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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Cebsan Yangin Sondurme Cihazlari Sanayi Ve Ticaret Limited Sirketi v. Melike Basarkan and Halil Ozer, Ebsan Hirdavat Edevat

Case No. D2006-1505

 

1. The Parties

The Complainant is Cebsan Yangin Sondurme Cihazlari Sanayi Ve Ticaret Limited Sirketi, of Tesvikiye-Istambul, Turkey, represented by Abdurrahim Ayaz, Turkey.

The Respondent is Melike Basarkan and Halil Ozer Ebsan Hirdavat Edevat, of Turkey.

 

2. The Domain Names and Registrar

The disputed domain names <cebsan.com>, <cebsan.net>, and <cebsan.org> are registered with Stargate.com.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 20, 2006. On November 27, 2006, the Center transmitted by email to Stargate.com a request for registrar verification in connection with the domain names at issue. On November 29, 2006, Stargate.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 December 19, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was January 8, 2007. The Response was filed with the Center on January 3, 2007. The Complainant submitted a supplemental filing on January 24, 2007. The reply to the Complainant’s supplemental filing was submitted on January 29, 2007.

The Center appointed Nasser A. Khasawneh as the sole panelist in this matter on January 15, 2007. 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 Cebsan Yangin Sondurme Cihazlari Sanayi Ve Ticaret Limited Sirketi, a Turkish company, which produces and fills extinguishers’ equipment and sells fire fighting equipments.

The Complainant owns the trademark CEBSAN with logo registered with the Turkish Patent Office for Class No.9 on February 21, 1991 (Trademark registration No. 124613). The trademark protection expired, as it appears from the submitted certificate, on February 21, 2001.

The Complainant uses the word “cebsan” as part of the trade name of the company in his invoices and other corporate / advertising documents, as is evident from the documents submitted by both the Complainant and the Respondent. The Complainant uses the domain name <cebsan.com.tr> as the official website of its company.

On April 27, 2001, the Respondent registered the domain name <cebsan.com>. The current records of the registrar show that the website is owned by Ebsan Hirdavat Edevat. On April 25, 2005, the Respondent registered both domain names <cebsan.net> and <cebsan.org>. The Respondent confirmed that it has full control over the domain names.

When the Panel viewed the websites at the disputed domain names, <cebsan.com> was found to be operational with a direct link to the blog of the Respondent. The domain names <cebsan.net> and <cebsan.org>, on the other hand, were not operational.

 

5. Parties’ Contentions

A. Complainant

The Complainant bases its allegations on the following grounds:

1. The domain names are identical to a trademark in which the Complainant has rights:

The Complainant relies on the factual backgrounds stated above (inter alia, trademark registration; use of “cebsan” as a trade name; use of the domain name <cebsan.com.tr> as the official website of the company).

2. The Complainant contends that the Respondent has no rights or legitimate interests in respect to the domain names:

a. The Complainant claims that it has not licensed nor permitted in any was the use of the trademark CEBSAN or any domain name including this trademark by the Respondent. The Complainant’s rights in the trademark, of which the Respondent is aware, precede the Respondent’s registrations of the domain names.

b. The Complainant further contends that the domain names in question are not marks by which the Respondent is commonly known, and that the Respondent was not granted a license or permission by the rights-holder to use the trademark.

c. The Complainant claims that the registration of the domain name <cebsan.com> was initially made in 2001 on its behalf and upon its instructions by Mr. Mustafa Ozgu Sarac, who held the position of IT manager at the time. The Complainant alleges that, prior to his resignation, Mr. Sarac changed the registrant information of the disputed domain name <cebsan.com> and simultaneously registered the other disputed domain names <cebsan.net> and <cebsan.org>.

