WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
The Procter & Gamble Company v. Selami Dolar
Case No. D2018-1739
1. The Parties
The Complainant is The Procter & Gamble Company of Cincinnati, Ohio, United States of America (“United States”), represented by Studio Barbero, Italy.
The Respondent is Selami Dolar of Istanbul, Turkey.
2. The Domain Name and Registrar
The disputed domain name <pampers.net> is registered with IHS Telekom, Inc. (the “Registrar”).
3. Procedural History
The Complaint in English was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 1, 2018. On August 1, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 2, 2018, 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 verification dated August 2, 2018 stating that Turkish is the language of the registration agreement of the disputed domain name, the Center sent a request in English and Turkish that the Parties submit their comments on the language of the proceeding on August 2, 2018. On the same day, the Complainant submitted its request for English to be the language of the proceeding. The Respondent did not submit any request regarding 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 in English and Turkish of the Complaint, and the proceedings commenced on August 8, 2018. In accordance with the Rules, paragraph 5, the due date for Response was August 28, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 29, 2018.
The Center appointed Kaya Köklü as the sole panelist in this matter on September 4, 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 is a longstanding company with its registered seat in the United States. It mainly operates in the field of cleaning agents, personal care and hygienic products. It is globally active and has locations around the world, including in Turkey.
The Complainant is the owner of various PAMPERS trademarks, registered in a large number of jurisdictions, including in Turkey. According to the documents submitted by the Complainant (cf. Annexes 3 and 4 to the Complaint), the Complainant is, inter alia, the registered owner of the Turkish Trademark Registrations No. 134736 (registered on August 17, 1992) and No. 2012 62951 (registered on November 27, 2013), both covering trademark protection particularly for baby care products.
The Complainant also owns and operates various domain names which incorporate its trademark PAMPERS, such as <pampers.com>.
The Respondent is an individual from Istanbul, Turkey.
The disputed domain name was first registered on November 21, 2001.
The disputed domain name does not resolve to an active website. However, as evidenced in the Complaint, it resolved until recently to an online store offering products under the Complainant’s trademark PAMPERS for sale, without any visible disclaimer disclosing the lack of relationship between the Respondent and the Complainant.
According to the available record, the Respondent did not reply to various cease-and-desist letter sent by the Complainant’s representatives over the past years.
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 identical to its PAMPERS 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 an official or authorized link between 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 PAMPERS trademark, when registering and taking control over the disputed domain name.
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 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. The Panel notes also that the website was in English prior to the filing of the Complaint (see Annex 7.2 of the Complaint).
In light of the above, the Panel concludes 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 consensus views captured therein.
A. Identical or Confusingly Similar
The Panel finds that the disputed domain name is identical to the PAMPERS trademark of the Complainant.
First, the Panel confirms that the Complainant has satisfied the threshold requirement of having respective trademark rights. As evidenced in the Complaint, the Complainant is the owner of various PAMPERS trademark registrations around the world, including in Turkey where the Respondent is located.
The disputed domain name is identical to the Complainant’s PAMPERS trademark as it incorporates the Complainant’s trademark in its entirety without any additions or amendments.
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 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 PAMPERS within the disputed domain name.
There is also no indication in the current record that the Respondent is commonly known by the disputed domain name. In the absence of a response, the Respondent has also 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.
The Panel particularly notes that the website at the disputed domain name was offering for sale the Complainant’s products and did not adequately disclose the relationship, or lack thereof, between the Respondent and the Complainant, thus creating the false impression that the Respondent might be an official and authorized agent for the Complainant’s baby care products in Turkey. In view of the Panel, this takes the Respondent out of any conceivable safe harbour for purposes of the second element.
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 is convinced that the Respondent must have had the Complainant’s trademark in mind when registering the disputed domain name. It even appears that the Respondent has registered the disputed domain name solely for the purpose of creating an association with the Complainant.
After having reviewed the Complainant’s screenshot of the website, which was linked to the disputed domain name (cf. Annex 7.2 to the Complaint), the Panel is convinced that the Respondent has intentionally registered the disputed domain name in order to generate traffic to its own website. The Panel notes that the Respondent did not publish any prominent disclaimer on the website linked to the disputed domain name to explain that there is no relationship between the Respondent and the Complainant. Quite the opposite, the design of the website previously linked to the disputed domain name and the prominent use of various Complainant’s trademarks is in view of the Panel sufficient evidence that the Respondent intentionally tries to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s PAMPERS trademark as to the source, sponsorship, affiliation or endorsement of its website.
The fact that the disputed domain name is inactive at the time of the decision does not change the Panel’s findings in this respect.
Also, the Panel finds that the Respondent’s failure to respond to the Complaint or the Complaint’s various attempts to solve the dispute inter partes supports the conclusion that it has registered and is using the disputed domain name in bad faith. The Panel in fact 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 Panel concludes that the disputed domain name was registered and is being used in bad faith and that the Complainant has also 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 <pampers.net> be transferred to the Complainant.
Date: September 17, 2018