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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Sabanci Holding A.S. v. Amadeus

Case No. D2006-0016

 

1. The Parties

The Complainant is Sabanci Holding A.S. of Istanbul, Turkey, represented by an external representative.

The Respondent is Amadeus of Turkey.

 

2. The Domain Name and Registrar

The disputed domain name <sabanci.biz> is registered with Direct Information Pvt Ltd d/b/a PublicDomainRegistry.com.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 6, 2006. On January 9, 2006, the Center transmitted by email to Direct Information Pvt Ltd d/b/a PublicDomainRegistry.com a request for registrar verification in connection with the domain name at issue. On January 10, 2006, Direct Information 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 for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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 proceedings commenced on January 12, 2006. In accordance with the Rules, paragraph 5(a), the due date for the Response was February 1, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 2, 2006.

The Center appointed Dilek Ustun as the sole panelist in this matter on February 8, 2006. 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 the parent company of Sabanci Group, a well-known Turkish company and one of the largest trading groups worldwide since 1967.

The Complainant is the owner of several trademark registrations consisting of or including the sign SABANCI such as Turkish trademark registration no. 170885 SABANCI of April 2, 1996, in Classes 35, 36, 38, 41 and 42; Turkish trademark registration no. 178400 SABANCI device mark of April 2, 1996, in Classes 35, 36, 38, 41 and 42, CTM registration no. 000262675 SABANCI of August  26, 1998, in Classes 35, 36, 38, 41 and 42; CTM registration no. 000263236 SABANCI device mark of November 26, 1998, in Classes 35, 36, 38, 41 and 42.

The Respondent registered the domain name <sabanci.biz> on April 17, 2005.

 

5. Parties’ Contentions

A. Complainant

The Complainant contends that the domain name is identical to the trademarks in which the Complainant owns rights.

The Complainant states that the Respondent has no rights or legitimate interest in respect of the disputed domain name.

With reference to rights or legitimate interests in respect of the disputed domain name, the Complainant states that the Respondent’s web site is displaying adult content with links to other pornographic web sites. The Complainant emphasizes that the Complainant’s name SABANCI is not a generic name that is being widely used and the Respondent cannot have rights in respect of the disputed domain name.

With reference to the circumstances evidencing bad faith, the Complainant indicates that the domain name <sabanci.biz> was registered in bad faith.

The Complainant further contends that the Respondent is also in breach of the terms of the Restrictions Dispute Resolution Policy (the “RDRP”) in that the domain name is not being or will not be used primarily for a bona fide business or commercial purpose.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

 

6. Discussion and Findings

According to paragraph 15(a) of the Rules: “A panel shall decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.” Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:

(i) that the domain name registered by the Respondent is identical or confusingly similar to a trademark or a service mark in which the Complainant has rights; and

(ii) that the Respondent has no rights or legitimate interests in respect of the domain name; and

(iii) that the domain name has been registered and is being used in bad faith.

6.1. Identical or Confusingly Similar

The Complainant has provided evidence of ownership of a number of national and regional trademark registrations consisting of or including the sign SABANCI.

The Panel finds that the disputed domain name is identical to the trademarks owned by the Complainant with the simple addition of the .biz suffix.

In view of the above, the Panel finds that the Complainant has proven that the disputed domain name is confusingly similar to the trademarks in which the Complainant has rights in accordance with paragraph 4(a)(i) of the Policy.

6.2. Rights or Legitimate Interests

The Complainant must show that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent may establish a right or legitimate interest in the disputed domain name by demonstrating, in accordance with paragraph 4(c) of the Policy, any of the following:

(a) that it has made preparations to use the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services prior to the dispute; or

(b) that it is commonly known by the domain name, even if it has not acquired any trademark rights; or

(c) that it intends to make a legitimate, non-commercial or fair use of the domain name without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark.

By not submitting a Response, the Respondent has failed to invoke any circumstance that could demonstrate, pursuant to paragraph 4(c) of the Policy, any rights or legitimate interests in the disputed domain name.

There is no relation, disclosed to the Panel, between the Respondent and the Complainant and the Respondent is not a licensee of the Complainant, nor has the Respondent otherwise obtained an authorization to use the Complainant’s trademarks and name under any circumstance.

The Panel therefore finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name, in accordance with paragraph 4(a)(ii) of the Policy.

6.3. Registered and Used in Bad Faith

For the purpose of paragraph 4(a)(iii) of the Policy, the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of the domain name in bad faith:

(i) circumstances indicating that the holder has registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of the Complainant, for valuable consideration in excess of the holder’s documented out-of-pocket costs directly related to the domain name; or

(ii) the holder has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the holder has engaged in a pattern of such conduct; or

(iii) the holder has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, the holder has intentionally attempted to attract, for commercial gain, Internet users to the holder’s website or other online location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the holder’s website or location or of a product or service on the holder’s website or location.

The Panel, in accordance with previous decisions issued under the Policy, is of the opinion that actual knowledge of the Complainant’s trademark at the time of the 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).

The situation is clear that the Respondent has not demonstrated any bona fide offering of goods and services using the disputed domain name. Nor has the Respondent shown that it has been known by the disputed domain name. Rather, the Respondent has registered the domain name having the Complainant and its trademark in mind and with the intention of profiting from the goodwill and reputation of the Complainant’s trademark for the Respondent’s own financial gain.

Clearly, too, the resolution of the Respondent’s website to a pornographic site, whatever the circumstances under which this occurred, is a tarnishment of the Complainant’s mark and ongoing evidence of bad faith.

In view of the above, the Panel finds that the Respondent has registered and used the domain name in bad faith, in accordance with paragraph 4(a)(iii) of the Policy.

The Panel notes that the Complaint was filed under the Policy. Therefore, the Panel will not assess whether the Respondent’s actions would also meet the requirements of the RDRP.

 

7. Decision

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 <sabanci.biz> be transferred to the Complainant.

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Dilek Ustun
Sole Panelist

Dated: February 22, 2006