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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Petrol Ofisi A.S. v. Ozguc Bayraktar

Case No. D2006-0319

 

1. The Parties

The Complainant is Petrol Ofisi A.S., Maslak,Istanbul, Turkey, represented by Melda Gogus, Turkey.

The Respondent is Ozguc Bayraktar, Petro Lofisi Consultancy Services, Australia.

 

2. The Domain Names and Registrar

The disputed domain names <petrolofisi.com> and <petrolofisi.net> are registered with Stargate Holding Corp.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 14, 2006. On March 15, 2006, the Center transmitted by email to Stargate Holding Corp. a request for registrar verification in connection with the disputed domain names. On March 20, 2006, Stargate Holding Corp. 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 contacts. 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”), 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 March 22, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was April 11, 2006. The Response was filed with the Center on April 10, 2006.

The Center appointed Irina V. Savelieva as the sole panelist in this matter on April 26, 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, a Turkish company, registered the trademark PETROL OFISI in practically all classes of goods and services on October 14, 1990, in the territory of Turkey.

The Complainant has almost 4,000 petrol service stations in Turkey, as well as plants, terminals and nationwide marketing network.

The disputed domain names <petrolofisi.com> and <petrolofisi.net> were registered by the Respondent on November 18, 2001.

The Respondent applied for trademark registration of PETRO LOFISI for class 35 of services in Australia on February 22, 2006.

 

5. Parties’ Contentions

A. Complainant

The disputed domain names <petrolofisi.com> and <petrolofisi.net> are identical to the trademark of the Complainant.

The trademark PETROL OFISI was registered by Petrol Ofisi A. S. initially on November 14, 1990, through T.C. Tьrk Patent Enstitьsь and then renewed on November 14, 2000, for a period of 10 years (Annex 3 to the Complaint).

The Respondent initially had no rights in respect to the disputed domain names and used the disputed domain names in bad faith by announcing that “the site is for sale with a price of 175,000 USD”. A copy of the printout of the previous version of the website “www.petrolofisi.com” is provided (Annex 4 to the Complaint).

After contact by the Complainant the Respondent renewed the content of the website to change it into the website of a consulting company named Petro Lofisi Consultancy Services, established in Australia with registration number BN98200149. The Respondent also updated the registration information of both disputed domain names to include the name Petro Lofisi Consultancy Services on March 1, 2006, and February 23, 2006 respectively with Stargate Holdings Corp.

Currently, the content of the website has been changed creating a confusion with Petrol Ofisi A.Ş.’s corporate trademark. Copies of the registration information with update dates from InterNIC whois search results are provided (Annex 5 to the Complaint).

B. Respondent

Petro Lofisi Consultancy Services is a consultancy services company which is registered as Australian Business Number (ABN) 44946483095, located in Jannali, Sydney, NSW (New South Wales), Australia. The websites of the company are “www.petrolofisi.com.au” and “www.petrolofisi.com” (Annex 1 to the Response).

The Respondent has a registered business name PETRO LOFISI with business name registration number BN98200149 in the NSW Office of Fair Trading valid until February 2009 (Annex 2 to the Response).

The Respondent has applied for registration of the trademark PETRO LOFISI, registration number 1100282, in IP Australia Patents-TradeMarks-Designs in Class 35 (Annex 3 to the Response).

Therefore, the situation may be shown as the following:

Complainant: Respondent:
Petrol Ofisi A.S. Petro Lofisi Consultancy Services
Registered company in Turkey Registered company in Australia
Using “www.petrolofisi.com.tr” and “www.poas.com.tr” Using “www.petrolofisi.com.au” and “www.petrolofisi.com”

In Turkey the Complainant’s trademark registration includes both the words ‘Petrol Ofisi’ and logo. The Respondent has never used the Complainant’s logo.

The Complainant attempts to harass the Respondent and its business in Australia.

The Respondent did not send any offer to the Complainant to sell the disputed domain name <petrolofisi.com> and did not published any page as selling the disputed domain name.

 

6. Discussion and Findings

In accordance with Paragraph 4(a) of the Policy, in order to succeed in this proceeding and obtain the transfer of the domain names, the Complainant must prove that each of the three following elements are satisfied:

(i) disputed domain names are identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

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

(iii) the disputed domain names have been registered and are being used in bad faith.

