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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Ipek Kagit Sanayi ve Ticaret Anonim Sirketi v. eMedia

Case No. D2008-1952

1. The Parties

The Complainant is Ipek Kagit Sanayi ve Ticaret Anonim Sirketi of Istanbul, Turkey represented by Yasin Beceni, Turkey.

The Respondent is eMedia of Seoul, Republic of Korea.

2. The Domain Name and Registrar

The disputed domain name <selpak.com> is registered with Dotster, Inc.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 19, 2008. On December 22, 2008, the Center transmitted by email to Dotster, Inc. a request for registrar verification in connection with the disputed domain name. On December 22, 2008, Dotster, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that 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 proceedings commenced on December 24, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was January 13, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 14, 2009.

The Center appointed Nasser A. Khasawneh as the sole panelist in this matter on January 26, 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.

4. Factual Background

The Complainant produces and exports a number of tissue, paper and other home products for daily use and was established in Turkey in 1969.

The Complainant’s official website is maintained at <selpak.com.tr> and the Complainant has held the SELPAK trademark since 1987. The Complainant has also registered the SELPAK mark in a number of other countries around the world as evidenced by Annex to the Complaint.

As evidenced by an email from the Registrar Dotster, Inc. and from a WhoIs search, the record for the disputed domain name of <selpak.com> was created on February 7, 2000 by the Respondent.

5. Parties’ Contentions

A. Complainant

In its Complaint and the accompanying Annexes, the Complainant has evidenced that it has used the trademark SELPAK in connection with its business and in the sale of tissue and paper products in both Turkey as well as internationally. Additionally, the Complainant has provided an English translation of a decree issued on March 24, 1998 by the Turkish Patent Institute declaring the Complainant’s trademark SELPAK a well-known trademark which has become associated locally and abroad with a certain reputation.

The Complainant begins arguing its case under paragraph 4 of the Policy by stating that the trademark on which this Complaint is based is SELPAK, which has been a registered trademark of the Complainant since 1987. The trademark SELPAK has been used by the Complainant for a number of products in its business, whether in Turkey, Europe, Asia or Africa. The Complainant argues that the disputed domain name <selpak.com> consists of the Complainant’s entire trademark and that the inclusion of the “.com” suffix is irrelevant. As a result the Complainant argues that the disputed domain name is identical to the SELPAK trademark.

In arguing that the Respondent has no rights or legitimate interests in the disputed domain name under paragraph 4(a)(ii) of the Policy, the Complainant argues that the Respondent is located in Republic of Korea and has shown no rights or legitimate interests in the disputed domain name. The Complainant further avers that the Respondent has failed to satisfy any of the circumstances specified under paragraph 4(c) of the Policy which would enable it to show that it has a right or legitimate interest in the disputed domain name.

The Complainant contends that the Respondent has not used the disputed domain name in connection with a bona fide offering of goods or services, as well as the fact that the Respondent is known as “eMedia Inc” and not associated with the Complainant’s trademark. Additionally the Complainant argues that there has been no legitimate non-commercial or fair use of the disputed domain name without intent for commercial gain.

In support of its arguments, the Complainant further notes that the landing page at <selpak.com> is comprised of links, many of which are identical to or relate to the Complainant’s trademark. The SELPAK mark is also not a commonly used or generic word where the Complainant does business. The Complainant notes that once the links are clicked on, the secondary web pages contain advertising links which are being used for commercial gain.

To establish the final element of its Complaint under the Policy, the Complainant contends that the Respondent offered to sell the disputed domain name for an amount exceeding its out of pocket costs to the Complainant after the Respondent was informed of the Complainant’s rights to the mark. The Complainant additionally notes that the Respondent has registered 1,234 domain names under eMedia and 8,289 domain names under the Respondent’s contact address.

The Complainant avers that bad faith registration and use is shown as the Respondent’s website resolves to a landing page with links showing the Complainant’s products and which is operating as pay-per-click advertising. The Complainant notes that the burden of determining if the registered domain name infringes upon another trademark is the Respondent’s obligation and that by doing even a simple search the Respondent could have realized the Complainant’s rights to the SELPAK trademark. Since the trademark is fairly unique, the disputed website opens to products belonging to the Complainant and is being operated for commercial gain, the Complainant argues that the Respondent has infringed on the Complainant’s trademark rights and is impairing the trademark’s good will and reputation. Such an infringement, argues the Complainant, constitutes bad faith.

