WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

SOLVAY Société Anonyme v. T. Taskin Sabah, Sabahweb Bilgi Teknolojileri Ithalat Ihracat Tic. Ltd. Sti

Case No. D2021-3304

1. The Parties

The Complainant is SOLVAY Société Anonyme, Belgium, represented by PETILLION, Belgium.

The Respondent is T. Taskin Sabah, Sabahweb Bilgi Teknolojileri Ithalat Ihracat Tic. Ltd. Sti, Turkey.

2. The Domain Name and Registrar

The disputed domain name <solvaytechnology.com> is registered with Nics Telekomunikasyon A.S. (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 6, 2021. On October 6, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 7, 2021, 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.

The Center sent an email communication in English and Turkish to the parties on October 7, 2021 regarding the language of the proceeding, as the Complaint has been submitted in English and the language of the registration agreement for the disputed domain name is Turkish. The Complainant sent an email to the Center requesting English to be the language of the proceeding on October 26, 2021. The Respondent did not comment on 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 of the Complaint, and the proceedings commenced on October 27, 2021. In accordance with the Rules, paragraph 5, the due date for Response was November 16, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 17, 2021.

The Center appointed Kaya Köklü as the sole panelist in this matter on November 22, 2021. 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.

On December 5, 2021, the Center received an email communication from a third party containing various unverified allegations. On December 15, 2021, the Panel issued a Panel Order No. 1 by which the third party was requested to identify itself and to clarify its relationship to the Respondent. The third party was also requested to provide evidence concerning its company registration as well as its field of business.

On December 18, 2021, the third party provided to the Center in Turkish language information on its relation to the Respondent and documents concerning its company registration as well as its field of business.

On December 23, 2021, the Complainant replied in English language on the supplemental filing of the third party by providing further information and additional documents.

4. Factual Background

The Complainant is a company with its registered seat in Belgium. It is globally active particularly in the field chemicals, including but not limited to high-performance polymers and composites technologies. It roots date back to the year 1863. Meanwhile, it employs more than 23,000 people in 64 countries. Its net turnover in 2020 was around 8,9 billion EUR (Annex 4 to the Complaint).

The Complainant is the owner of the SOLVAY trademark, which is registered in various jurisdictions, including in Turkey, where the Respondent and third party are apparently located. For instance, the Complainant is the owner of the European Union Trademark Registration No. 000067801, registered on January 8, 2001, and the Turkish Trademark Registration No. 2013 72474, registered on November 21, 2014, both of them covering protection for various products as protected in classes 1, 3, 4, 5, 7, 9, 12, 12, 17, 19, 20 and 31, (Annex 5 to the Complaint). According to the Turkish trademark register and the Complainant’s supplemental filing of December 23, 2021, the Complainant’s Turkish Trademark Registration also provides protection for vehicles and machines as protected in class 9.

The Complainant further owns and operates its official website (also in the Turkish language) at <solvay.com> (Annexes 9 and 14 to the Complaint).

The disputed domain name was registered on July 2, 2020.

The Respondent is reportedly located in Turkey. The third party, which sent the above-mentioned email communications to the Center, is also located in Turkey and supposed to be the person who controls the disputed domain name and operates the associated website. According to the provided documents in the supplemental filing of this third party on December 18, 2021, it has registered a company in Turkey on June 8, 2020, which includes the Complainant’s SOLVAY trademark as part of its company name.

The disputed domain name resolves to a website including only one page, prominently featuring the Complainant’s trademark and the Turkish words as follows: “Solvay Technoloji – Yarismadayiz”, in English: “Solvay Technology - we are in the competition” (Annex 7 to the Complaint). Additionally, in the lower right corner of the associated website, the name “nlksoft” is mentioned (Annex 7 to the Complaint).

Prior to initiation of this administrative proceeding, the Complainant tried in vain to solve the dispute amicably by sending emails to the Respondent on July 6, 2020 and on May 3, 2021, asking for the transfer of the disputed domain name (Annex 8 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 SOLVAY trademark.

It further argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name.

In addition, the Complainant is convinced that the Respondent has registered and is using the disputed domain name in bad faith.

