Kapadokya Balonculuk Turizm Ticaret Ltd. Şti. v. Halil Uluer
Case No. D2009-0620
1. The Parties
The Complainant is Kapadokya Balonculuk Turizm Ticaret Ltd. Şti., of Göreme Nevsehir, Turkey, internally represented.
The Respondent is Halil Uluer, of Ankara, Turkey.
2. The Domain Names and Registrars
The disputed domain names <cappadociaballoon.com> and <kapadokyaballoon.com> are registered with Reg2C.com Inc.
The disputed domain name <kapadokyaballooning.com> is registered with DSTR Acquisition VII, LLC d/b/a Dotregistrar.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 8, 2009. On May 8, and 22, 2009, the Center transmitted respectively by email to DSTR Acquisition VII, LLC d/b/a Dotregistrar.com and Reg2C.com Inc., a request for registrar verification in connection with the disputed domain names. On May 8, and 23, 2009, DSTR Acquisition VII, LLC d/b/a Dotregistrar.com and Reg2C.com Inc., transmitted respectively by email to the Center its verification responses confirming that the Respondent is listed as the registrant and providing the contact details. The Center sent an e-mail communication related to the language of proceeding for the disputed domain names <cappadociaballoon.com>, and <kapadokyaballoon.com> to the Complainant on May 26, 2009. The Complainant filed a language of the proceedings request on June 1, 2009. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on June 5, 2009. 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” 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 June 9, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was June 29, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on June 30, 2009.
The Center appointed Gökhan Gökçe as the sole panelist in this matter on July 9, 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, Kapadokya Balonculuk, is a limited liability company engaged in the field of hot air ballooning adventures in Cappadocia, Turkey. It has been established and operating hot air ballooning services for 15 years.
The Complainant owns and uses the trademark KAPADOKYA BALLOONS which was registered at the Turkish Patent Institute on December 24, 1999.
The Respondent is an individual and is involved in the business of offering services in the same field and region as the Complainant, namely hot air ballooning services in Cappadocia, Turkey. The Respondent registered the disputed domain names <cappadociaballoon.com> and <kapadokyaballoon.com> on April 11, 2007, and <kapadokyaballooning.com> on August 21, 2006.
5. Parties' Contentions
A. Complainant
In accordance with paragraph 4 of the Policy, the Complainant requests that the disputed domain names should be transferred to the Complainant.
The Complainant submits the grounds for these proceedings are listed in paragraph 4(a) of the Policy.
Identical or Confusingly Similar
The Complainant registered its trademark KAPADOKYA BALLOONS with the Turkish Patent Institute on December 24, 1999 as evidenced in the trademark certificate No. 99022759 exhibited at Annex 3.
The Complainant contends that the disputed domain names <cappadociaballoon.com>, <kapadokyaballoon.com> and <kapadokyaballooning.com> are identical or confusingly similar to the trademark KAPADOKYA BALLOONS in which it has rights.
The Complainant submits that the disputed domain name <kapadokyaballoon.com> is almost identical to the Complainant's trademark save for the exclusion of the letter ‘s'.
It is submitted that the disputed domain name <cappadociaballoon.com> is almost identical to the Complainant's trademark save for the exclusion of the letter ‘s' and use of the word Cappadocia rather than Kapadokya. The Complainant argues that use of the word “Cappadocia” is simply the English translation of “Kapadokya” a region in Turkey which does not eliminate visual and phonetic identity with the Complainant's trademark.
In relation to disputed domain name <kapadokyaballooning.com> the Complainant contends that the addition of “ing” does not avoid confusing similarity with its trademark.
Furthermore, the Complainant asserts that the disputed domain names are also confusingly similar to its domain names <kapadokyaballoons.com> and <cappadociaballoons.com>, which heightens confusion.
Rights or Legitimate Interests
The Complainant submits that the Respondent has no rights or legitimate interests in respect of the disputed domain names. The Complainant has never granted the Respondent a licence or permission to use the mark KAPADOKYA BALLOONS, the Respondent has no association with the Complainant and the Respondent has never been commonly known by the disputed domain names. The Respondent operates its own hot air ballooning services and is known as either “Anatolian Balloons” or “Uluer Havacilik/Balonculuk” and has its own website incorporating its commercial name to promote its activities, namely, “www.anatolianballoons.com”.
The Complainant contends the Respondent is not using the disputed domain names in connection with a bona fide offering of goods or services. The Complainant asserts that the Respondent is not using the disputed domain names for legitimate non-commercial or fair use but for a commercial offering of their own services of hot air ballooning in direct competition with the Complainant.
The Complainant notes that the disputed domain names redirect users to the Respondent's website in a manner that misleadingly diverts potential customers of the Complainant.