3. Respondent registered and used the domain names in bad faith:

The Complainant offers the following arguments to support its allegation in this regard:

a. The Respondent’s use of the domain name <cebsan.com> for personal and non-commercial purposes which include the display of insults and inappropriate content reveals his intention to disturb the business of the Complainant and thus his bad faith.

b. The domain names <cebsan.org> and <cebsan.net> are currently inactive. The Complainant refers to prior WIPO UDRP decisions confirming that the maintenance of inactive domain names can constitute bad faith.

c. The Complainant claims that “cebsan” is an unusual made-up word and the reason of use by the Respondent is to attract Internet users to an inappropriate site which results in tarnishing the Complainant’s reputation.

d. The Complainant asserts that the Respondent has registered the domain names with the intention to sell its rights to the Complainant later.

e. The Respondent’s use of false contact details is another proof of bad faith.

f. Circumstances to prove bad faith as per paragraph 4(b) of the Policy are not exhaustive. According to the Complainant, a pattern of registering trade names of third parties though not mentioned expressly by this article can constitute a proof of bad faith.

B. Respondent

The Respondent identified himself as Halil Cebrail Ozer and the owner of the disputed domain names.

The principal contentions of the Respondent are as follows:

a. The Respondent has not tried to hide his contact information and the change of email address is due to avoiding spam issues.

b. The Complainant is not known by the trade name “cebsan” per se, but is exclusively operating under Cebsan Yangin Ltd.

c. The Respondent initially confirms that he has not referenced his domain names on any search engine nor he intends to use the disputed domain names for commercial purposes.

d. The Respondent provides examples of Turkish companies using full names of companies for their official websites.

e. The Respondent claims that the Complainant has used the domain name <cebsan.co.tr> as the official website of the company for years and thus he contests their right to claim interests in the disputed domain names now.

f. The Respondent justifies his rights in the name “cebsan” by claiming that he owns a shop called Cebsan Hobby Markets since 2000. The word “cebsan” represents, according to the Respondent, the first three letters of his and his son’s name and the appendix “san”, commonly used by Turkish companies.

g. The Respondent defines the content of the website for the moment as relating personal stories and sharing videos but expressly states that the domain names will soon be used to promote for his business which is selling home hobby materials.

h. The Respondent provides examples from prior WIPO UDRP decisions related to generic word trademarks basing his allegations on “cebsan” being a generic word.

 

6. Discussion and Findings

First of all, before reviewing the substantive matters, the Panel determined whether or not, from a procedural perspective, it should consider the statements made in the Complainant’s supplemental filing and Respondent’s reply to the Complainant’s supplemental filing. The Panel notes that no express provision is made in the Rules for Supplemental Filings by either party, except in response to a deficiency notification or if requested by the Center or the Administrative Panel. However, bearing in mind the need for procedural efficiency and based on its discretionary power in accepting supplemental filing, the Panel has decided not to take into consideration the response of the Complainant to the Respondent’s allegations. The Panel notes that after briefly reviewing the additional input of the Complainant, the Panel did not believe that it contained significantly new information in relation to the initial Complaint and thus the Panel decided that it was not necessary to seek further input from the Respondent. The further submission by Respondent which was not requested by the Panel will therefore not be taken into account.

A. Identical or Confusingly Similar

According to paragraph 4(a)(i) of the Policy, the Complainant must establish its rights in a trademark in which it has rights and that the disputed domain names are identical or confusingly similar to its trademark.

The Complainant has established its rights in the trademark CEBSAN by providing a copy of the certificate of registration No. 124613 from the Turkish Patent Office. The Panel notes in the certificate, provided in the Turkish language, that the trademark protection which started on February 21, 1991 expired in 2001. No proof of renewal has been provided by the Complainant. However, the Complainant and the Respondent have both provided corporate and financial documents revealing the continuous use of the trademark CEBSAN in association with the Complainant’s company up to 2006.

It is undisputed and accepted that paragraph 4(a)(i) of the Policy refers merely to “a trademark or service mark” in which the Complainant has rights and does not expressly limit the application of the Policy to a registered mark or service mark. In addition, there is a consensus among WIPO panels that the Policy does not distinguish between registered and unregistered trademarks and service marks in the context of abusive registration of domain names (Imperial College v. Christophe Dessimoz, WIPO Case No. D2004-0322; The British Broadcasting Corporation v. Jaime Renteria, WIPO Case No. D2000-0050).

