Westmore · UDRP DecisionSimfershop.com
The Panel ordered transfer of <simfershop.com>. It found the domain confusingly similar to the Complainant’s SIMFER trademark because it incorporated the mark in full with the generic term “shop.” The Respondent lacked rights or legitimate interests because there was no authorization, evidence of being commonly known by the domain, or qualifying bona fide reseller activity. Bad faith was established from the Respondent’s knowledge of the SIMFER mark, the sale of the Complainant’s products through a website that did not dispel an impression of affiliation, and evidence that the Respondent had registered other domain names incorporating Turkish trademarks.
The timeline behind simfershop.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 simfershop.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The decision illustrates that an unauthorized seller does not gain a legitimate interest merely by offering genuine products associated with the incorporated mark. A trademark-plus-“shop” domain, coupled with a website that sells the trademark owner’s products without clearly disclosing the lack of affiliation, may create the very impression of sponsorship that the UDRP addresses. The case also shows how other trademark-related domain registrations may reinforce a bad-faith finding when the panel treats them as evidence of a broader registration practice.
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 Simfer Dayanikli Tuketim Mamulleri Ticaret ve Sanayi Anonim Sirketi v. Fatih Gedik, Fatihgedik Case No. D2016-0092 1. The Parties The Complainant is Simfer Dayanikli Tuketim Mamulleri Ticaret ve Sanayi Anonim Sirketi of Istanbul, Turkey, represented by Dericioglu & Yasar Law Office, Turkey. The Respondent is Fatih Gedik Fatihgedik, of Bursa, Turkey. 2. The Domain Name and Registrar The disputed domain name <simfershop.com> is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 16, 2016. On January 18, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 19, 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 January 21, 2016. In accordance with the Rules, paragraph 5, the due date for Response was February 10, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 11, 2016. The Center appointed Dilek Ustun Ekdial as the sole panelist in this matter on February 19, 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 Simfer is a household appliances manufacturer focused on improving people’s lives through timely innovations since 1970, with its tailor made solutions for various market needs. The Complainant has used the term “Simfer” as its trade name for more than 20 years. The Complainant owns various trademarks including the term “Simfer” starting with the first application dating back to 1985. According to the information provided in the Complaint (and as confirmed by the Registrar), the disputed domain name <simfershop.com> was created on September 10, 2015 and registered in the name of the Respondent. The Respondent is an individual located in Bursa, Turkey. 5. Parties’ Contentions A. Complainant The Complainant argues that it has been in business in Turkey since 1970. As a remedy in these administrative proceedings, the Complainant requests the transfer of the disputed domain name, based on the following reasons: The Complainant believes that the disputed domain name is identical or at least confusingly similar to the SIMFER trademark as it fully incorporates the mark SIMFER. The Complainant argues that the Respondent has no right or legitimate interest in respect of the disputed domain name and has registered and used it in bad faith. In this regard, the Complainant underlines that it has never granted a permission or license to the Respondent to use the trademark SIMFER. It is further alleged that the Respondent has never used and does not intend to use the mark SIMFER or the disputed domain name in connection with a bona fide offering of goods or services or in any other legitimate commercial or noncommercial way. Finally, the Complainant believes that the Respondent must have known the SIMFER trademark well before the registration of the disputed domain name. The Complainant adds that “simfershop” is not a generic or meaningful word and/or the Respondent does not have any affiliation with or legal interest in it. Additionally, the disputed domain name was registered on September 10, 2015, and the Complainant has been using the term “Simfer” since the 1980’s. According to the Complainant, it is obvious that SIMFER is associated with the Complainant which has been used for many years as its trademark and trade name, and known by consumers of all ages. By also keeping in mind that the Respondent is only promoting the Complainant’s products from his website, it is clear that the disputed domain name was registered with the aim of gaining improper benefit from the reputation acquired by the Complainant over the years and it is quite clear that the Respondent was well aware of the Complainant. The Complainant cites Oki Data Americas, Inc. v. ASD, Inc. , WIPO Case No. D2001-0903 . The Respondent is not an authorized representative or dealer of the Complainant. By also taking into consideration that there is not any kind of disclaimer on the website that the website has no affiliation with the Complainant, it is also clear that the Respondent has the intention to create a perception that the disputed domain name belongs to the Complainant which also proves that the use of the disputed domain name is not a bona fide use. The indication in the “contact” section of the website at the disputed domain name which states that “the invoicing will be initiated via Gedik Pazarlama” is also an intentional unclear wording since this term does not reflect that there is no relation between the Respondent and the Complainant. These all indicate the bad faith motive behind the Respondent’s registration and use of the disputed domain name. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 15(a) of the Rules requires the Panel to decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. Under paragraph 4(a) of the Policy, the Complainant bears the burden of showing: (i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and (ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) that the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Panel finds that the disputed domain name <simfershop.com> is confusingly similar to the SIMFER trademark. The disputed domain name <simfershop.com> fully incorporates the trademark SIMFER. The only difference is the addition of generic term “shop”. In the Panel’s view, the addition of content-related generic terms like “shop” does not negate the confusing similarity between the Complainant’s trademark and the disputed domain name. Bearing in mind the notoriety of the mark SIMFER, the Panel concludes that the disputed domain name is likely to confuse Internet users into their believing that the disputed domain name is endorsed by the Complainant. It is well-established 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 typically be disregarded (See Rohde & Schwarz GmbH & Co. KG v. Pertshire Marketing, Ltd. , WIPO Case No. D2006-0762 ). Hence, the Panel is of the opinion that the disputed domain name is confusingly similar to the Complainant’s trademark SIMFER and therefore concludes that the first requirement under paragraph 4(a) of the Policy is fulfilled. 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 disputed 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 SIMFER trademark of the Complainant. It registered the disputed domain name because it would be recognized as such. Given the lack of disclaimer on the website at the disputed domain name, this use does not qualify as bona fide reseller activity under the principles set out in Oki Data Americas, Inc. v. ASD, Inc. , supra . 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 well aware of the reputation of the trademark SIMFER. The Panel believes that the Respondent, located in the same country as the Complainant, must have known of this trademark when registering the disputed domain name. This is in particular likely as the disputed domain name has been registered well after the Complainant’s trademark SIMFER has become recognized in Turkey. It is clear that the Respondent engaged in registering without any kind of authorization, on its behalf, domain names including several Turkish trademarks (<e-tefal.com>; <baymakstore.com>; <ufoteknoloji.com>), this and other evidence clearly proves that the disputed domain name has been registered in bad faith. As the website at the disputed domain name, which sells the Complainant’s products, does nothing to prevent the visitor from forming the false impression that it is connected with the Complainant in some fashion, the Panel finds this to be use in bad faith. Accordingly the Panel finds in favor of the Complainant on the third element 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, <simfershop.com> be transferred to the Complainant. Dilek Ustun Ekdial Sole Panelist Date: March 7, 2016
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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