Future Publishing Limited v. Cami Kebir Mahallesi/PCPlus.com.tr, Bulent Ozcan, and Yesilkent Kasabasi
Case No. D2008-0558
1. The Parties
The Complainant is Future Publishing Limited, Bath, United Kingdom of Great Britain and Northern Ireland, represented by Stevens and Bolton LLP, United Kingdom of Great Britain and Northern Ireland.
The Respondents are Cami Kebir Mahallesi/PCPlus.com.tr, Bulent Ozcan, and Yesilkent Kasabasi, Turkey, represented by Ali Osman Ozdilek, Turkey.
2. The Domain Name and Registrar
The Disputed Domain Name <pcplus.com> is registered with Godaddy.com, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 10, 2008. On April 11, 2008 the Center transmitted by email to Godaddy.com, Inc. a request for registrar verification in connection with the domain name at issue. On April 12, 2008, Godaddy.com, Inc. transmitted by email to the Center its verification response stating that the Disputed Domain Name’s registrant holder was not Mr. Cami Kebir Mahallesi as indicated in the Complaint but PCPlus.com.tr which names Yesilkent Kasabasi as a representative. On April 15, 2008 the Center invited the Complainant to file an amendment to the Complaint based on this new information. On April 21, 2008 the Complainant filed the amendment to the Complaint with the Center. On April 22, 2008, 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 Respondents of the Complaint, and the proceedings commenced on April 22, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was May 12, 2008. The Respondents filed the response on May 10, 2008.
The Center appointed Alistair Payne as the sole panelist in this matter on May 16, 2008. 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 Future Publishing Limited, the publisher of the magazine “PCPlus” which provides information in relation to hardware and software products. The Complainant registered the domain name <pcplus.co.uk> in August 1996.
On January 23, 2008, the Complainant was contacted by a Tom Marsh who offered to sell the Disputed Domain Name to the Complainant for the sum of €15,000.
On January 25, 2008, Mr. Bulent Ozcan (the Second Respondent) purchased the Disputed Domain Name via an auction website named “Namejet”.
On March 13, 2008, the Complainant’s advisers sent a letter to the Second Respondent inviting him to transfer the Disputed Domain Name to the Complainant.
On March 18, 2008, the Disputed Domain Name was transferred from Bulent Ozcan to Cami Kebir Mahallesi (the First Respondent).
A WhoIs search on the April 3, 2008 revealed that the registered owner had changed again and the domain name was now held by Domains by Proxy, Inc. Domains by Proxy, Inc. provides a service whereby a registrant’s contact details can be kept private.
The current registrant for the Disputed Domain Name is PCPlus.com.tr.
The Complainant is seeking the transfer of the Disputed Domain Name.
5. Parties’ Contentions
A. Complainant
The Complainant maintains to be the owner of a substantial goodwill in the name “pcplus” as it has published a magazine entitled “PCPlus” since 1986 which it claims enjoys a monthly circulation of 28,000 and a readership of 323,000. The Complainant further claims that it has a significant web presence as its website “www.pcplus.co.uk” has over 50,000 visitors and between 160,000 and 180,000 page views every months.
The Complainant argues that the Respondents do not have any rights or legitimate interests in the Disputed Domain Name. The Complainant contends that the Respondents have never been known by the Disputed Domain Name and that they have not used the Disputed Domain Name in connection with a bona fide offering of goods or services.
The Complainant asserts that the Disputed Domain Name was registered and has been used in bad faith. In particular, the Complainant notes that on January 23, 2008 it received an e-mail from Mr. Tom Marsh (who, in the Complainant’s view, was an employee, agent, servant or a representative of the Second Respondent) who offered to sell the Disputed Domain Name for € 15,000. Therefore, the Complainant argues that the Respondents purchased the Disputed Domain Name primarily for the purpose of selling, renting or otherwise transferring for valuable consideration in excess of the Respondents’ out-of-pocket costs directly related to the Domain Name at issue.
The Complainant also notes that the Second Respondent initially parked the Disputed Domain Name with a domain name management service. Through this service he received sums every time that an Internet user clicked on one of the links present on the website maintained at the Disputed Domain Name.
In addition, the Complainant also highlights that upon receipt of a letter from it’s advisers the Second Respondent transferred the Disputed Domain Name to the First Respondent for the purpose of preventing the Complainant seeking to recover the Domain Name at issue. The Complainant also maintains that the activation of the privacy service and the subsequent transfer to the Third Respondent are further attempts to prevent the Complainant from recovering the Disputed Domain Name.
B. Respondents
The Respondents submit that the Complainant does not own any trade mark for “pcplus” and that it has submitted no evidence to suggest that it is the owner of a substantial goodwill in the name “pcplus”. The Respondents further contend that the word “pcplus” is a generic name constituted by two generic words “pc” and “plus” and, as a result, the Disputed Domain Name is not identical or confusingly similar to a trade mark in which the Complainant has rights.
The Respondents maintain that they have rights and legitimate interests in the Disputed Domain Name as they planned to publish a periodical related to computer business under the name “pcplus”. For this reason the Respondents purchased the Disputed Domain Name as well as <pcplus.com.tr> and <pcplus.info>. The Respondents further assert that they submitted a Periodical Declaration to Menemen Public Prosecutor’s Office.
The Respondents argue that there is no connection between Tom Marsh and themselves. The Respondents submit that the Second Respondent bought the Disputed Domain Name via an auction website called “NameJet” on January 25, 2008. The Respondents highlighted that they had no relation with the Disputed Domain Name at the time in which the offer was made.