Accordingly, the Panel believes that, since the Complainant and the Respondent have provided documentation revealing the use of the trademark in association with the Complainant’s business for the period following the expiration until the date of filing of the Complaint, the apparent expiry of the trademark registration is not material in relation to this dispute. Consequently, the Panel finds that the Complainant has provided sufficient grounds to establish that it holds rights in the trademark CEBSAN.

The disputed domain names contain the word “cebsan” with no other suffixes or additions other than “com”, “net” or “org”. The word “cebsan” is a distinctive word and does not constitute a common word in the Turkish language or other relevant languages. It is the Panel’s view, which reflects that of various other Panels in previous WIPO UDRP decisions, that the addition of such suffixes does not add any distinguishing feature to the disputed domain names. The Generic Top Level Domains (gTLDs) only serve to identify the nature of the domain name address and do not affect a finding of identity or confusing similarity under this test of the Policy.

Consequently, the Panel finds that the Complainant has successfully satisfied the first test under the Policy.

B. Rights or Legitimate Interests

The Panel does not find in the facts and circumstances of the case any elements which can establish a legitimate right or interest for the Respondent in the disputed domain names. The Complainant has established rights in the trademark CEBSAN as evidenced by the facts and the documents provided in this case. The Respondent does not have any authorized relationship or agreement with the Complainant’s business, neither was it given an authorization or permit to use the trademark CEBSAN as part of the disputed domain names.

Furthermore, upon reviewing paragraph 4(c)(i) of the Policy which provides a non-exhaustive list of circumstances that can constitute proof of rights or legitimate interests in the disputed domain names, the Panel found that none of these are applicable to the case at hand:

(i) Before any notice of the dispute, the Respondent used the domain name in connection with a bona fide offering of goods or services:

The disputed domain names <cebsan.net> and <cebsan.org> are not operational, as confirmed to the Panel when it tried to access the sites of these domain names.

The disputed domain name <cebsan.com> is re-directed to a blog by the Respondent, where it apparently relates personal experiences and shares videos, as per the claims in the Response.

The Respondent asserts its intention to use the disputed domain names in the future to offer products and services in relation to its business but does not provide any proof of having started the latter prior to this dispute as required by paragraph 4(c)(i) of the Policy.

(ii) Respondent has been commonly known by the domain name:

The Respondent does not provide any proof of the use of “cebsan” in association with its business as a small shop selling “home hobby materials” as per the claims in the Response.

The Panel does not find any grounds for an association between the Respondent’s business name and the disputed domain names which may indicate that the Respondent has been commonly known by the name “cebsan” or a similar name.

(iii) Respondent is making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain without intent to misleading divert consumers or to tarnish the trademark of the complainant:

The disputed domain names <cebsan.net> and <cebsan.org> are not currently in use and appeared to contain no archive website, and there is no evidence of non-commercial or fair use. The disputed domain name <cebsan.com> is currently redireted by the Respondent to a blog apparently for relating and sharing personal information. While this might constitute a legitimate non-commercial or fair use of the domain name <cebsan.com> without intent to mislead or divert Internet users, the facts as established by the Complainant and the Respondent lead the Panel to the contrary conclusion.

The Respondent has expressly stated in the response that it would be using the disputed domain names to promote its business and products as soon as an agreement is reached with a web designer. In fact, the Respondent states in the response that “Our little shop name is everybody know cebsan hobby markets since 2000”, and he follows on page 6: “When we agreement cheaper web designer, we broadcast my shop’s web pages, about home hobby materials and links to my free pages”. This acknowledgment by the Respondent is not consistent with claims related to non-commercial or fair use of the domain name at issue.

Based on the above, the Panel finds it is not necessary to make a finding on the Complainant’s claim as to the “degrading” content of the domain name <cebsan.com> as the Respondent has admitted this content to be temporary.

