Westmore · UDRP DecisionXn--hzlal-n4ac.com
The Panel ordered transfer of <hızlıal.com>, finding that it incorporated the Complainant's HIZLIAL trademark, that the Respondent lacked rights or legitimate interests, and that the domain was registered and used in bad faith. The findings relied principally on the domain's redirection to a competing online retailer, the Respondent's apparent awareness of the Complainant's mark, and circumstances indicating an intent to sell or transfer the domain for gain.
The timeline behind xn--hzlal-n4ac.com
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
Westmore reconstructs the full history behind xn--hzlal-n4ac.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The case illustrates how an internationalized domain corresponding to an earlier trademark can satisfy all three UDRP elements when it is used to redirect users to a directly competing business. It also shows that filing a trademark application corresponding to a disputed domain does not necessarily create legitimate interests where the Panel finds that the application was intended to obtain an unfair advantage, facilitate a sale, or circumvent the UDRP.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Trend Magazacilik ve Internet Hizmetleri Kuyumculuk Sanayi ve Dis ticaret A.S. v. Cenk Taylan Erdogan Case No. D2015-1195 1. The Parties The Complainant is Trend Magazacilik ve Internet Hizmetleri Kuyumculuk Sanayi ve Dis ticaret A.S. of Istanbul, Turkey, represented by Deris Attorneys at Law Partnership, Turkey. The Respondent is Cenk Taylan Erdogan of Ankara, Turkey. 2. The Domain Name and Registrar The disputed domain name <hızlıal.com> (<xn--hzlal-n4ac.com>) is registered with Namefinger.com LLC (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 10, 2015. On July 10, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 16, 2015, 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on July 23, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was August 12, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 13, 2015. The Center appointed Dilek Ustun Ekdial as the sole panelist in this matter on August 26, 2015. 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 September 4, 2015, the Center received a supplemental filing from the Complainant. The Panel considers that it is able to render its decision in the present matter on the basis of the pleadings and, in accordance with paragraph 10(e) of the Rules, declines to consider the Complainant’s supplemental filing. The Panel notes in any event even if the supplemental filing were considered, it would not change the Panel’s conclusions in this matter. 4. Factual Background The Complainant is recognized over the past years in the sector with the term “Hızlıal”, which is an online retailer marketing throughout Turkey. The Complainant owns the trademarks which are composed the words “hızlıal”, effective from the year 2007. The domain name <hizlial.com> was registered by the Complainant respectively on February 13, 2007. The disputed domain name <hızlıal.com> was created on May 10, 2015 (as indicated by the Registrar and the public WhoIs record). 5. Parties’ Contentions A. Complainant The Complainant owns the WWW.HIZLIAL.COM and HIZLIAL trademarks, which is protected throughout Turkey. The Complainant has established the “www.hizlial.com” website in order to market electronic and useful equipments to consumers. The main goal of the Complainant is to provide cost effective solutions to customers as they market online at “www.hizlial.com”. To this effect, the Complainant has been focused on the HIZLIAL trademark and related domain names as they provide the most effective services to the customers. HIZLIAL is a well-known trademark. Consequently, the Respondent must have known about the Complainant’s trademark before the disputed domain name was registered. The disputed domain name <hızlıal.com> is redirected to the Respondent’s web site “www.avanta.com.tr” which also an online retailer shop, operating within the same activity field as the Complainant. This clearly indicates that the disputed domain name has been purchased by the Respondent in order to take unfair advantage from the notoriety of the Complainant’s online retailer shop. The disputed domain name <hızlıal.com> can be considered as confusingly similar to the trade and service mark in which the Complainant has rights. The Respondent has no prior rights or legitimate interests in the disputed domain name. The Respondent is not affiliated with the Complainant in any way nor has the Respondent been authorized to use the trademark HIZLIAL. The Respondent has never been commonly known by the disputed domain name or the trademark HIZLIAL. The Respondent uses the disputed domain name to divert web traffic for commercial gain using the goodwill built up by the Complainant. The disputed domain name resolves to a website which is providing the same services, which evidences the Respondent’s intention to exploit Internet user’s confusion between the Complainant’s trademark and the disputed domain name to obtain commercial benefit. The Respondent applied for a trademark for “xn--hzlal-n4ac.com” (corresponding to the disputed domain name) and has contacted the Complainant in order to transfer the disputed domain name and the related trademark application before the Turkish Patent Institute in exchange of USD 170,000. The Complainant states that the correspondences clearly indicates that the disputed domain name has been registered and used in bad faith as an unfair gain to the Respondent. