Westmore · UDRP DecisionGarentogo.com
The Panel ordered transfer of <garentogo.com>. It found the domain confusingly similar to the Complainant’s Turkish GARENTA marks because it retained the distinctive letters “garent,” changed the final vowel, and added “go.” The Complainant established an unrebutted prima facie case that the Respondent lacked rights or legitimate interests. Bad faith was found from the Respondent’s apparent awareness of the earlier Turkish marks and the Panel’s characterization of the domain as targeted typosquatting intended to confuse or mislead Internet users. The Panel proceeded despite related Turkish court proceedings and a preliminary injunction blocking access to the associated website.
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The case illustrates a successful UDRP claim based on a close typographical variation of a mark plus a short generic term. It also shows that a panel may proceed to decision despite related national court proceedings where it considers the UDRP record sufficiently mature and sees no illegitimate prejudice to those proceedings.
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 Çelik Motor Ticaret A.Ş. v. Sibel Doğan Case No. D2016-0925 1. The Parties The Complainant is Çelik Motor Ticaret A.Ş. of Istanbul, Turkey, represented by Gün & Partners, Turkey. The Respondent is Sibel Doğan of Izmir, Turkey. 2. The Domain Name and Registrar The disputed domain name <garentogo.com> is registered with Realtime Register B.V. (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 9, 2016. On May 9, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 10, 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 May 11, 2016. In accordance with the Rules, paragraph 5, the due date for Response was May 31, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 1, 2016. The Center appointed Kaya Köklü as the sole panelist in this matter on June 3, 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 Complainant is a Turkish company operating a car rental under the brand GARENTA since 2013. It has more than 20 branches in Turkey. The Complainant is the owner of the Turkish trademark registrations No. 2013/63186 for GARENTA as a word mark, registered on July 19, 2013 and No. 2013/104426 for GARENTA as a figurative trademark, registered on December 20, 2013. The claimed protection covers in particular car rental services. The Complainant has also owned and operated the domain name <garenta.com.tr> since 2013. The Respondent is an individual from Turkey. The disputed domain name <garentogo.com> was registered on February 7, 2016. According to the provided evidence, the Complainant successfully brought legal action against the Respondent in Turkey. Upon a request by the Complainant, the Istanbul Civil Court of Intellectual and Industrial Property Rights rendered a preliminary injunction decision blocking access to the website linked to the disputed domain name. At the time of the decision, the disputed domain name did not resolve to an active website, probably due the above mentioned court decision. 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 the Complainant’s GARENTA trademark. Furthermore, the Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name. In particular, the Complainant states that the Complainant has never granted a permission or license to the Respondent to use its GARENTA trademark. The Complainant further alleges that the Respondent has never used and does not intend to use the disputed domain name in connection with a bona fide offering of goods and services. Finally, it is argued that the Respondent has registered and is using the disputed domain name in bad faith. The Complainant is of the opinion that the Respondent has registered and is using the disputed domain name to benefit from the reputation of the Complainant. B. Respondent The Respondent did not reply to the Complainant’s contentions. 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. Other Legal Proceedings Paragraph 18 of the Rules states that, in case of other legal proceedings between the Parties, it is the Panel’s discretion to decide whether to suspend or terminate the administrative proceedings or to proceed to a decision. In the present case, the Panel notes that the Turkish Industrial Property court issued a preliminary injunction against the Respondent blocking access to any website linked to the disputed domain name. The Panel believes that the Turkish Industrial Property court must have seen sufficient evidence for a trademark infringement, otherwise it would have not rendered such an elementary court order. Taking the circumstances of the present administrative proceedings into account, the Panel finds that the case is mature enough to render a decision under the Policy without creating any illegitimate prejudice as regards the court proceedings in Turkey. Therefore, the Panel believes that it is appropriate to proceed to a decision in compliance with paragraph 18(a) of the Policy. B. Identical or Confusingly Similar The Panel finds that the disputed domain name is confusingly similar to the GARENTA trademark of the Complainant. First, 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 various GARENTA trademarks in Turkey. The Panel further finds that the disputed domain name is confusingly similar to the Complainant’s GARENTA trademark. The first distinctive part of the disputed domain name, comprising the letters “garent”, is practically identical with the Complainant’s trademark. It is just the less distinctive end of the disputed domain name, which slightly differs by using another vowel (“o” instead of “a”) and the addition of the term “go”. In view of the Panel, this does not create a new distinctiveness of the disputed domain name in relation to the Complainant’s registered trademark GARENTA. In view of the above, the Panel is satisfied that the Complainant has met the requirements under paragraph 4(a)(i) of the Policy. C. Rights or Legitimate Interests The Panel further finds that the Respondent has not demonstrated any rights or legitimate interests in the disputed domain name. 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 lack of 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 of evidence shifts to the Respondent to show that it has rights or legitimate interests in the disputed domain name. 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 convincing argument to demonstrate a right or legitimate interest in the disputed domain name according to the Policy, paragraph 4(a)(ii) and 4(c). With its Complaint, the Complainant has provided uncontested prima facie evidence that the Respondent has no rights or legitimate interests in the disputed domain name. In the absence of a Response by the Respondent, there is no indication in the current record that the Respondent is commonly known by the disputed domain name. Furthermore, the Respondent has failed to demonstrate any of the other non-exclusive circumstances evidencing rights or legitimate interests under the Policy paragraph 4(c) or other evidence of rights or legitimate interests in the disputed domain name. In particular, the Respondent has failed to show that the disputed domain name has been or is intended to be used in connection with a bona fide offering of goods or services. Consequently, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy. D. Registered and Used in Bad Faith The Panel is further convinced that the Respondent has registered and is using the disputed domain name in bad faith. 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 for illegitimate purposes. The Panel is convinced that the Respondent must have been aware of the Complainant’s GARENTA trademark when it registered the disputed domain name in June 2016. At the date of registration of the disputed domain name, the Complainant’s GARENTA trademark was already registered and recognized in Turkey. The Panel further believes that the Respondent has chosen an obvious misspelling of the Complainant’s trademark as a domain name in combination with the term “go” in order to intentionally attract and mislead Internet users in their believing that the disputed domain name is somehow affiliated with the Complainant. Targeted typosquatting of this nature in combination with the addition of generic terms like “go” are, in the Panel’s view, compelling evidence of bad faith. 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, <garentogo.com> be transferred to the Complainant. Kaya Köklü Sole Panelist Date: June 17, 2016
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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