WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Sodexo v. FBS INC / Whoisprotection.biz / Serkan Hasyakan
Case No. D2021-4328
1. The Parties
The Complainant is Sodexo, France, represented by Areopage, France.
The Respondent is FBS INC / Whoisprotection.biz / Serkan Hasyakan, Turkey.
2. The Domain Names and Registrar
The disputed domain names <sodexonakitecevirme.click> and <sodexonakitecevirme.com> are registered with Isimtescil Bilisim A.S.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 22, 2021. On December 22, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On December 23, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on December 27, 2021, 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 December 28, 2021.
The Center sent an email communication in English and Turkish to the parties on December 27, 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 names is Turkish. The Complainant sent an email to the Center requesting English to be the language of the proceeding on December 28, 2021. The Respondent did not comment on the language of the proceeding.
The Center verified that the Complaint together with 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 6, 2022. In accordance with the Rules, paragraph 5, the due date for Response was January 26, 2022. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 27, 2022.
The Center appointed Kaya Köklü as the sole panelist in this matter on January 28, 2022. 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 renowned French company founded in 1966 that is specialized in food services and facility management. The Complainant’s group of companies is active globally with about 420,000 employees in 64 countries.
The Complainant is the owner of the SODEXO trademark, which is registered in a large number of jurisdictions. For instance, the Complainant is the owner of International Trademark Registration No. 964615, registered on January 8, 2008, designating among others Turkey, where the Respondent is reportedly located, and where it has been registered under the Turkish Trademark Registration No. 2008 46494 on July 29, 2009. The SODEXO trademark covers protection for a variety of products and services, particularly covering catering and facility management services (Annex 7 to the Complaint).
Furthermore, the Complainant holds and operates various domain names incorporating the SODEXO trademark, including <sodexo.com> and <sodexo.fr>.
Both disputed domain names were registered on November 13, 2021.
The Respondent is reportedly an individual from Turkey.
As evidenced by screenshots in the Complaint, the disputed domain name <sodexonakitecevirme.com> resolves to a website in Turkish language that prominently uses the Complainant’s SODEXO trademark and offers to turn SODEXO meal card balances into cash.
The disputed domain name <sodexonakitecevirme.click> does not resolve to an active website.
5. Parties’ Contentions
The Complainant is of the opinion that the disputed domain names are confusingly similar to its SODEXO trademark.
Furthermore, the Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain names.
Finally, it is argued that the Respondent has registered and is using the disputed domain names in bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
6.1. Preliminary Issue: 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 of the disputed domain names is Turkish, the Panel finds that it would be inappropriate, given the circumstances of this case, to conduct the proceeding in Turkish and to 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 proceeding, even though communicated in Turkish and English. The Panel particularly notes that the Respondent was given the opportunity to respond in Turkish and that this opportunity remained unused by the Respondent.
Consequently, the Panel is convinced that the Respondent will not be prejudiced by a decision being rendered in English.
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 names are 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 names; and
(iii) the disputed domain names have been registered and are 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 Complainant’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 4.3 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
To begin with, the Panel confirms that the Complainant has satisfied the threshold requirement of having trademark rights in SODEXO (Annexes 6 to the Complaint).
The Panel further finds that the disputed domain names are confusingly similar to the Complainant’s registered trademark, as both fully incorporate the SODEXO trademark. As stated at section 1.8 of the WIPO Overview 3.0, where the relevant trademark is recognizable within the disputed domain name, the addition of other terms does not prevent a finding of confusing similarity. Here, the mere addition of the Turkish terms “nakit” and “cevirme” (“cash” and “transfer” in the English language) does, in view of the Panel, not serve to prevent a finding of confusing similarity between the disputed domain names and the Complainant’s SODEXO 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 names.
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 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 names 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 SODEXO trademark in a confusingly similar way within the disputed domain names.
In the absence of a Response, the Respondent has failed to demonstrate any of the nonexclusive circumstances evidencing rights or legitimate interests under the Policy, paragraph 4(c), or provide any other evidence of rights or legitimate interests in the disputed domain names. Quite the contrary, the Panel cannot exclude that by offering cash for meal card values of the Complainant, the disputed domain name <sodexonakitecevirme.com> is intended to be or may already have been used in connection with possibly fraudulent or illegitimate activities. The lack of disclaimer as to the lack of affiliation to the Complainant further reinforces the Panel’s finding that the use is not a bona fide offering and merely an attempt to mislead Internet users for the Respondent’s commercial gain. Further, the non-use of the other disputed domain name clearly does not confer rights or legitimate interests upon the Respondent and noting the parallel registrations of the disputed domain names, the Panel’s concerns regarding the potential, or past, use for fraudulent or illegitimate activities remains.
In addition, the Panel notes that the nature of the disputed domain names carries a risk of implied affiliation or association, as stated in section 2.5.1 of the WIPO Overview 3.0.
Bearing all this in mind, the Panel does not see any basis for assessing a bona fide offering of goods or services by the Respondent.
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
Noting the composition of the disputed domain name, the Panel has no doubt that the Respondent had the Complainant and its SODEXO trademark in mind when registering and using the disputed domain names. It appears that the Respondent has registered the disputed domain names solely for the purpose of creating an association with the Complainant and its services.
In this regard, the Panel additionally notes that the Respondent has not published a visible disclaimer on the website linked to the disputed domain name <sodexonakitecevirme.com> to explain that there is no existing relationship between the Respondent and the Complainant. Rather, the prominent use of the SODEXO trademark on the website associated to the disputed domain name <sodexonakitecevirme.com> as well as the nature of both disputed domain names 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 as to the source, sponsorship, affiliation or endorsement of its website. In fact, and as already indicated above, the Panel cannot exclude that by offering a cash payment in return for meal card values, the disputed domain names are intended to be or may already have been used for obtaining bank account details of misled meal card owners for illegitimate purposes.
Finally, the Panel finds that the Respondent’s failure to respond to the Complainant’s contentions additionally supports the conclusion that it has registered and is using the disputed domain names in bad faith. The Panel is convinced that, if the Respondent had legitimate purposes in registering and using the disputed domain names, it would have probably responded. Moreover, the publicly available WhoIs for one of the disputed domain names was masked via the use of a privacy service, which, under the circumstances of this proceeding, also further supports an inference of bad faith.
Noting the above, the fact that the disputed domain name <sodexonakitecevirme.click> does currently not resolve to an active website does not change the Panel’s findings in this respect. See section 3.3. of the WIPO Overview 3.0.
Taking all facts of the case into consideration, the Panel concludes that the disputed domain names were registered and are 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 names <sodexonakitecevirme.click> and <sodexonakitecevirme.com> be transferred to the Complainant.
Date: February 11, 2022