B. Respondent

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

6. Discussion and Findings

Under the Rules, a panel is required to render its decision on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. (Rules, paragraph 15(a)).

Additionally, a complainant must establish each element of paragraph 4(a) of the Policy, which are as follows:

(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights;

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

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

The complainant must establish these elements regardless of whether the respondent replies to the complaint. The Vanguard Group, Inc. v. Lorna Kang, WIPO Case No. D2002-1064.

A. Identical or Confusingly Similar

In terms of the obligation under paragraph 4(a)(i), the Complainant has evidenced through the Annexes that it first registered the SELPAK trademark in 1987. Thereafter the Complainant also registered the SELPAK mark in a number of other locations outside Turkey, which have been provided in the Complainant’s Annex. The Complainant is also the registered owner of the domain name <selpak.com.tr>. The Complaint also evidences the fact that the Turkish Patent Institute has registered the Complainant’s trademark as “well known”. Therefore based on the evidence of registration as well as the scope of the Complainant’s business both in Turkey and the region, the Panel finds that the Complainant has acquired a certain reputation and goodwill with the SELPAK mark.

Presently the disputed domain name <selpak.com> wholly incorporates the Complainant’s trademark SELPAK. As a result of above this as well as the fact the Complainant has shown that they have rights to the trademark, the Panel finds that the disputed domain name <selpak.com> is identical to a trademark in which the Complainant has rights. As it has been widely held in a number of other cases, the use of the “.com” suffix is as an irrelevant distinction that does not alter the likelihood of confusing similarity. VAT Holding AG v. Vat.com, WIPO Case No. D2000-0607; Rolls-Royce PLC v. Hallofpain, WIPO Case No. D2000-1709. As a result the Panel will ignore the suffix and in light of the evidence finds that the disputed domain name is identical and confusingly similar to a trademark in which the Complainant has rights.

B. Rights or Legitimate Interests

Under paragraph 4(a)(ii) of the Policy, the Complainant is required to make a prima facie showing that the Respondent lacks rights or legitimate interests in <selpak.com>. Under the Policy, once that case has been made, the respondent must demonstrate that it has rights or legitimate interests in the disputed domain name. See Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455; Belupo d.d. v. WACHEM d.o.o, WIPO Case No. D2004-0110. Under paragraph 4(c) of the Policy, there is a non-exhaustive list of circumstances that the respondent may use to demonstrate that they possess rights or legitimate interests in a domain name. The absence of rights or legitimate interests can also be established if a complainant makes out a prima facie case and the respondent enters no response. Id., (citing De Agostini S.p.A. v. Marco Cialone, WIPO Case No. DTV2002-0005).

The Panel finds in this instance that the Complainant has sufficiently evidenced that they possess rights to the SELPAK trademark through both the Complaint and the accompanying Annexes. The SELPAK trademark was first registered by the Complainant in 1987 and a number of additional times thereafter both in Turkey and abroad. In time, the Complainant’s trademark SELPAK acquired a certain reputation and goodwill both in Turkey and internationally. The disputed domain name was not registered until February of 2000.

Additionally, the Complainant has not provided the Respondent with any license or authorization to utilize the SELPAK mark. Furthermore the Respondent, by failing to respond to the Complaint has failed to demonstrate that they were commonly known or associated with the disputed domain name or the SELPAK mark. The disputed domain name <selpak.com> itself consists of a primary landing page with links to a number of products, some of which include those similar to the Complainant. Additionally many of the links either represent or lead to pay-per-click links. Whether it was the intention of the Respondent or not, although in this case as discussed below the Panel finds that indeed this was the intention of the Respondent the disputed domain name is confusingly similar and has the effect of rerouting Internet traffic to the Respondent’s website where the user is presented with links to similar products as those of the Complainant. Such an act without authorization does not constitute a bona fide offering of goods or services. Playboy Enterprises v. Movie Name Company, WIPO Case No. D2001-1201.

