Westmore · UDRP DecisionMutlumakarna.com
The Panel ordered transfer of <mutlumakarna.com>. It found the domain confusingly similar to the Complainant’s MUTLU trademark because it combined the mark with “makarna,” the Turkish word for pasta and part of the Complainant’s trade name for its pasta business. The Complainant established an unrebutted prima facie case that the Respondent lacked rights or legitimate interests. The Panel further found that the domain was registered primarily for sale to the Complainant or a competitor for consideration exceeding the Respondent’s out-of-pocket costs, constituting bad faith under paragraph 4(b)(i) of the Policy.
The timeline behind mutlumakarna.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 mutlumakarna.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The case illustrates a straightforward application of the UDRP where a trademark is combined with a dictionary term that directly identifies the complainant’s principal product and trade name, while the resulting domain is offered for sale. The related-product term strengthened rather than diminished the association with the Complainant, and the unrebutted sale evidence supported bad faith under paragraph 4(b)(i).
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 Mutlu Makarnacılık Sanayi Ve Ticaret Anonim Şirketi v. Park HyungJin Case No. D2016-1231 1. The Parties The Complainant is Mutlu Makarnacılık Sanayi Ve Ticaret Anonim Şirketi of Gaziantep, Turkey, represented by Turan&Turan, Turkey. The Respondent is Park HyungJin of Gimhae-Si, Republic of Korea. 2. The Domain Name and Registrar The disputed domain name <mutlumakarna.com> is registered with Moniker Online Services, LLC (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 16, 2016. On June 17, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 20, 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 July 4, 2016. In accordance with the Rules, paragraph 5, the due date for Response was July 24, 2016. The Respondent did not submit any response. 1 Accordingly, the Center notified the Respondent’s default on July 25, 2016. The Center appointed Tobias Zuberbühler as the sole panelist in this matter on August 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 large company in the food sector of Turkey, producing mainly pasta. The Complainant was established in 1972 and is the owner of the Turkish trademarks MUTLU No. 94929, registered on December 31, 1996 in class 30 and MUTLULUK TADINDA MUTLU No. 2010/76249, registered on April 24, 2012 in class 30. The Complainant owns the domain name <mutlumakarna.com.tr>. The corresponding domain name was registered by the Complainant on October 31, 2001. The Respondent has registered the disputed domain name on November 27, 2012. The disputed domain name is linked to a parking site including the following notification: “The owner of mutlumakarna.com is offering the disputed domain name for sale for an asking price of 3900 EUR”. 5. Parties’ Contentions A. Complainant In summary, the Complainant contends the following: Due to the fact that the disputed domain name includes the registered marks of the Complainant, there is a high risk of confusion and association. The addition of the generic Top-Level Domain “.com” does not eliminate the risk of confusion and similarity. The Complainant has not provided the Respondent with any license or any other permission to use the Complainant’s registered marks in any domain name. Moreover, the Complainant has the right to control how its marks and names resembling its brand are used on the Internet by third parties. Furthermore, “mutlu” is a Turkish word which means “happy”, and “makarna” is a Turkish word for pasta. The Respondent has neither been operating in the pasta business, nor does he have any operations in Turkey or directed at the Turkish market. Therefore, the Respondent has no legal rights to use the disputed domain name. The disputed domain name has been registered and is being used by the Respondent in bad faith, with the aim of preventing the Complainant from reflecting its brand in the disputed domain name and directing Internet users to his own website where the disputed domain name is offered for sale for EUR 3,900. The Respondent is thus attempting to gain profit via a parking site and offers the disputed domain name for sale. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar The disputed domain names consist of the Complainant’s trademark MUTLU and the suffix “makarna” (the Turkish word for pasta). According to the consensus view of UDRP panels, the addition of dictionary terms such as “pasta” to a trademark in a domain name is normally insufficient in itself to avoid a finding of confusing similarity (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions , Second Edition (“WIPO Overview 2.0”), paragraph 1.9 ). This is all the more true here since “Mutlu Makarna” is the Complainant’s trade name for its pasta business. The Complainant has thus fulfilled paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests There are no indications before the Panel of any rights or legitimate interests of the Respondent in respect of the disputed domain name. Based on the Complainant’s credible contentions, the Panel finds that the Complainant, having made out a prima facie case which remains unrebutted by the Respondent, has fulfilled the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith Considering the factual background of the dispute as set forth above, it is evident that the disputed domain name has been registered by the Respondent primarily for the purpose of selling it to the Complainant or a competitor of the Complainant, for valuable consideration in excess of the Respondent’s out-of-pocket costs directly related to the disputed domain name. Such conduct constitutes evidence of registration and use in bad faith and fulfils the requirements of paragraph 4(b)(i) of the Policy. Accordingly, the Complainant has also satisfied 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 <mutlumakarna.com> be transferred to the Complainant. Tobias Zuberbühler Sole Panelist Date: August 17, 2016 1 On July 4, 2016, however, the Complainant submitted an email communication sent by the Respondent dated July 1, 2016, in which the latter states that he is open to negotiations to sell the disputed domain name to the Complainant.
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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