Identical or Confusingly Similar

The Complainant has the trademark PETROL OFISI registered on November 14, 1990, through T.C. Tьrk Patent Enstitьsь and then renewed on November 14, 2000, for a period of 10 years (Annex 3 to the Complaint) for classes 1-42 of goods and services.

The Complainant’s trademark includes the words ‘Petrol Ofisi’ and an image incorporated into two letters, ‘P’ and ‘O’. The trademark is valid for the territory of Turkey.

The Complainant has registered the domain names <pertolofisi.com.tr> and <poas.com.tr> both linked to the Complainant’s website.

The Panel finds that the disputed domain names are confusingly similar to the Complainant’s registered trademark since they contain the word ‘Petrolofisi’, which is a part of the Complainant’s trademark.

The Panel finds the Complainant has satisfied its burden of proof under Paragraph 4(a)(i) of the Policy.

Rights or Legitimate Interests

The Complainant contends the Respondent has no rights or legitimate interests in the disputed domain names.

According to Paragraph 4(c) of the Policy the following circumstances, if proved, demonstrate a respondent’s rights or legitimate interests in a domain name:

(i) the respondent used or demonstrably prepared to use the domain name or a corresponding name in connection with a bona fide offering of goods or services prior to notice of the dispute; or

(ii) the respondent (as an individual, business, or other organization) has been commonly known by the domain name, even if it has not acquired trademark rights; or

(iii) the respondent is making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the complainant’s mark.

The Respondent may elect to show rights and legitimate interests, non-exhaustively, by producing proof under Paragraphs 4(c)(i-iii) of the Policy.

The Respondent argues that it has a registered business name and has applied for registration of the trademark PETRO LOFISI in Australia (Annexes 2 and 3 to the Response). The business name PETRO LOFISI was registered in New South Wales in Australia on February 22, 2006. Trademark registration for PETRO LOFISI in Australia was filed by the Respondent on line on February 22, 2006, for class 35 of services.

The Panel has no information as to when the Respondent’s company Petro Lofisi Consultancy Services was registered.

However, the company Petro Lofisi Consultancy Services with the address in Australia was recorded as the registrant for the disputed domain names sometime after February 2, 2006. According to the evidence presented by the Complainant, the disputed domain name registration details dated February 2, 2006, showed that on February 2, 2006, the registrant for the disputed domain name was Mr. Ozguc Bayraktar with an address in Istanbul (Annexes 1 and 2 to the Complaint).

According to the Complainant some exchange of e-mails between the Complainant and the Respondent did take place sometime in February 2006. The Complainant did not present the copies of such correspondence.

The Respondent claims that the company Petro Lofisi Consultancy Services is engaged in providing consultancy services with the use of the website “www.petrolofisi.com”.

The website consists basically of one webpage which contains a list of various broad areas of consultancy services both in the United States of America and Australia. It also indicates the name of Mr. Petro Lofisi as a contact person. According to the Complainant the content of the website “www.petrolofisi.com” was changed to announce that it was the website of the company Petro Lofisi Consultancy Services only after the Complainant made initial contact with the Respondent (Page 6 of the Complaint).

The Panel has reviewed the circumstances of this case and has reached the following conclusions:

Firstly, there is no evidence that before any notice of a dispute with the Complainant, the Respondent was using the disputed domain names for a legitimate offering of goods or services.

Secondly, there is no evidence that the company Petro Lofisi Consultancy Services existed prior to any notice of a dispute with the Complainant. In addition, there is no evidence of the existence of Mr. Petro Lofisi.

The Panel does not have any grounds to believe that the Respondent may be known under the name ‘Petro Lofisi’ before the Complainant first made contact with him. The fact that the initial Registrant’s administrative, billing, and technical contact were in the name of Mr. Ozguc Bayraktar with an address in Istanbul provides additional evidence of that.

The Respondent’s registration of the business name and trademark application for PETRO LOFISI were both done on February 22, 2006, after the Complainant contacted the Respondent.