B. Respondent

The Respondent did not reply to the Complainant’s contentions. However, the Center received the above-mentioned email communications from a third party, which probably has registered and controls the disputed domain name.

This third party indicates in its communication to the Center that it is active in the field of developing electronic vehicles and battery related technologies (supported by various provided documents on December 18, 2021).

This third party further indicates in its email communication to the Center that it was aware of the Complainant’s SOLVAY trademark at the time of registration of the disputed domain name. It, however, argues that it just wanted to create a link to the “Solvay Conference” of 1927, which is supposed to be one of the first international conferences on quantum technology and artificial intelligence (which was, as explained by the Complainant,organized by the founder of the Complainant).

The third party, however, does not disclose the identity and function of “nlksoft”, which is mentioned in the lower right corner of the associated website to the disputed domain name.

6. Discussion and Findings

6.1. Language of the Proceeding

The Panel determines in accordance with the Complainant’s request and the Rules, paragraph 11(a), that the language of this administrative proceeding shall be English. Although the language of the registration agreement is Turkish, the Panel finds that it would be inappropriate, given the circumstances of this case, to conduct the proceedings in Turkish and request a Turkish translation of the Complaint while the Respondent has failed to raise any objection or even to respond to the Center’s communication about the language of the proceedings, even though communicated in Turkish and in English.

The Panel particularly notes that the Respondent was given the opportunity to respond in Turkish and that this opportunity was used at least by the third party to this administrative proceeding.

Consequently, the Panel is convinced that the Respondent will not be prejudiced by a decision being rendered in English.

6.2 Procedural Issues

First, the Panel accepts the third party’s submissions to the Center as submissions by the person who actually has registered and controls the disputed domain name. The third party provided evidence showing that the Respondent was responsible of designing the website connected to the disputed domain name, on behalf of the third party. Hence, the Panel accepts these submissions by the third party as submissions from the Respondent and will jointly refer to them in the following as “the Respondent”, whenever appropriate.

Second, the Panel is aware that the Respondent’s submission of December 5, 2021 was sent to the Center more than two weeks after the due date for the Response and only one day before the decision due date. However, the Panel accepts to consider this late submission in this administrative proceeding as its content has relevance for the present Decision.

Third, and based on the information provided in the Respondent’s late submission, the Panel found it necessary to issue the above-mentioned Panel Order asking the involved parties to submit further information and documents relating to the merits of the case. The parties made use of this opportunity within the respective deadlines set by the Panel, so that these supplemental submissions were also to be taken into account for the purpose of this Decision.

6.3 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.

It is 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

To begin with, the Panel confirms that the Complainant has satisfied the threshold requirement of having relevant trademark rights. As evidenced in the Complaint, the Complainant is the owner of the SOLVAY trademark, which has been first used and registered many years ago, including in Turkey, where the Respondent and the involved third party are located (Annex 5 to the Complaint).

The Panel finds that the disputed domain name is confusingly similar to the Complainant’s SOLVAY trademark, as the disputed domain name fully comprises the SOLVAY trademark. As stated at section 1.8 of the WIPO Overview 3.0, where a trademark is recognizable within the disputed domain name, the addition of other terms would not prevent a finding of confusing similarity. In the present case, the mere addition of the term “technology” does, in view of the Panel, not serve to avoid a finding of confusing similarity between the disputed domain name and the Complainant’s SOLVAY 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

While the burden of proof remains with the Complainant, the Panel recognizes that this would often result in the impossible task of proving a negative, in particular as the evidence needed to show the Respondent’s rights or legitimate interests is 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 shifts to the Respondent to show that it has rights or legitimate interests in the disputed domain name to meet the requirements of paragraph 4(a)(ii) of the Policy. Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455.

With its Complaint, the Complainant has provided prima facie evidence that the Respondent has no license or alike to use the Complainant’s SOLVAY trademark in a confusingly similar way within the disputed domain name.

The Respondent, in return, argues a legitimate interest or even right in the disputed domain name by mainly asserting to be active in a field of technology, which allegedly does not interfere with the business of the Complainant.

