WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Hacı Ömer Sabancı Holding Anonim Şirketi v. Ahmet Güler
Case No. D2016-1224
1. The Parties
The Complainant is Hacı Ömer Sabancı Holding Anonim Şirketi of Istanbul, Turkey, represented by BTS & Partners, Turkey.
The Respondent is Ahmet Güler of Ankara, Turkey, represented by Burak İsa Altın, Turkey.
2. The Domain Name and Registrar
The disputed domain name <sabanci.online> is registered with Gandi SAS (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on June 22, 2016. On June 22, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 23, 2016, 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 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 June 30, 2016. In accordance with the Rules, paragraph 5, the due date for Response was July 20, 2016. The due date for Response was extended until July 29, 2016. The Response was filed with the Center on July 31, 2016, two days after the extended due date for Response.
The Center appointed Kaya Köklü as the sole panelist in this matter on August 10, 2016. 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 Complaint is the parent company of the well-known Sabancı Group in Turkey. The Complainant's first company was founded in 1968 by a member of the Sabancı family. As of 2015, it has around 60,000 employees worldwide and a sales revenue of about USD 17 billion.
The Complainant is the registered owner of a large number of trademarks comprising the family name "Sabancı", in particular (but not limited to) European Union trademarks as well as registered trademarks in Turkey. The scope of trademark protection covers a large variety of goods and services. The first trademarks were registered decades ago.
According to the provided documents in the case file, the Complainant's trademark is acknowledged by the Turkish Patent Institute as a well-known trademark in Turkey (cf. Annex 4c).
It is noted that the Complainant also operates various domain names comprising its company name and trademark SABANCI, in particular <sabanci.com.tr> and <sabanci.com>.
The Respondent is an individual from Ankara, Turkey. According to the current record, the disputed domain name <sabanci.online> was created on August 26, 2015.
At the time of the Decision, the disputed domain name was not in active use.
Prior to these administrative proceedings, the Complainant sent a cease and desist letter to the Respondent on April 16, 2016. The Respondent's legal representative replied on April 27, 2016.
5. Parties' Contentions
The Complainant argues that the disputed domain name is confusingly similar to the Complainant's company name and trademark SABANCI.
Additionally, the Complainant asserts that the Respondent has no rights or legitimate interests in the disputed domain name. It is stated that the Complainant has never granted a license or any other right by which the Respondent would have been entitled to register and use the disputed domain name. It is further argued that the Respondent has never used and does not intend to use the disputed domain name for a bona fide offering of goods or services or for a legitimate non-commercial or fair use.
The Complainant has also no doubts that the Respondent must have known of the Complainant and its SABANCI trademarks well before registration of the disputed domain name, and hence must have registered and used the disputed domain name in bad faith.
The Respondent requests the denial of the Complaint.
He acknowledges that he was aware of the Complainant's trademark when registering the disputed domain name. However, he mainly argues that there is no active use of the trademark SABANCI by the Complainant in the sense of trademark law. Due to the alleged non-use as a trademark, the Respondent believes that there is no legal basis to assess a trademark infringement by the Respondent. Furthermore, the Respondent alleges that it has registered the disputed domain name for noncommercial purposes only, namely in order to establish a social platform for members of the Sabancı University.
6. Discussion and Findings
According to paragraphs 14(a) and 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 and on the basis of the Complaint where no Response has been submitted.
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 the trademarks 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. 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. Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110.
It is further noted that the Panel has taken note of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0") and, where appropriate, will decide consistent with the WIPO Overview 2.0.
A. Consideration of Late Response
The Panel notes that the Center received the Response by the Respondent on July 31, 2016 and, hence, two days after the extended due date for Response.
Concerning the admissibility of the late Response, the Panel follows the reasoning of the panel in Viz Communications, Inc. v. Redsun dba www.animerica.com and David Penava, WIPO Case No. D2000-0905, that it is appropriate to consider the circumstances of each case before deciding whether or not to admit late submissions.
In this case, given the fact that the Respondent's representative was able to demonstrate exceptional circumstances for the delay, the Panel has decided to take the Response into account.
B. Identical or Confusingly Similar
The Panel finds that the disputed domain name <sabanci.online> is confusingly similar to the SABANCI trademarks of the Complainant.
First, the Panel confirms that the Complainant has satisfied the threshold requirement of having trademark rights regarding its company name and mark SABANCI. As evidenced in the Complaint, the Complainant owns a large number of registered SABANCI trademarks worldwide, including in Turkey. The Turkish Patent Institute as the competent authority for trademark registrations in Turkey even acknowledged that the SABANCI trademark is a famous trademark in Turkey. Consequently, the Panel has no doubts that the Complainant has valid and enforceable rights in the trademark SABANCI.
The disputed domain name <sabanci.online> fully incorporates the trademark SABANCI, just with the difference that the Turkish letter "ı" has been replaced by the letter "i". The Panel is of the opinion that it is common practive to replace the letter "ı" by the letter "i" within domain names in order to allow also international Internet users with different keyboards to also access the relevant website.
In the Panel's view, this minor replacement does not negate the confusing similarity between the Complainant's trademark and the disputed domain name. The Panel finds that this minor change does not create a new distinctiveness separate from the Complainant's trademark SABANCI. On the contrary, the Panel is convinced that the disputed domain name creates the false impression that the Internet site linked to the disputed domain name is somehow officially linked to the Complainant or one of its group members.
Hence, the Panel is satisfied that the Complainant has met the requirements under paragraph 4(a) of the Policy.
B. Rights or Legitimate Interests
The Panel further believes that the Respondent has no rights or legitimate interests in the disputed domain name.
While the burden of proof remains with the Complainant, the Panel recognizes that this would result in the impossible task of proving a negative, in particular as the evidence is primarily within the knowledge of the Respondent. Therefore, the Panel agrees, in line 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 in paragraph 4(a)(ii) of the Policy, Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455.
The Panel finds that the Complainant has satisfied this requirement by providing uncontested prima facie evidence that the Respondent has no trademark, license or any similar right to use the Complainant's trademark in the disputed domain name.
The Respondent has failed to file any evidence or convincing arguments to demonstrate a right or legitimate interest according to the Policy, paragraph 4(c), or any other evidence of a right or legitimate interest in the disputed domain name. The Respondent's allegation that the disputed domain name was primarily registered for noncommercial purposes is in light of the facts of the case assessed by the Panel as a self-serving argument only.
The Panel concludes that the Complainant has also satisfied the second element of the Policy, namely, paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
The Panel is convinced that the Respondent has registered and is using the disputed domain name in bad faith.
First, the Panel is fully aware of the high reputation and recognition of the Complainant's company name and trademark SABANCI in Turkey. The Panel believes that the Complainant's trademark is among the brands with the highest public awareness in Turkey. Hence, it is clear that the Respondent knew of the Complainant and its SABANCI trademark when it registered the disputed domain name in 2015. This has been confirmed by the Respondent in his Response.
The Panel is of the opinion that the Respondent intentionally attempted to create a likelihood of confusion among customers and/or to otherwise take advantage of the Complainant's trademark, probably for commercial gain or some other illegitimate benefit.
Given the notoriety of the Complainant's mark and the nearly identical disputed domain name, the Panel cannot conceive any use of the disputed domain name by the Respondent in the circumstances that would be legitimate. Overall, the Panel finds that the above demonstrates a typical cybersquatting case.
The fact that the disputed domain name is currently parked with a hosting provider does not change the Panel's findings in this respect.
The Panel therefore 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.
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 <sabanci.online> be transferred to the Complainant.
Date: August 17, 2016