The Respondents claim that they bought the privacy service from Domains by Proxy, Inc. to protect its domain name against hijacking attempts.
6. Discussion and Findings
A. UDRP Elements
If the Complainant is to succeed, it must prove each of the three elements referred to in Paragraph 4(a) of the Policy, namely that:
i. the Disputed Domain Name is identical or confusingly similar to a trade mark in which the Complainant has rights; and
ii. the Respondents have no rights or legitimate interests in respect of the Disputed Domain Name; and
iii. the Disputed Domain Name has been registered and is being used in bad faith.
The Panel will proceed to establish whether the Complainant has discharged the burden of proof in respect of each of the three elements referred to in paragraph 4(a) of the Policy.
B. Identical or Confusingly Similar
The Complainant has provided and the Panel accepts evidence of its common law useage rights for PCPLUS. The Complainant is the publisher of the magazine “PCPlus” which has been widely distributed since 1986. Moreover, the Complainant owns the domain name <pcplus.co.uk>.
The Disputed Domain Name wholly incorporates the title of the Complainant’s magazine. Therefore, in the Panel’s view, the Disputed Domain Name is identical to the Complainant’s common law trade mark and confusingly similar to the domain name <pcplus.co.uk>.
As such, the Complainant has satisfied paragraph 4(a)(i) of the Policy.
C. Rights or Legitimate Interests
The Respondents argue that they have rights and legitimate interests in the Disputed Domain Name as they have used it for the purpose of publishing a periodical regarding computer business under the name “PcPlus”. In order to realize this project they maintain that they registered the domain names <pcplus.com.tr> and <pcplus.info>. The Respondents further assert that they added contents on the website hosted at the Disputed Domain Name a few days after the Second Respondent purchased the domain name at issue, publishing news in relation to hardware and software products.
In order to show that they have rights or legitimate interests in the Disputed Domain Name the Respondents must prove before they received any notice of the dispute, the use of, or demonstrable 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. The Complainant’s magazine has been published since 1986 and as the Respondents are providing a similar service through the Disputed Domain Name, the Panel can not consider the Respondents’ use of the Disputed Domain Name as a use in connection with a bona fide offering of goods or services.
Even assuming that the Respondents’ use of the Disputed Domain Name is in connection with a bona fide offering of goods or services, this does not demonstrate rights or legitimate interests at the date of the dispute if they occur after any notice of the dispute. The Panel notes that the purchase of the related domain name <pcplus.com.tr>, the submission of a Periodical Declaration to the Menemen Public Prosecutor’s Office and even the use of the Disputed Domain Name were made after the Complainant’s cease and desist letter, which the Panel considers, under paragraph 4 (c) (i) of the Policy, as “a notice of the dispute” (see Retecasa SpA v. Guido Savio,
WIPO Case No. D2007-1017).
Concerning the Respondents’ use of the Disputed Domain Name, the Panel notes that the Respondents are incorrect in asserting that they started using the Disputed Domain Name “just after a few days following the purchase of the said domain name”.
In fact, based on the evidence provided to the Panel, by March 18, 2008 the Disputed Domain Name was not used by the Respondents and after that time the sole content that appeared on the website was the message “NEW WEBSITE COMING SOON”. Although the website at the date of the dispute now contains very minimal content and some links to well established sites, it has been proved that no use was made of the Disputed Domain Name until March 18, 2008 which is after the date of the Complainant’s cease and desist letter.
On the basis of the evidence provided by the Parties and for the additional reasons set out in section D below, the Panel does not find any other circumstance from which to infer the Respondents rights or legitimate interests in the Disputed Domain Name.
For the foregoing reasons, the Panel is satisfied that the Respondents have no rights or legitimate interests in the Disputed Domain Name. Therefore, the Complainant has satisfied paragraph 4(a)(ii) of the Policy.
D. Registered and Used in Bad Faith
The Panel considers it is likely that when the Disputed Domain Name was purchased by the Second Respondent, his partners (including the First Respondent) were aware of the Complainant’s “PCPlus” magazine. In fact, the Panel considers it reasonable to presume that any person who plans to do business in a specific sector would analyze the market place and identify potential competitors at least by a simple search of the Internet. For these reasons, the Panel infers that the Disputed Domain Name was purchased in full knowledge of the Complainant’s rights and ownership of goodwill in PCPLUS.
Furthermore, the Panel notes that the Disputed Domain Name was transferred by the Second Respondent to the First Respondent just a few days after the Complainant’s cease and desist letter. This transfer without due explanation appears to the Panel an attempt to avoid judicial or UDRP proceedings or, at very least, to make it more difficult for the Complainant to succeed. In the Panel’s view this amounts to an example of cyberflying and, consequently, bad faith on the part of the Respondents. Consequently, the Panel is prepared to infer that the Disputed Domain Name was both registered and used in bad faith.
Finally, the Panel notes that the Respondents and related companies own multiple domain names as revealed in a simple Google search which suggests that their chief focus is not on their own “pc plus project” but rather the registration of domain names which in all the other circumstances is at the least indicative of bad faith.
For the reasons stated above, the Panel is satisfied that the Disputed Domain Name was registered and used in bad faith. As such, paragraph 4(a)(iii) of the Policy is satisfied.
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 <pcplus.com> be transferred to the Complainant.
Alistair Payne Sole Panelist
Dated: June 9, 2008
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