Thus, the Panel does not find that the Respondent used the disputed domain names for a bona fide offering of services under Paragraph 4(c)(i) of the Policy. Rather, the Respondent is attempting to create a fiction of offering bone fide services through the webpage.

Equally, the Panel does not find evidence that the Respondent (as an individual, business, or other organization) has been commonly known by the domain names under Paragraph 4(c)(ii) of the Policy. Rather, the Respondent has attempted to create this circumstance after the Complainant contacted him.

The Panel finds the Respondent has failed to provide sufficient evidence of rights and legitimate interests.

Bad Faith

Paragraph 4(b) of the Policy provides that the following circumstances are deemed to be evidence that a respondent has registered and used a domain name in bad faith:

(i) circumstances indicating that the respondent 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 its documented out-of-pocket costs directly related to the domain name; or

(ii) the respondent 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 respondent has engaged in a pattern of such conduct; or

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

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

The Complainant contends the Respondent has violated the bad faith provisions of Paragraph 4(b)(i) of the Policy because it intends to sell the disputed domain name to the Complainant (who is the owner of the trademark) for much more than Respondent’s out-of-pocket costs directly related to the domain names. The Complainant presented evidence for that (Annex 4 to the Complaint).

The printout of the website “www.petrolofisi.com” dated February 7, 2006, shows that this domain name was for sale for USD 175.000. It also has a link to the email address “registerdomain@hotmail.com”. Another printout presented by the Complainant shows Mr. Samual Jackson in the United Kingdom as the registrant for the domain name <petrolofisi.com> and his address is not complete.

The Panel believes that the Respondent and other individuals linked to him attempted to sell the disputed domain names for a price far exceeding what the Respondent paid for them.

Thus, the Respondent is in violation of the bad faith provisions of the Policy in paragraph 4(b)(i), i.e., the Respondent registered the disputed domain name with the intention of selling it for far more than it paid for it.

The Panel does not interpret the Policy to mean that the mere offer for sale of a domain name for a substantial sum of money has to be considered an act of bad faith. According to the widely cited case Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003: “the requirement in paragraph 4(a)(iii) that the domain name has been registered and is being used in bad faith will be satisfied only if the Complainant proves that the registration was undertaken in bad faith and that the circumstances of the case are such that Respondent is continuing to act in bad faith.”

Firstly, the Panel finds that the Respondent has registered the disputed domain names in bad faith. The Respondent does not conduct any legitimate business activity using the disputed domain names. Given the Complainant’s trademark registration and business activity in Turkey it is not possible to conceive a circumstance in which the Respondent Mr. Ozguc Bayraktar who has or had the address in Istanbul could not know about the Complainant’s trademark and trade name.

The Panel further recalls that the Respondent registered the disputed domain names in April 2001. The Complainant and its trademark PETROL OFISI have been well known in Turkey since 1990.

Furthermore, regarding these facts, it is the Panel’s view that the Respondent set out to register the disputed domain names knowing that they were valuable and aware of the Complainant’s trademark interests in the domain names.

It is also not possible to conceive of a situation in which the Respondent would have been unaware of the Complainant’s trademark at the time of registration. These findings, together with the finding that the Respondent attempted to create rights or interests in the disputed domain names only after the Complainant contacted him, lead the Panel to conclude that the domain name <petadolex.com> has been registered and used by the Respondent in bad faith.

The Panel finds that the disputed domain names are being used in bad faith by the Respondent. The domain name <petrolofisi.com> does not resolve to any proper website or other on-line business presence. The <petrolofisi.com> web page is merely a homepage, which does not represent a proper business website.

The Panel finds the Complainant has shown the Respondent registered and is using the disputed domain names in bad faith.

 

7. Decision

The Administrative Panel decides that the Complainant has proven each of the three elements in Paragraph 4(a) of the Policy. In accordance with Paragraph 4(i) of the Policy and Paragraph 15 of the Rules, the Panel orders that the disputed domain names, <petrolofisi.com> and <petrolofisi.net>, be transferred to the Complainant.


Irina V. Savelieva
Sole Panelist

Dated: May 10, 2006

 

Источник информации: https://internet-law.ru/intlaw/udrp/2006/d2006-0319.html

 

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