Westmore · UDRP DecisionGitti-gidiyor.com
The Panel ordered transfer of <gitti-gidiyor.com>. It found the domain confusingly similar to the Complainant’s GİTTİ GİDİYOR trademark because it incorporated the mark in its entirety, with only a hyphen added. The Complainant established a prima facie case that the Respondent lacked rights or legitimate interests, which the non-responding Respondent did not rebut. Bad faith was found from the well-known status and prior rights in the mark, the domain’s previous use for an e-commerce platform offering goods, and its later inactivity, which did not preclude a bad-faith finding.
The timeline behind gitti-gidiyor.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 gitti-gidiyor.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
This decision illustrates a straightforward hyphenated-mark case in which punctuation did not avoid confusing similarity. It is also significant for combining evidence of earlier competing commercial use with later inactivity: the Panel treated the former e-commerce operation as evidence of confusion-based commercial intent and applied passive-holding principles to the subsequent inactive state.
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 Gitti Gidiyor Bilgi Teknolojileri San. Ticaret Anonim Sirketi v. Necdet Saltek Case No. D2019-1906 1. The Parties The Complainant is Gitti Gidiyor Bilgi Teknolojileri San. Ticaret Anonim Sirketi, Turkey, represented by Çiğdemtekin Çakırca Arancı, Turkey. The Respondent is Necdet Saltek, Turkey. 2. The Domain Name and Registrar The disputed domain name <gitti-gidiyor.com> is registered with GoDaddy.com, LLC (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 6, 2019. On August 6, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On the same day, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on August 9, 2019, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on August 19, 2019. The Center verified that the Complaint together with the amended 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 August 21, 2019. In accordance with the Rules, paragraph 5, the due date for Response was September 10, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 11, 2019. The Center appointed Gökhan Gökçe as the sole panelist in this matter on September 16, 2019. 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 global e-commerce firm as Turkey’s first online marketplace and is a subsidiary of eBay Inc., which operates the world’s largest online marketplace, and the most widely used online marketplace in Turkey. The Complainant was founded in 2001 and acquired by eBay Inc. in 2011. The Complainant has 23 million registered users per month. The Complainant has registered more than 30 trademarks consisting of or including the term “gitti gidiyor” in Turkey in connection with online trading services and shopping, such as the trademark GİTTİ GİDİYOR with registration no. 2012 54214 and registered on August 26, 2013. The Complainant’s GİTTİ GİDİYOR trademark has been granted well-known trademark status by Turkish Patent and Trademark Office with no. T/03121. The Complainant also owns and operates various domain names which incorporate the GİTTİ GİDİYOR trademark, such as <gittigidiyor.com> which is actively used by the Complainant. The Complainant also registered the domain name <gittigidiyor.com.tr> in Turkey on June 14, 2004. The disputed domain name <gitti-gidiyor.com> was registered by the Respondent on August 3, 2018. The disputed domain name resolved to a website, resembling of an e-commerce platform, which offered a variety of goods for sale. The Panel visited the disputed domain name website on September 27, 2019, and determined that the disputed domain name is currently inactive, thus there was no content provided. 5. Parties’ Contentions A. Complainant The Complainant requests the transfer of the disputed domain name. The Complainant asserts that it is the registered owner of the GİTTİ GİDİYOR trademark and the disputed domain name is identical to the trademark. According to the Complainant, the inclusion of the hyphen does not distinguish the disputed domain name from the Complainant’s trademark. The Complainant maintains that the Respondent has no rights or legitimate interests in the disputed domain name because the Complainant has not authorized the Respondent’s use of the trademark and the Respondent’s use of the disputed domain name is not bona fide as the disputed domain name takes advantage of the Complainant’s fame and goodwill. As for bad faith registration and use, the Complainant argues that considering the popularity of the Complainant’s website, Respondent knew or, at least, should have known about the Complainant’s trademark and associated rights at the time the Respondent registered the disputed domain name and that the Respondent is using the disputed domain name to trade off on the Complainant’s popularity for the Respondent’s own commercial gain. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings According to paragraph 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. 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 a trademark 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 Complainant’s contentions. 