Westmore · UDRP DecisionCemboyner.com
The Panel ordered transfer of <cemboyner.com>. It found the domain confusingly similar to the Complainant’s BOYNER trademark because adding the given name “Cem” did not avoid confusing similarity. The Complainant established a prima facie case that the Respondent lacked rights or legitimate interests, which the non-responding Respondent did not rebut. Given the Complainant’s reputation in Turkey, the Respondent’s location in Turkey, and the absence of any apparent legitimate connection or conceivable good-faith use, the Panel found registration and use in bad faith.
The timeline behind cemboyner.com
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
The case illustrates that a domain may remain confusingly similar where it incorporates a registered trademark and adds the given name of a prominent person associated with the trademark owner. It also shows that a panel may avoid deciding personal-name rights when the incorporated registered mark independently establishes standing. On bad faith, the Panel relied substantially on reputation, geographic proximity, inferred actual knowledge, and the absence of any apparent legitimate connection or conceivable good-faith use.
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 Boyner Büyük Mağazacılık Anonim Şirketi v. Deniz Bal, Bal Team Case No. D2018-0775 1. The Parties The Complainant is Boyner Büyük Mağazacılık Anonim Şirketi of Istanbul, Turkey, represented by Tellioğlu Kaşlıoğlu Hukuk Bürosu, Turkey. The Respondent is Deniz Bal, Bal Team of Istanbul, Turkey. 2. The Domain Name and Registrar The disputed domain name <cemboyner.com> is registered with Reg2C.com Inc. (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 6, 2018. On April 6, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 25, 2018, 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 28, 2018. In accordance with the Rules, paragraph 5, the due date for Response was June 17, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 19, 2018. The Center appointed Dilek Üstün Ekdial as the sole panelist in this matter on June 28, 2018. 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, Boyner Büyük Mağazacılık Anonim Şirketi is well-known company based in Istanbul, Turkey. The Complainant is a retail company, selling mainly textile products. Mr. Cem BOYNER is the owner and one of the shareholders of the Complainant company and also one of the most well-known businessman in Turkey. BOYNER is a registered trademark since 1988 before the Turkish Patent and Trademark Office. The Complainant has several trade/service mark registrations for the mark BOYNER nationally and internationally. “Boyner” is also the Complainant’s trade name. The disputed domain name <cemboyner.com> was registered on December 16, 2004. 5. Parties’ Contentions A. Complainant The Complainant contends that the disputed domain name is similar to its BOYNER Trademark. The Complainant also states that the Respondent lacks any rights or legitimate interests in respect to the disputed domain name and adds that the Respondent is not commonly known by the disputed domain name or by “BOYNER” and has never authorized the Respondent to use the BOYNER trademarks. So the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant argues that the Respondent has registered and is using the disputed domain name in bad faith. The Complainant submits that the Complainant’s marks are widely known, it was unlikely that the Respondent, at the time of registration of the disputed domain name or thereafter, was not aware that it was infringing the Complainant’s marks. The Complainant also claims that the Respondent is acting in bad faith by registering the disputed domain name in order to prevent the Complainant, the owner of the trademark from reflecting the mark in a corresponding 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 a 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 Complainant has demonstrated that it owns valid BOYNER trademarks, registered in Turkey and in other countries. These trademarks are also reflected through registration and/or use of the domain name <boyner.com.tr> by the Complainant. The disputed domain name <cemboyner.com> contains the Complainant’s widely known trademark BOYNER and its owner’s given name. . The Complainant does not possess any registration of a trademark that might protect the name “Cem Boyner”. WIPO Overview of WIPO Panel Views on Selected UDRP Questions , Third Edition (“WIPO Overview 3.0”), section 1.5.2 . provides that “The UDRP does not explicitly provide standing for personal names which are not registered or otherwise protected as trademarks. In situations however where a personal name is being used as a trademark-like identifier in trade or commerce, the complainant may be able to establish unregistered or common law rights in that name for purposes of standing to file a UDRP case where the name in question is used in commerce as a distinctive identifier of the complainant’s goods or services.” The Panel needs not consider the above however. The Complaint has been filed by the company Boyner Büyük Mağazacılık Anonim Şirketi which has valid trademark rights to BOYNER. The addition of the given name Cem” does not avoid confusing similarity. Accordingly, the Panel finds that the disputed domain name is confusingly similar to the trademark BOYNER in which the Complainant has rights, satisfying the condition of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests The Respondent has not provided any evidence of the type specified in paragraph 4(c) of the Policy, or any other circumstances giving rise to rights or legitimate interests in the disputed domain name. It is clear that the Respondent has not demonstrated any bona fide offering of goods and services by its using the disputed domain name. Nor has the Respondent shown that it has been commonly known by the disputed domain name. Rather, the evidence of the Complainant suggests that the Respondent has used the disputed domain name in an attempt to trade off the goodwill associated with the Complainant’s trademark. The Complainant also submitted that the Respondent has neither a license nor any other permission to use the Complainant’s trademark in the disputed domain name or otherwise. The Panel finds that the Complainant has made out a prima facie case that the Respondent lacks rights or legitimate interests, and the Respondent has failed to demonstrate such rights or legitimate interests. Accordingly, the Complainant has established paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith Noting that the Complainant is a well-known company in Turkey where the Respondent is also located, the Panel is of the opinion that when the Respondent registered the disputed domain name it knew that BOYNER was the trademark of the Complainant, and that the Respondent registered the disputed domain name in bad faith. In accordance with previous UDRP decisions issued under the Policy, the Respondent’s actual knowledge of the Complainant’s trademark at the time of registration of the disputed domain name is to be considered an inference of bad faith (see Parfums Christian Dior v. Javier Garcia Quintas and Christiandior.net , WIPO Case No. D2000-0226 ). There is no suggestion that the Respondent had any intention of legitimate use, that it would enjoy a legitimate connection to the disputed domain name or that there would be conceivable good faith use for the disputed domain name. After examining all the 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 element 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 <cemboyner.com> be transferred to the Complainant. Dilek Üstün Ekdial Sole Panelist Date: July 12, 2018
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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