Nevertheless, to avoid any doubt in this regard, the Panel has reviewed briefly the content of the domain name <cebsan.com>. The quick review indicated the existence of sexually explicit content (ex: entry of October 31, 2006 entitled AMME HİZMETİ 2 FİKRA) as alleged by the Complainant. The Panel believes that such content might tarnish the trademark of the Complainant by creating a false association with what some may consider to be inappropriate content.

Consequently, the Panel concludes that the Respondent does not have any rights or legitimate interests in the disputed domain names.

C. Registered and Used in Bad Faith

In regard to the disputed domain names <cebsan.net> and <cebsan.org>, it is not disputed by either Party that these are not in active use by the Respondent. This was verified by the Panel at the time of the preparation of the decision

Passive holding is defined as the lack of active use of the domain name and it has been held in various cases to constitute an indicator of bad faith.

The Panel therefore notes the lack of use of the disputed domain names <cebsan.net> and <cebsan.org> and will proceed with the analysis of the other factors in this case.

The domain name <cebsan.com> is redirected by the Respondent to a blog to publish personal content which has been identified in some instances, based on the brief review by the Panel, as potentially inappropriate, at least if seen in relation to the business of the Complainant.

The Panel examined the circumstances of the registration of the domain name <cebsan.com> as these were highlighted at various instances by the Complainant. The Complainant alleges that its former IT manager has, prior to his resignation, simultaneously changed the details of the owner of the disputed domain name <cebsan.com> and registered the other two domain names <cebsan.net> and <cebsan.org>.

These factual findings have been checked by the Panel based on the Whois registrar records which reveal that:

- All these disputed domain names have the same email address under the contact address;

- Both <cebsan.net> and <cebsan.org> were registered on March 26, 2006;

- The Panel has reviewed the history of ownership of the disputed domain names as displayed at the time of preparation of this decision on the website “http://web.archive.org”. The search indicated that the disputed domain name <cebsan.com> was used to post the name and contact details of the Complainant, appearing as Cebsan Yangin Ltd, prior to 2005.

The above information leads the Panel to believe, on a balance of probability and as alleged by the Complainant, that there is a connection between the former IT manager of the Complainant and the Respondent, the current owner of the disputed domain names. This belief was consolidated by the documents provided by the Respondent in support of its response; the Respondent basically appears to have submitted internal corporate documents of the Complainant as part of its response. The Respondent admits obtaining these through the former General Manager of the Complainant who has signed these documents. The Panel examined the documents in question and the majority showed expressly the signature of the named Mr. Sarac, the former IT manager of the Complainant (as per its allegations in the Complaint).

Accordingly, while the precise nature of any relationships between the former IT manager of the Complainant and the Respondent is not clear from the evidence available, the Panel concludes that the circumstances of this case offer enough grounds to conclude that the registration/ transfer of the disputed domain names is most likely to have been made by or in collaboration with the former IT manager of the Complainant who is aware of the rights of the Complainant in the disputed domain names.

The Panel believes based on the foregoing discussions that it is likely that the Respondent has registered the disputed domain names primarily with the intention of attracting Internet users to its websites by creating a likelihood of confusion with the Complainant’s mark as to the source and affiliation of its website.

In addition to potentially causing disruption to the Complainant’s business by creating false association with its trademark and the content of its website, the Respondent expressed its intention to use the disputed domain name to promote his products, thereby potentially soliciting commercial gain.

In brief, the Panel’s review of the facts under the Policy’s third test focused on the following key factors: the likely connection of the Respondent with the former IT manager of the Complainant, the use of inappropriate content on the site of the disputed domain name <cebsan.com>, the intention to further exploit the non-active domain names <cebsan.net> and <cebsan.org> for the promotion of its business, and the fact that the Respondent managed to obtain internal documentation regarding the Complainant.

Based on all these factors, the Panel concludes that the third test under the Policy has been successfully met in this case.

 

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 names <cebsan.com>, <cebsan.net>, and <cebsan.org> be transferred to the Complainant.

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Nasser A. Khasawneh
Sole Panelist

Dated: January 29, 2007