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 4(a) of the Policy requires that a complainant prove each of the following three elements to obtain a decision that a domain name should be either cancelled or transferred: (i) The domain name registered by a respondent 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 with respect to the domain name; and (iii) The domain name has been registered and is being used in bad faith A. Identical or Confusingly Similar The Complainant has established it has rights to the HIZLIAL trademark. The disputed domain name incorporates the Complainant’s HIZLIAL trademark in its entirety. It is a well-established rule that in making an enquiry as to whether a trademark is identical or confusingly similar to a domain name, the generic Top-Level Domain (“gTLD”) extension, in this case “.com” may be disregarded (See Rohde & Schwarz GmbH & Co. KG v. Pertshire Marketing, Ltd. , WIPO Case No. D2006-0762 ). Additionally, as the Respondent is in default, it has brought no argument to support the contention that the disputed domain name is not identical or confusingly similar to a trademark or service mark in which the Complainant has rights. Therefore, the Panel finds that the requirement of paragraph 4(a)(i) of the Policy is met. B. Rights or Legitimate Interests The Panel finds that the Complainant has made a prima facie case that the Respondent lacks rights or legitimate interests. The Complainant showed, inter alia, that the Respondent has neither a license nor any other permission to use the Complainant’s trademarks in a domain name. The Respondent has failed to demonstrate such rights or legitimate interests. The Respondent has not provided any evidence of the type specified in paragraph 4(c) of the Policy, or of any other circumstances giving rise to a right or legitimate interest in the disputed domain name. It is clear that the Respondent has not demonstrated any bona fide offering of goods or services by its using of the disputed domain name and has not rebutted the Complainant’s prima facie case. Nor has the Respondent shown that it has been commonly known by the disputed domain name. The Panel further finds that given the use made of the disputed domain name, when the Respondent registered the disputed domain name it must have known the HIZLIAL trademark of the Complainant. It registered the disputed domain name because it would be recognized as such. The Panel furthermore finds that under these circumstances the Respondent’s trademark application was most likely filed in an attempt to gain an unfair advantage in a view to sell the disputed domain name to the Complainant and to circumvent the application of the UDRP. See paragraph 2.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”). Such activity does not give rise to any rights or legitimate interests in the disputed domain name. The Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name, and that the requirement of paragraph 4(a)(ii) of the Policy is met. C. Registered and Used in Bad Faith The Panel is of the opinion that the Respondent must have been aware of the Complainant and its trademark rights when it registered the disputed domain name. Bearing this in mind, the Panel finds the Respondent’s bad faith is illustrated as the disputed domain name resolves to a web site offering services in direct competition with the Complainant’s services. The Panel is prepared to infer that the Respondent is taking advantage of the goodwill and reputation of the Complainant’s trademark for commercial gain and it is well established that such is evidence of bad faith. See, Société des Bains de Mer et du Cercle des Etrangers à Monaco v. Universal Spheres Inc., WIPO Case No. D2010-0822 . Further, such use may divert actual clients away from the Complainant and disrupt the Complainant’s business. The Panel further is of the opinion in this case the undisputed facts and circumstances reflect that the Respondent registered or acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the disputed domain name registrations in a manner constituting bad faith under paragraph 4(b)(i) of the Policy. As in Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003 and Ladbroke Group Plc v. Sonnoma International LDC, WIPO Case No. D2002-0131 , after examining all circumstances surrounding the registration and use of the disputed domain name, the Panel finds that the Respondent registered and is using the disputed domain name in bad faith. Accordingly the Panel finds in favor of the Complainant on the third element of the Policy. Accordingly, the Panel finds that the Complainant has satisfied the requirements of 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 <hızlıal.com> (<xn--hzlal-n4ac.com>) be transferred to the Complainant. Dilek Ustun Ekdial Sole Panelist Date: September 14, 2015
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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