The Complainant, however, demonstrated in its Response to the Panel Order No. 1 that it is also active in the field of e-mobility technology, including but not limited to electric motors and electric drivetrains (Annex 13 to the Complaint). In addition, the Complainant’s SOLVAY trademark registration in Turkey (no. 2013 72474) covers protection also for vehicles and related parts as protected in class 9.

Hence, and different to the allegations of the Respondent, the Panel concludes that the asserted business activities of the Respondent even strongly interfere with the Complainant’s business activities and registered SOLVAY trademark rights.

In this regard, the Panel notes that the Respondent failed to demonstrate (or even to argue) any of the other non-exclusive circumstances evidencing rights or legitimate interests under the Policy, paragraph 4(c). Hence, the Panel cannot conceive of any right and legitimate interest of the Respondent to use the disputed domain name for its alleged purposes, except with an authorization of the Complainant. In the Panel’s view, this assessment is further supported by the fact that the nature of the disputed domain name, which fully comprises the Complainant’s SOLVAY trademark in combination with the term “technology”, carries a risk of implied affiliation (see section 2.5.1 of the WIPO Overview 3.0). This is particularly the case as the term “technology” is also used by some international subsidiaries of the Complainant as part of their company names (Annex 12 to the Complaint).

Consequently, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

As indicated by the Respondent in its email communications to the Center, the Respondent carried out a diligent search and was aware of the Complainant and its SOLVAY trademark before registering the disputed domain name. Even more, the Respondent explicitly confirms in its communications to the Center that it had Mr. Earnest Solvay, the founder of the Complainant, in mind when it registered the disputed domain name.

This, however, makes it difficult for the Panel to believe the Respondent’s implied allegation that it did not realize that its business activities overlap and legally interfere with the Complainant’s SOLVAY trademark rights in Turkey as well as its business activities around the world, particularly as all relevant information on the Complainant and its trademark rights are publicly and easily accessible in the Internet.

In this regard, the Panel does not ignore that the Respondent has established a Turkish company with a company name similar to the disputed domain name and has apparently also started some product development activities in the field of e-mobility.

The Panel, however, is convinced that the establishment of a company as such does not prevent a finding of bad faith registration and use, particularly if, as in the present case, the Respondent was not able to fully convince the Panel of its alleged good faith intentions during registration and use of the disputed domain name.

The Panel rather believes that the Respondent has chosen the disputed domain name to freeride on the notoriety of the Complainant’s SOLVAY trademark and to generate traffic to its website by deliberately taking the risk of misleading users, who may falsely create an association between the disputed domain name on the one hand and the Complainant and its SOLVAY trademark on the other hand.

In this regard, the Panel once again notes that the disputed domain name fully comprises the Complainant’s SOLVAY trademark in combination with the term “technology”, which in view of the Panel increases the risk of implied affiliation. Even though this risk is in view of the Panel obvious, the Respondent has not attempted to prevent any such misleading effect, e.g. by using a disclaimer on the website associated to the disputed domain name to explain that there is no existing relationship or affiliation between the Respondent and the Complainant. Quite the contrary, noting also the composition of the disputed domain name, the Panel rather believes that the Respondent tries to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant as to the source, sponsorship, affiliation or endorsement of its website.

In addition, the Panel notes that the Complainant approached the Respondent in vain already on July 6, 2020, and hence, only four days after the disputed domain name was registered by the Respondent, and hence, at a very early stage. Even the Complainant’s second attempt to contact the Respondent on May 3, 2021 remained without reaction by the Respondent. In view of the Panel, the Respondent’s failure to respond to the Complainant’s communications prior to this administrative proceeding supports the conclusion that it has registered and is using the disputed domain name in bad faith. If the Respondent did in fact have legitimate purposes in registering and using the disputed domain name, it would have probably responded to the Complainant.

Finally, the Panel cannot conceive of any plausible and legitimate use of the disputed domain name by the Respondent within in its alleged field of business, which would be in good faith and not fall under the scope of protection of the Complainant’s SOLVAY trademark, particularly in light of the Complainant’s Turkish trademark registration of 2014.

All in all, the Panel concludes 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 <solvaytechnology.com> be transferred to the Complainant.

Kaya Köklü
Sole Panelist
Date: December 31, 2021