WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Pegasus Hava Taşımacılığı A.Ş. v. WhoisGuard, Inc. / Eduard Kamalov
Case No. D2019-0038
1. The Parties
The Complainant is Pegasus Hava Taşımacılığı A.Ş. of Istanbul, Turkey, represented by Dericioglu & Eren Law Office, Turkey.
The Respondent is WhoisGuard, Inc. of Panama City, Panama / Eduard Kamalov of Naberezhnie Chelni, Russian Federation.
2. The Domain Name and Registrar
The disputed domain name < flypgs.info> is registered with NameCheap, Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 8, 2019. On January 8, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 8, 2019, the Registrar transmitted by email to the Center its verification response 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 January 9, 2019 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on January 11, 2019.
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 January 14, 2019. In accordance with the Rules, paragraph 5, the due date for Response was February 3, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 4, 2019.
The Center appointed Wilson Pinheiro Jabur as the sole panelist in this matter on February 21, 2019. 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, known as Pegasus, is a low-cost airline company in Turkey, founded in 1990. Operating the <flypgs.com> domain name, registered in 2005, it is also the owner of the Turkish Trademark Registration No. 2011 12917, dated March 22, 2012 and the International Trademark Registration No. 1107049, dated September 30, 2011 for FLYPGS in class 39.
The disputed domain name <flypgs.info> was registered on March 23, 2018 and was in used in connection with a pornographic website. Currently no active webpage resolves from the disputed domain name.
5. Parties’ Contentions
The Complainant asserts to be ranked amongst the top four scheduled airlines operating in Turkey, operating under the PEGASUS trademark which has been recognized as a well-known trademark by the Turkish Patent Institute (Annex 7 to the Complaint).
It further claims to have registered the <flypgs.com> domain name which stands for “Fly Pegasus”, having registered and largely used the FLYPGS trademark, being the 219th most visited website in Turkey.
The disputed domain name, <flypgs.info>, under the Complainant’s view, was registered by the Respondent with a clear intention to mislead Internet users, creating a likelihood of confusion with the Complainant’s trademark and domain name.
Moreover, the Complainant asserts that the Respondent has no rights or legitimate interests in respect of the disputed domain name given that the Respondent has been using it in connection with a pornographic website, tarnishing the Complainant’s trademark, what cannot be considered a legitimate fair use of the disputed domain name.
As to the registration and use of the disputed domain name in bad faith the Complainant argues that being well-known in Turkey as well as in other countries, the Respondent was undoubtedly aware of its existence and is seeking to attract Internet users for commercial gain by creating a likelihood of confusion with the Complainant, also tarnishing the Complainant’s reputation, as the Complainant was successful in blocking the access in Turkey to the Respondent’s website corresponding to the disputed domain name as per decision in the docket No. 2018/3521 of Istanbul Anadolu 5th Criminal Courts.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy sets forth the following three requirements which have to be met for this Panel to order the transfer of the disputed domain name to the Complainant:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark 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.
The Complainant must prove in this administrative proceeding that each of the aforesaid three elements is present so as to have the disputed domain name transferred to it, according to paragraph 4(a) of the Policy.
A. Identical or Confusingly Similar
The Complainant has established rights in the FLYPGS trademark.
The disputed domain name is identical to the Complainant’s trademark, disregarding the generic Top-Level Domain (“gTLD”).
The Panel therefore finds that the Complainant has established the first element of paragraph 4(a) of the Policy.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a non-exclusive list of circumstances that may indicate a respondent’s rights to or legitimate interests in a domain name. These circumstances are:
(i) before any notice of the dispute, the respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent (as an individual, business, or other organization) has been commonly known by the domain name, even if it has not acquired trademark or service mark rights; or
(iii) the respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
As the evidence submitted clearly indicates, the Complainant has made out a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name given that the Complainant holds a well-known trademark and that the disputed domain name has been used to redirect Internet users to pornographic websites, risking the tarnishment of the Complainant’s trademark.
The Respondent, in not responding to the Complaint, has failed to invoke any of the circumstances, which could demonstrate, pursuant to paragraph 4(c) of the Policy, any rights or legitimate interests in the disputed domain name. This entitles the Panel to draw any inferences from such default as it considers appropriate, pursuant to paragraph 14(b) of the Rules.
Also, the absence of any trademarks or trade names registered by the Respondent corresponding to the disputed domain name, or any possible link between the Respondent and the disputed domain name, that could be inferred from the details known of the Respondent or the webpage relating to the disputed domain name, corroborate the absence of a right or legitimate interest.
Under these circumstances and absent evidence to the contrary, the Panel finds that the Respondent does not have rights or legitimate interests with respect to the disputed domain name.
C. Registered and Used in Bad Faith
This case presents the following circumstances which indicate bad faith registration and use of the disputed domain name given that:
a) the disputed domain name was registered on March 23, 2018, which is long after the Complainant registered its domain name in 2005 and respective trademark in 2011;
b) the Respondent has provided no evidence whatsoever of any actual or contemplated good faith use by it of the disputed domain name;
c) the redirection of the disputed domain name to pornographic websites;
d) the absence of any reply to the Complaint;
e) the physical addresses provided by the Respondent in the disputed domain name’s WhoIs appear to be false; and
f) the current passive holding of the disputed domain, with no active content or contemplated bona fide offering of goods or services.
For the reasons above, the Respondent’s conduct has to be considered, in this Panel’s view, as bad faith registration and use of the disputed domain names pursuant to paragraph 4(b)(iv) 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 <flypgs.info> be transferred to the Complainant.
Wilson Pinheiro Jabur
Date: March 4, 2019