The Domain Name and Registrar
The disputed domain name "sahibindenara.com" is registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on January 27, 2009. The Complainant initially listed "sahibinden.com" and "sahibindenara.com" for disputed domain names in its Complaint. On January 27, 2009, the Center transmitted by email to Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com a request for registrar verification in connection with the domain name "sahibindenara.com" and to Network Solutions, LLC in connection with the domain name "sahibinden.com". On January 31, 2009, Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com transmitted by email to the Center its verification response, confirming that the Respondent is listed as the registrant and providing the contact details. Having been informed by Network Solutions, LLC on January 27, 2009 that the registrant of the domain name "sahibinden.com" is the Complainant, the Center sent an email communication to the Complainant, notifying that the Complaint was administratively deficient. In response, the Complainant filed an amendment to the Complaint on February 4, 2009.
The Center verified that the Complaint together with the amendment to 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceeding commenced on February 11, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was March 3, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on March 4, 2009.
The Center appointed Dilek Ustun as the sole panelist in this matter on March 10, 2009. 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.
The Complainant owns and runs an e-commerce web portal from the domain name "sahibinden.com" which is a Turkish online classified advertising portal. The portal offers people stored and free of charge listings to communicate with the prospective buyers of their goods and services.
The disputed domain name was first registered on October 20, 2008 (as indicated in the "creation date" in the WhoIs record).
The disputed domain name resolves to a webpage, which is very similar to the Complainant's web portal at "www.sahibinden.com".
The Complainant makes the assertions set out in paragraph 4(a) of the Policy. These are summarized as follows:
The Complainant asserts that the disputed domain name is confusingly similar to its SAHIBINDEN mark.
The Complainant asserts that the Respondent has no rights or legitimate interests in the disputed domain name. The Complainant's trademark is distinctive and well-known, and therefore it can be inferred that the Respondent has sought to profit from the goodwill in this mark.
The Complainant asserts that the disputed domain name was registered and has been used in bad faith.
The Respondent did not reply to the Complainant's contentions.
Discussion and Findings
A. Identical or Confusingly Similar
This Complaint is based on the SAHIBINDEN trademark which is a registered trademark of the Complainant.
According to the Complaint, the Complainant has been using the trademark SAHIBINDEN since 1999. The registration certificate which was annexed by the representative of the Complainant shows that the trademark SAHIBINDEN is registered in the name of SAHİBİNDEN BİLGİ TEKNOLOJİLERİ PAZARLAMA VE TİCARET A.Ş. on May 30, 2007. The Complainant in this administrative proceeding is TANER AKSOY who is chairman of SAHİBİNDEN BİLGİ TEKNOLOJİLERİ PAZARLAMA VE TİCARET A.Ş. Therefore, the Panel accepts the Complainant's trademark rights.
In addition, the Complainant may rely on the distinctiveness of its mark in Turkey.
Consequently, the Panel finds that the disputed domain name "sahibindenara.com", which fully incorporates the Complainant's trademark with only the addition of "ara", is confusingly similar to the trademark in which the Complainant has rights, and the Complainant has met the requirements of the first element under the Policy.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy sets out a number of circumstances which, without limitation, may be effective for a respondent to demonstrate that it has rights to, or legitimate interests in, a disputed domain name, for the purposes of paragraph 4(a)(ii) of the Policy. Those circumstances are:
(i) before any notice to [the respondent] of the dispute, use by [the respondent] of, or demonstrable preparations to use, the [disputed] domain name or a name corresponding to the [disputed] domain name in connection with a bona fide offering of goods or services; or
(ii) where [the respondent] (as an individual, business, or other organization) [has] been commonly known by the [disputed] domain name, even if [the respondent has] acquired no trademark or service mark rights; or
(iii) where [the respondent is] making a legitimate noncommercial or fair use of the [disputed] domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The Respondent did not reply to the Complainant's contentions.
There is no evidence in the record that the Respondent has been commonly known by the disputed domain name.
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 a right or legitimate interest in the disputed domain name. The Complainant showed that the Respondent has neither a license nor any other permission to use the disputed domain name.
The Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides a list of indicative circumstances that suggest bad faith registration. However, such list is not exhaustive, and a finding of bad faith depends on the circumstances of each case.
The Respondent's webpage under the disputed domain name "www.sahibindenara.com" which appears to be in the same business as the Complainant's website "www.sahibinden.com", which also corresponds to a registered trademark of the Complainant.
It is important for a finding of bad faith that the Respondent knew of the Complainant's trademark. In the Panel's view, the circumstances of this case support, on balance, an inference that the Respondent had such knowledge. When the Respondent registered the disputed domain name, it is most likely the Respondent, residing in Turkey, knew that SAHIBINDEN was the trademark of the Complainant. It appears that the Respondent registered the disputed domain name because it would be recognized as such.
The Panel, in accordance with previous decisions issued under the UDRP, is of the opinion that the likelihood of actual knowledge of the Complainant's trademark at the time of the registration of the disputed domain name may be considered as an indication of bad faith (see Parfums Christian Dior v. Javier Garcia Quintas and Christiandior.net, WIPO Case No. D2000-0226).
Another reason is that the Respondent by creating a likelihood of confusion with the Complainant's mark intended to attract for commercial gain, Internet users to its on-line location. Since "www.sahibinden.com" is a widely known and commonly used web portal in Turkey, users seeking to use that portal are most likely to be attracted to confusingly similar website with a similar purpose. Such use in the circumstances constitutes bad faith.
The Panel finds that the Complainant has established the third element of the Policy.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name "sahibindenara.com" be transferred to the Complainant.
Dated: March 24, 2009