Registered and Used in Bad Faith
The Complainant notes that it registered its trademark KAPADOKYA BALLOONS almost 8 years before the disputed domain names registrations.
The Complainant states that it was the first company to start hot air ballooning services in the region 15 years ago and has therefore achieved recognition and respect of its local and international clientele. The Respondent is a competitor of the Complainant operating in the same region.
The Complainant submits that the disputed domain names were registered in bad faith as the Respondent must have had knowledge of the Complainant's ownership rights in the trademark KAPADOKYA BALLOONS at the time of registration of the domain names. Furthermore, the Complainant submits a notice it had sent on November 13, 2008 at Annex VI evidencing that the Respondent was on notice of the Complainant's concerns.
The Complainant submits that the Respondent registered the domain names for the purpose of confusing Internet users and to divert them to the Respondent's website for commercial gain. The Complainant notes that the disputed domain name <cappadociaballoon.com> directly hyperlinks to the Respondents website “www.anatolianballoons.com” which constitutes trademark dilution and unfair competition by creating a likelihood of confusion with the Complainant's registered trademark and domain names. The Complainant contends that the fact the disputed domain names resolve to a website that is in direct competition with the Complainant constitutes bad faith use and registration.
The Complainant notes that the disputed domain name <kapadokyaballooning.com> is not being actively used and contends that passive holding of a domain name is in violation of the policy and constitutes bad faith.
B. Respondent
The Respondent did not reply to the Complainant's contentions. Pursuant to paragraph 5(e) of the Rules, if a respondent does not submit a response, in the absence of exceptional circumstances, the panel shall decide the dispute based upon the complaint.
However, failure to respond in a Policy proceeding does not constitute an admission of any pleaded matter. The panel will proceed to evaluate complainant's evidence and its own examination of the respondent's website against the requirements of paragraph 4(a) of the Policy, Stanworth Development Limited v. E Net Marketing Ltd.,WIPO Case No. D2007-1228.
6. Discussion and Findings
Paragraph 4(a) of the Policy sets forth the following three elements which the Complainant must prove, during the administrative proceedings, to merit a finding that the domain name of the Respondent be transferred to the Complainant:
(a) the domain names are identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(b) the Respondent has no rights or legitimate interests in respect of the domain names; and
(c) the domain names have been registered and are being used in bad faith.
Pursuant to paragraph 15(a) of the Rules, the Panel shall decide a complaint 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.
A. Identical or Confusingly Similar
The Policy simply requires the Complainant to demonstrate that the disputed domain names are identical or confusingly similar to a trademark in which the Complainant has rights.
The Panel is satisfied that the Complainant is the owner of the trademark KAPADOKYA BALLOONS. The disputed domain names are <cappadociaballoon.com> and <kapadokyaballoon.com> and <kapadokyaballooning.com>. The disputed domain name <kapadokyaballoon.com> differs from Complainant's trademark only by deletion of the last letter “s”, the Panel finds the deletion of one letter is an insignificant change and does not change the overall impression of the mark thus the disputed domain name is confusingly similar to the Complainant's mark. See Universal City Studios, Inc. v. HarperStephens,
WIPO Case No. D2000-0716.
The Panel finds the addition of “ing” to disputed domain name <kapadokyaballooning.com> is insufficient to overcome confusion and does not change the overall impression of the mark. See Canadian Tire Corporation Limited v. Organization,
WIPO Case No. D2008-1195.
The Panel finds that the deletion of the letter “s” or addition of “ing” is not enough to characterise the disputed domain names as distinct from Complainant's trademark and does not change the overall impression of the mark or avoid confusion.
The Panel finds that the disputed domain name <cappadociaballoon.com> is confusingly similar as it is simply the English translation of Kapadokya, the Panel is of the opinion that there is a likelihood of confusion based on the overall visual and phonetic similarities between the trademark and the disputed domain and it is therefore confusingly similar to the trademark in which the Complainant has rights.
Furthermore, the Complainant owns the following domain names, <kapadokyaballoons.com> and <capadocciaballoons.com>, which are almost identical to the disputed domain names <kapadokyaballoon.com> and <cappadociaballoon.com>.
In view of the foregoing, the Panel finds that the all three disputed domain names are confusingly similar to a trademark in which the Complainant has rights, and therefore, the Complainant has succeeded on this first element under the Policy.
B. Rights or Legitimate Interests
In accordance with paragraph 4(a)(ii), the Complainant must prove that the Respondent has no rights or legitimate interests in respect of the disputed domain names. Although the Policy states that the complainant must prove each of the elements in paragraph 4(a), it is often observed that it is difficult for a complainant to prove a negative and it has therefore generally accepted under the Policy that, once a complainant has presented a prima facie case of a respondent's lack of rights or legitimate interests in a domain name, the burden shifts to the respondent.