Unlike in instances where the landing page contained links that were genuinely based on the generic value of a domain name and would not implicate the complainant’s trademarks (See National Trust for Historic Preservation v. Barry Preston, WIPO Case No. D2005-0424), the disputed domain name opens to a number of links which in some cases lead to similar products as those offered by the Complainant, some of which are offered by the Complainant’s competitors. In cases where the links were targeted to the trademark name and the products sold by the Complainant under that trademark were involved, such use would not constitute a fair or legitimate use. Asian World of Martial Arts Inc. v. Texas International Property Associates, WIPO Case No. D2007-1415; See also Microsoft Corporation v. Microsof.com aka Tarek Ahmed, WIPO Case No. D2000-0548.

For the Respondent to have a legitimate use of the disputed domain name under the Policy, such use must not infringe upon the Complainant’s trademark. See CHANEL, Inc. v. ESTCO TECHNOLOGY GROUP, WIPO Case No. D2000-0413. As the disputed domain name contains a number of references to the products of both the Complainant as well as competitors, there is clearly use which would negate rights or legitimate interests therein. Additionally as the landing page contains a number of pay-per-click links, the Respondent’s use of the disputed domain name was commercial in nature which neither constitutes a bona fide or legitimate fair use under the circumstances.

As a result the Panel finds that the Complainant has satisfied the requirements under paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

The final element that the Complainant must evidence is that the domain name was registered and is being used in bad faith. Paragraph 4(b) of the Policy provides a number of instances that constitute bad faith registration, however this list is not exhaustive. Additionally, a panel is also able to draw inferences about bad faith registration in light of the facts and circumstances of the case in determining whether the complainant has met its burden. Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003.

The Complainant has presented evidence indicating that the Respondent had purchased the disputed domain name for the purpose of later selling it, some of which the Panel finds convincing as to paragraph 4(b)(i) of the Policy. The Panel finds that on Annex to the Complaint evidences that when requested by the Complainant to transfer the domain name, the Respondent indicated that the transfer would cost the Complainant USD5,000. The Respondent has provided no evidence that this amount was commensurate with the Respondent’s out-of-pocket costs and the Panel believes that this amount is in excess of such costs. The bad faith element under the Policy arises due to the fact that the Respondent is offering the Complainant a domain name in which the Complainant has rights for a price in excess of its out-of-pocket costs. See General Electric Company v. Normina Anstalt a/k/a Igor Fyodorov, WIPO Case No. D2000-0452.

The fact that the Complainant has shown that the Respondent has an additional 1,234 domain names registered under its name as well as 8,289 domain names registered under the contact address on the email communication with the Complainant buttresses the Complainant’s contention that the Respondent’s overall objective was to acquire the domain name in order to sell it. In the August 15, 2008 email, the Respondent notes that they had plans for the disputed domain name, however almost 9 years after registration, the only data on the website consist of links to third parties and other pay-per-click advertisements. Whether these links had been incorporated by the Respondent or not, neither use would constitute a bona fide or legitimate use of the disputed domain name.

Due to the fact that the disputed domain name wholly includes the trademark of the Complainant as well as the fact that the links provided on the website offer similar products as the Complainant, the Panel can also find evidence of bad faith use under paragraph 4(b)(iv) of the Policy. The Panel can conclude that in light of the Complainant’s unique trademark and its inclusion into the Respondent’s domain name, the Respondent had intentionally attempted to attract Internet users to the website for commercial gain. The fact that many of the links on the landing page were for products either sold by the Complainant or its competitors reinforces this point.

Without actual evidence to the contrary, the Panel finds that based on the preponderance of the evidence that there has been bad faith registration and use of the disputed domain name by the Respondent. For the above reasons, the Panel finds that the Complainant has met the requirements of paragraph 4(a)(iii) of the Policy.

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 <selpak.com> be transferred to the Complainant.


Nasser A. Khasawneh
Sole Panelist

Dated: February 9, 2009

 

Источник информации: https://internet-law.ru/intlaw/udrp/2008/d2008-1952.html

 

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