WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
D-Market Elektronik Hizmetler ve Ticaret Anonim Şirketi v. Osman Yavuz
Case No. D2019-0727
1. The Parties
The Complainant is D-Market Elektronik Hizmetler ve Ticaret Anonim Şirketi of Istanbul, Turkey, represented by Dericioglu & Eren Law Office, Turkey.
The Respondent is Osman Yavuz of Istanbul, Turkey.
2. The Domain Name and Registrar
The disputed domain name <heppsiburada.com> is registered with Key-Systems GmbH (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 1, 2019. On April 1, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 2, 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 April 3, 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 April 5, 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 April 8, 2019. In accordance with the Rules, paragraph 5, the due date for Response was April 28, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 29, 2019.
The Center appointed Emre Kerim Yardimci as the sole panelist in this matter on May 2, 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, is the owner and the operator of the e-commerce platform “www.hepsiburada.com”.
The Complainant, starting from the year 2000, has registered several Turkish trademarks that incorporate “hepsiburada” indication.
The Complainant’s HEPSİBURADA.COM trademark has been registered on April 26, 2002 with the registration number 2000 20142 before the Turkish Patent and Trademark Office.
The Complainant has registered HEPSİBURADA trademark on August 1, 2013 with the registration number 2012 79983 before the Turkish Patent and Trademark Office.
The Complainant’s HEPSİBURADA.COM trademark has been recognized as a well-known trademark before the Turkish Patent and Trademark Office with the number T/02598 on May 2016.
According to the Alexa results, the website “www.hepsiburada.com” is the 10th most visited website in Turkey and 773th in the world.
The Complainant has also registered the domain names <hepsiburada.com> on July 4, 2000 and <hepsiburada.com.tr> on May 09, 2003 respectively.
The Respondent has registered the disputed domain name with the Registrar on May 11, 2018. According to the current record, the Respondent is a physical person domiciled in Istanbul. The disputed domain name is currently inactive.
The Complainant tried to contact the Respondent on May 30, 2018, through a cease and desist letter by email and requested the voluntary transfer of the disputed domain name until June 5, 2018. The Respondent did not reply to the Complainant.
5. Parties’ Contentions
The Complainant requests the transfer of the disputed domain name.
The Complainant asserts that the disputed domain name is identical to the Complainant’s trademark HEPSİBURADA.COM and that the fame of the HEPSİBURADA.COM trademark has been confirmed in numerous previous UDRP decisions.
The Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain name. It is not commonly known by the domain name. Moreover, the Respondent has not been authorized or licensed by the Complainant to use the HEPSİBURADA.COM trademark. The Complainant claims that the Respondent cannot assert that it has made or is currently making a legitimate noncommercial or fair use of the disputed domain name.
The Complainant contends that the Respondent has registered and is using – by holding passively – the disputed domain name in bad faith. The Complainant claims that the Respondent must have known the Complainant’s trademark when registering the disputed domain name and that the Respondent clear intention is to use the disputed domain name for redirecting it to other online sites with the aim to attract, for commercial gain, Internet users by creating a likelihood of confusion with the Complainant’s trademark and for the purpose of disrupting the Complainant’s business.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Pursuant to paragraph 4(a) of the Policy, the Complainant is required to prove the presence of each of the following three elements to obtain the remedy it has requested:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(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.
A. Identical or Confusingly Similar
Pursuant to paragraph 4(a)(i) of the Policy, a complainant must prove that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights.
The Panel finds that the Complainant satisfies this element by virtue of their registrations in Turkey.
The Panel further finds that the disputed domain name is almost identical to HEPSİBURADA.COM trademark insofar as only the letter “p” is repeated in the disputed domain name. See section 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).
The Panel therefore finds that the Complainant has satisfied paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The onus is on the Complainant to make out at least a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name and it is then for the Respondent to rebut this case.
The Panel accepts the Complainant’s submissions that the Respondent does not appear to be known by the disputed domain name, has not used or made demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or services, is not making a legitimate noncommercial or fair use of the disputed domain name, and has no consent from the Complainant to use its trademark.
The Respondent has not filed a Response.
The Complainant has made out its prima facie case under this element of the Policy and the Respondent has failed to rebut it. Accordingly, the Complainant succeeds in relation to the second element of the Policy.
C. Registered and Used in Bad Faith
At the time of registration of the disputed domain name which occurred in 2018, the Complainant’s trademark HEPSİBURADA.COM was a well-known trademark for a very long time. As the Complainant submits, it is inconceivable beyond any doubt that the Respondent would not have known of the Complainant’s trademark. The Respondent did not oppose such arguments.
The incorporation of a well-known trademark into a domain name by a registrant having no plausible explanation for doing so may be, in and of itself, an indication of bad faith (Veuve Clicquot Ponsardin, Maison Fondée en 1772 v. The Polygenix Group Co., WIPO Case No. D2000-0163; General Electric Company v. CPIC NET and Hussain Syed, WIPO Case No. D2001-0087; Microsoft Corporation v. Montrose Corporation, WIPO Case No. D2000-1568).
The Panel believes that the additional same letter (“p” in this case) is a blatant example of typosquatting thus bad faith where the spelling of a trademark has been altered by the addition of only one letter.
The Respondent has registered the disputed domain name but has not put it to any material use.
Thus the Respondent is holding the disputed domain name passively. It has long been generally held in UDRP decisions that the passive holding of a domain name that incorporates a well-known trademark, without obvious use for an Internet purpose, does not necessarily prevent a finding of bad faith in line with the requirements of paragraph 4(a)(iii) of the Policy (Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003).
The Complainant has established the requirements of 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 <heppsiburada.com> be transferred to the Complainant.
Emre Kerim Yardimci
Date: May 16, 2019