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. See, section 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). It is further noted that the Panel has taken note of the WIPO Overview 3.0 and, where appropriate, will decide consistent with the WIPO Overview 3.0 . A. Identical or Confusingly Similar The Panel finds that the disputed domain name is identical to the Complainant’s trademark. The disputed domain name effectively incorporates the GİTTİ GİDİYOR mark in its entirety and the addition of the hypen does not prevent a finding of confusing similarity between the Complainant’s trademark and the disputed domain name. First, the Panel confirms that the Complainant has satisfied the threshold requirement of having trademark rights. As evidenced in the Complaint, the Complainant is the owner of various trademarks incorporating the term “gitti gidiyor” since 2012. The disputed domain name is <gitti-gidiyor.com>, of which the generic Top-Level Domain (“gTLD”) designation “.com” may in this case be disregarded in the determination of confusing similarity. What remains is “gitti-gidiyor”, which incorporates the entirety of the Complainant’s trademark GİTTİ GİDİYOR (in line with prior UDRP panels concerning the use of a gTLD within a disputed domain name, cf. V&S Vin & Sprit AB v. Ooar Supplies , WIPO Case No. D2004-0962 ; Google Inc. v. Nijat Hassanov , WIPO Case No. D2011-1054 ). In view of the above, the Panel is satisfied that the Complainant has met the requirements under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests The Panel further finds that in the absence of a Response, the Respondent has failed to demonstrate 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 in order to meet the requirements of paragraph 4(a)(ii) of the Policy. Document Technologies, Inc. v. International Electronic Communications Inc ., WIPO Case No. D2000-0270 . In the light of the evidence submitted by the Complainant, and the Panel’s researches, e.g. , trademark registration certificates, domain name registrations, etc. , it is clear to the Panel that the Complainant has earlier and lawful rights in the GİTTİ GİDİYOR trademark. Therefore, the Panel finds on the current record that the Complainant has proved rights in the GİTTİ GİDİYOR trademark and also established a prima facie case that the Respondent does not have rights or legitimate interests in the disputed domain name for the purposes of the Policy. The Complainant has not granted the Respondent any right or license to use the GİTTİ GİDİYOR trademark. Therefore, in the absence of any license or permission from the Complainant to use any of its trademarks or to apply for or use any domain name incorporating those trademarks, it is clear that no actual or contemplated bona fide or legitimate use of the disputed domain name could be claimed by the Respondent. Guerlain S.A. v. Peikang , WIPO Case No. D2000-0055 . The Panel visited the disputed domain name on September 27, 2019, and found that the disputed domain name does not resolve to a website. Therefore, the Panel finds that the Respondent is not making use of the disputed domain name in connection with a bona fide offering of goods or services or making a legitimate noncommercial or fair use of the disputed domain name. The requirements of 4(a)(ii) of the Policy are fulfilled and consequently the Panel finds in favor of the Complainant on the second element of the Policy. C. Registered and Used in Bad Faith The Panel finds that the Respondent must have been aware of the rights the Complainant has in the well-known Turkish trademark GİTTİ GİDİYOR and the value of said trademark at the time of the registration of the disputed domain name. It is obvious to this Panel that, by using the disputed domain name, the Respondent’s intention must have been to intentionally attempt to attract for commercial gain, Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website. Gitti Gidiyor Bilgi Teknolojileri Sanayi ve Ticaret Anonim Şirketi v. Domain Admin at whoisprotection.biz / TURGAY EBCİN , WIPO Case No. D2014-1390 . Given the reputation of the Complainant’s trademark – registration and use of which precede by far the registration of the disputed domain name – it is not conceivable that the Respondent did not have in mind the Complainant’s trademark when registering the disputed domain name. Such fact suggests that the disputed domain name was registered in bad faith (see WIPO Overview 3.0 , section 3.2.2 ). The disputed domain name previously resolved to an e-commerce platform offering variety of goods for sale, which constitutes the core business of the Complainant (Annex 8 to the Complaint). The latter ascertains; by using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on the Respondent’s website or location (see WIPO Overview 3.0 , section 3.1 ). When the Panel recently visited the disputed domain name, it resolved to an inactive page and the Respondent has not submitted any evidence or suggestion that he has any intention of using the disputed domain name for any purpose or legitimate activity consistent with good faith use. Section 3.3 of the WIPO Overview 3.0 states that the lack of active use of the domain name does not as such prevent a finding of bad faith. For these reasons, the Panel finds that the Complainant has established that the disputed domain name was registered and used in bad faith for the purpose 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 <gitti-gidiyor.com> be transferred to the Complainant. Gökhan Gökçe Sole Panelist Date: September 30, 2019
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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