Panels have recognized that the use of a domain name to host a page comprising PPC links would be permissible – and therefore consistent with respondent rights or legitimate interests under the UDRP – where the domain name consists of an actual dictionary word(s) or phrase and is used to host PPC links genuinely related to the dictionary meaning of the word(s) or phrase comprising the domain name, and not to trade off the complainant’s (or its competitor’s) trademark.”
With this guidance in mind, the Panel has reviewed Respondent’s webpage (and its PPC links) to which the Domain Name resolves. The PPC links are in English, not in Turkish where they might have aligned with a conceivable Turkish meaning for the word “tadim”. The links refer to items such as pumpkin seeds and sunflower seeds, which are in competition with Complainant’s business as it sells both of these items as part of its dried fruits and nuts business. Thus, these PPC links appear to compete with or capitalize on the reputation of Complainant’s mark.
In view of these circumstances, the Panel finds that Respondent has not refuted Complainant’s prima facie case with sufficient evidence to demonstrate any rights or legitimate interests in the Domain Name.
Accordingly, the Panel finds that Complainant has satisfied the second element of the Policy.
C. Registered and Used in Bad Faith
The third element of paragraph 4(a) of the Policy requires that Complainant demonstrate that Respondent registered and is using the Domain Names in bad faith. WIPO Jurisprudential Overview 3.0, paragraph 3.1, states that “bad faith under the UDRP is broadly understood to occur where a respondent takes unfair advantage of or otherwise abuses a complainant’s mark”.
As a starting point, as discussed above, the Panel finds that the current use of the Domain Name – for a webpage with PPC links in English advertising products (pumpkin seeds and sunflower seeds) that are in competition with Complainant’s product offerings – appears to capitalize on the reputation of Complainant’s mark. This use, rather than supporting any right or legitimate interest on the part of Respondent, amounts to bad faith use in accordance with paragraph 4(b)(iv) of the Policy (using a domain name to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with a complainant’s mark).
Moreover, this is not the first case in which Respondent has been found to have engaged in such bad faith conduct – indeed, prior UDRP cases show that Respondent has repeatedly taken unfair advantage of the trademarks of third parties by using identical or confusingly similar domain names to host websites with PPC links offering competing goods or services. See, among other UDRP decisions, Crown Brands Limited v. MR Ling Hsiao Wang, Reserved for Customers, MustNeed.com, WIPO Case No. D2015-0834 (respondent used the disputed domain name for a standardized parking page containing PPC advertisements and thus used it in bad faith by intentionally attempting to attract, for commercial gain, web users to its website by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its web site as mentioned in terms of Policy paragraph 4(b)(iv)); Holding Soprema (Société Anonyme) v. Registrant : Reserved for Customers MustNeed.com, WIPO Case No. D2010-1048 (ruling that the exploitation of the reputation of a trademark to obtain click-through commissions from the diversion of Internet users is a common example of use in bad faith as referred to in paragraph 4(b)(iv) of the Policy); Caja de Seguros Reunidos, Compañía de Seguros y Reaseguros, S.A. v. Reserved for Customers email@example.com, MustNeed.com, WIPO Case No. D2011-2228 (respondent authorized the domain name to revert to a parking page offering similar insurance services as those offered by the complainant, thereby exploiting potential confusion with the complainant’s marks).
Complainant has also alleged that the Domain Name was registered by Respondent in bad faith, while Respondent has stated that it is located in Taiwan, had never heard of Complainant, and denies registering the Domain Name in bad faith. WIPO Jurisprudential Overview 3.0, paragraph 3.2.1, provides guidance in this respect as it relates to bad faith use found under paragraph 4(b)(iv) of the Policy:
“Application of UDRP paragraph 4(b)(iv): in some cases, e.g., where it is unclear why a domain name was initially registered and the domain name is subsequently used to attract Internet users by creating a likelihood of confusion with a complainant’s mark, panels have found that UDRP paragraph 4(b)(iv), read in light of paragraph 4(a)(ii), can support an inference of bad faith registration for the respondent to rebut. Such inference would be supported by a clear absence of the respondent’s own rights or legitimate interests, the nature of the domain name itself (i.e., the manner in which the domain name incorporates the complainant’s mark), the content of any website to which the domain name points – including any changes and the timing thereof, the registrant’s prior conduct generally and in UDRP cases in particular, the reputation of the complainant’s mark, the use of (false) contact details or a privacy shield to hide the registrant’s identity, the failure to submit a response, the plausibility of any response, or other indicia that generally cast doubt on the registrant’s bona fides.”
Here, there is strong support for an inference of bad faith registration. The Panel has found that Respondent has no rights or legitimate interests in the Domain Name; that the Domain Name is identical to Complainant’s TADIM trademark; that Complainant’s use and registration of the TADIM trademark predates registration of the Domain Name; that the PPC links on the website associated with the Domain Name advertise several products in competition with Complainant’s own offerings, thereby capitalizing of the reputation of Complainant’s TADIM trademark; and that Respondent, when contacted by Complainant, was quick to offer the Domain Name for sale for USD 5,500, but then refused to provide details of its identity necessary to effectuate the transaction. The Panel has also observed that Respondent has repeatedly taken unfair advantage of third-party trademarks by using identical or confusingly similar domain names to host websites with PPC links offering competing goods or services. Further, as discussed above, the term “tadim” does not (as alleged by Respondent) refer to a place name in Turkey and is not a common term for the word “taste” in the Turkish language. If Respondent, whose native language is not Turkish, had performed some level of research in order to come up with the idea of registering the term “tadim,” this begs the question of whether Respondent, while conducting that research, came across Complainant and its mark, TADIM, which was well-established in Turkey by 2002.
All of these points together raise a strong inference that Respondent registered the term “tadim,” not for any putative Turkish language meaning, but because it corresponds to Complainant’s TADIM trademark. The Panel considers, on the balance of the probabilities, that Respondent has failed to rebut this inference of bad faith. WIPO Jurisprudential Overview 3.0, paragraph 3.2.2, provide relevant guidance for circumstances, as here, where it appears that the respondent is a “domainer” with a large portfolio of domain names:
“Noting the near instantaneous and global reach of the Internet and search engines, and particularly in circumstances where the complainant’s mark is widely known (including in its sector) or highly specific and a respondent cannot credibly claim to have been unaware of the mark (particularly in the case of domainers), panels have been prepared to infer that the respondent knew, or have found that the respondent should have known, that its registration would be identical or confusingly similar to a complainant’s mark. Further factors including the nature of the domain name, the chosen top-level domain, any use of the domain name, or any respondent pattern, may obviate a respondent’s claim not to have been aware of the complainant’s mark.
. . . . Particularly noting the Internet’s borderless nature, a sweeping respondent disclaimer of knowledge based as such on its (deemed) presence in a particular location different from the location(s) in which the complainant’s goods or services are accessible may be seen by panels as lacking in credibility or relevance. In this respect, it is noted that the business of cybersquatting often seeks to exploit the global reach of the Internet, and may in fact purposefully target a location other than that in which the respondent may be ‘present.’”
In sum, in view of the particular circumstances in this case, the Panel finds that Respondent registered and is using the Domain Name in bad faith.
Accordingly, the Panel finds that Complainant has satisfied the third element 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 Domain Name, <tadim.com>, be transferred to Complainant.
Christopher S. Gibson
Date: July 5, 2017