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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

OLX B.V. v. Domain Admin Contact ID 5773388, FBS INC, Whoisprotection biz / Sinan Çap

Case No. D2018-1306

1. The Parties

The Complainant is OLX B.V. of Hoofddorp, Netherlands, represented by CSC Digital Brand Services AB, Sweden.

The Respondent is Domain Admin Contact ID 5773388, FBS INC, Whoisprotection biz of Istanbul, Turkey / Sinan Çap of Istanbul, Turkey.

2. The Domain Name and Registrar

The disputed domain name <olxforum.com> is registered with FBS Inc. (the “Registrar”).

3. Procedural History

The Complaint in English was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 12, 2018. On June 12, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 13, 2018, the Registrar transmitted by email to the Center its verification response confirming that the language of the registration agreement is Turkish and disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on June 13, 2018, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amended Complaint.

On June 13, 2018, the Center notified the Parties in both English and Turkish that the language of the registration agreement for the disputed domain name is Turkish. On June 18, 2018, the Complainant filed an amended Complaint and requested for English to be the language of the proceeding.

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 the Respondent of the Complaint, and the proceedings commenced on June 21, 2018. In accordance with the Rules, paragraph 5, the due date for Response was July 11, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 12, 2018.

The Center appointed Kaya Köklü as the sole panelist in this matter on July 19, 2018. 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 operates a free online classified platform that enables users to buy and sell different kinds of goods. The company was founded in 2006 and has its registered seat in the Netherlands.

Since 2006, the Complainant owns various word and figurative OLX trademark registrations around the world (cf. Annex 6 to the Complaint).

The Complainant also owns and operates a large number of domain names which incorporate the OLX trademark, such as <olx.com> (cf. Annex 8 to the Complaint).

The Complainant’s OLX trademark was already subject to various previous UDRP cases, such as OLX, Inc. - OLX S.A. v. PrivacyProtect.org / Saqib, N/A, Rana Saqib, WIPO Case No. D2013-0473 and OLX, Inc. v. J D Mason Singh, WIPO Case No. D2014-1037, all of them decided in favor of the Complainant.

The Respondent is composed of a domain name privacy registration service and an individual from Istanbul, Turkey (both of them jointly accepted and referred to as “the Respondent” in the following decision).

The disputed domain name was registered on February 14, 2018 and currently does not resolve to an active website.

The screenshots, as provided by the Complainant in the case file, show that the disputed domain name <olxforum.com> resolved to a website in the Turkish language, which was used for promoting various kinds of competing online platforms and web design services. At the top left side of the website linked to the disputed domain name, the Respondent prominently used the OLX trademark together with figurative elements similar to the ones as used by the Complainant (cf. Annex 3 to the Complaint).

5. Parties’ Contentions

A. Complainant

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 its OLX trademark.

Furthermore, the Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name. It is rather argued that the disputed domain name falsely suggests that there is some official or authorized link with the Complainant and the Respondent.

Finally, it is argued that the Respondent has registered and is using the disputed domain name in bad faith. The Complainant particularly argues that the Respondent must have been well aware of the Complainant’s OLX trademark, when registering the disputed domain name, particularly as the Respondent prominently uses the Complainant’s OLX trademark on the website linked to the disputed domain name without any disclosure of the lack of relationship between the Complainant and the Respondent.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

6.1. Language of the Proceeding

Although the language of the registration agreement of the disputed domain name is the Turkish language, the Panel finds that it would be unnecessary, given the circumstances of this case, to conduct the proceedings in Turkish and request costly and time consuming translations of documents by the Complainant, while the Respondent has failed to raise any objection or even to formally respond to the Complaint or respond to the Center’s communication about the language of the proceedings, even though communicated in Turkish and in English.

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.

Hence, 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.

6.2. Substantive Issues

According to paragraph 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.

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’s contentions. 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. See, section 2.1 of the

WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).

It is further noted that the Panel has taken note of the WIPO Overview 3.0 and, where appropriate, will decide consistent with the WIPO Overview 3.0.

A. Identical or Confusingly Similar

The Panel finds that the disputed domain name is confusingly similar to the OLX trademark of the Complainant.

First, the Panel confirms that the Complainant has satisfied the threshold requirement of having trademark rights in OLX. As evidenced in the Complaint, the Complainant is the owner of various OLX trademarks in different jurisdictions, registered well before the registration of the disputed domain name.

Although not identical, the disputed domain name fully incorporates the Complainant’s trademark OLX.

The disputed domain name differs from the Complainant’s trademarks only by the addition of the term “forum”. The Panel shares the Complainant’s view that the addition of this rather generic term does not negate the confusing similarity between the Complainant’s OLX trademarks and the disputed domain name.

Consequently, it is the Panel’s view that the disputed domain name is confusingly similar to the Complainant’s OLX trademark.

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 failed to demonstrate any rights or legitimate interests in the disputed domain name.

While the burden of proof on this element remains with the complainant, previous UDRP panels have recognized that this would result in the often impossible task of proving a negative, in particular as the evidence in this regard is often 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. See, 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 the absence of a Response – the Respondent has failed to file any evidence or make any convincing argument to demonstrate rights or legitimate interests in the disputed domain name according to 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 to use the Complainant’s trademark OLX in a confusingly similar way within the disputed domain name. Particularly, the Respondent has no license or any other authorization by the Complainant.

There is also no indication in the current record that the Respondent is commonly known by the disputed domain name, which was registered just a few months ago. Furthermore, the Respondent has failed to demonstrate any of the other non-exclusive circumstances evidencing rights or legitimate interests under the Policy, paragraph 4(c) or other evidence of rights or legitimate interests in the disputed domain name.

As a conclusion, the Panel finds that the Complainant has also 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 believes that the Respondent’s intention was to primarily create a likelihood of confusion among Internet users and/or to freeride on the goodwill of the Complainant’s OLX trademark, apparently for commercial gain and/or to disrupt the Complainant’s business, particularly for the following reasons.

The Panel is convinced that the Respondent was aware of the Complainant’s trademark when it registered the disputed domain name. At the date of registration of the disputed domain name, the Complainant’s OLX trademark was already actively and prominently used worldwide for many years.

In this regard, the Panel notes that the generic term “forum”, which is in addition to the OLX trademark incorporated to the disputed domain name, directly relates to the Complainant’s core business in providing an online platform for users, who want to buy and sell goods. It is the Panel’s view that this further supports the assessment of bad faith registration and use by the Respondent.

In view of the Panel, it is rather obvious that the Respondent tried to gain commercial benefit by using a domain name which fully incorporates the Complainant’s trademark OXL. In this regard, the Panel recognizes that the Respondent’s website which was linked to the disputed domain name did not adequately disclose the relationship, or lack thereof, between the Respondent and the Complainant, thus creating the false impression that the website is an official and authorized online platform of the Complainant.

Additionally, the Panel finds that the Respondent’s failure to respond to the Complaint also supports the conclusion that it has registered and is using the disputed domain name in bad faith. The Panel believes that, if the Respondent did in fact have legitimate purposes in registering and using the disputed domain name, it would have probably responded.

All in all, the Respondent did (in the absence of a Response) not provide any convincing argument and evidence for what legitimate purpose it registered the disputed domain name, although he had the chance to do so. In light of the above, the Panel cannot conceive of any good faith use of the disputed domain name which is not related to the trademark rights owned by the Complainant.

Hence, the Panel is convinced 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.

7. Decision

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 <olxforum.com> be transferred to the Complainant.

Kaya Köklü
Sole Panelist
Date: August 2, 2018

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