The Complainant contends that the Respondent has no right or legitimate interest in the domain names. It is submitted that the Respondent has neither association to the Complainant, nor a connection to the disputed domain names, and is not commonly known by disputed domain names. Furthermore, the Complainant claims the Respondent was fully aware of the Complainant's established reputation. The Complainant alleges the Respondent, as a competitor of the Complainant, is using the disputed domain names to attract Internet users to its own website “www.anatolianballoons.com” for commercial gain.
When the Panel visited disputed domain names, <kapadokyaballoon.com> and <cappadociaballoon.com> on July 16, 2009 both domain names resolved to the same website as the Respondent's “www.anatolianballoons.com” website. The Complainant claimed that the disputed domain name <cappadociaballoon.com> directly hyperlinked to the Respondents website “www.anatolianballoons.com”, this was not the case when the Panel visited the domain, nonetheless, it resolved in a webpage identical to that of the Respondent's website. The Panel is of the opinion that such use in light of the circumstances cannot be considered a bona fide use, or fair or non-commercial use.
When the Panel visited disputed domain, <kapadokyaballooning.com> on July, 16, 2009 it resolved to an inactive website, in the absence of a Response there is no evidence or suggestion that the Respondent has any intention of using the domain name for any purpose or legitimate activity consistent with having rights or legitimate interests. Moreover, as the Respondent appears to be a competitor of the Complainant in the same region and started operating it hot air balloon service after the Complainant, the Panel notes it is likely the Respondent was aware of Complainant's marks and registered the disputed domain names to take advantage of the marks and not in any generic sense. See Kapadokya Balonculuk Turizm Ticaret Ltd. STI v. Göreme Balonculuk Genel Havacilik Reklamcilik Turizm Sanayi Ticaret A.S. and Aslihan.Net., WIPO Case No. D2009-0619.
Paragraph 4(a)(ii) requires the Complainant to prove that the Respondent has no rights to or legitimate interests in the disputed domain name. The Complainant has established a prima facie case that the Respondent lacks a legitimate right or interest in the disputed domain name. As the Respondent failed to submit a response and rebut the allegations made against him the Panel accepts the Complainants contentions as true. See De Agostini S.p.A v. Marco Cialone, WIPO Case No. DTV2002-0005.
In the absence of a response, the Respondent was unable to demonstrate a right or legitimate interest in the disputed domain names and therefore the Panel accepts the Complainant's contentions as true. The Panel therefore concludes that the Respondent has not satisfied paragraph 4(c) of the Policy and concludes that the Respondent has no rights or legitimate interests in all three disputed domain names.
The requirements of 4 (a)(ii) are fulfilled and consequently the Panel finds in favour of the Complainant on the second element of the Policy.
C. Registered and Used in Bad Faith
According to paragraph 4(a)(iii) of the Policy, the Complainant must prove that the disputed domain names have been registered and are being used in bad faith.
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Registration of the trademark KAPADOKYA BALLOONS was in 1999 pre-dating the Respondent's registration of the disputed domain names, by at least eight years. The Respondent and the Complainant are competitors operating hot air ballooning services in the same region, namely Cappadocia, Turkey. The Panel finds that in all likelihood the Respondent was aware of the trademark KAPADOKYA BALLOONS, which reflects the Complainant's commercial name, before registering the disputed domain names. The Panel is of the opinion that the Respondent had knowledge of the Complainant's trademark at the time of registration of the disputed domain names and in light of the present circumstances draws an inference of bad faith. See Parfums Christian Dior v. Javier Garcia Quintas and Christiandior.net,
WIPO Case No. D2000-0226.
It is clear to this Panel the registration of disputed domain names <kapadokyaballoon.com> and <cappadociaballoon.com> was in bad faith as the intention behind the registration was likely to take advantage of, by use of the confusingly similar domain names, the Complainant's rights and derive commercial gain from the Complainant's interest in the disputed domain name. See Kangwon Land, Inc. v. Bong Woo Chun (K.W.L. Inc) WIPO Case No. D2003-0320. It therefore follows that the Respondent, at the time of registration, must have been aware that any illegitimate commercial use of the domain name would result in a violation of the Complainant's trademark rights, suggesting that there was never an intention of good faith use, Telstra Corporation Ltd. v. Nuclear MarshmallowsWIPO Case No. D2000-0003.
Furthermore, when the Panel visited disputed domain names <kapadokyaballoon.com> and <cappadociaballoon.com> on July 16, 2009 both domain names resolved to the same website as the Respondent's “www.anatolianballoons.com” website. This demonstrates bad faith registration and suggests that the Respondent in choosing the domain name had the intention of intentionally attracting Internet users for commercial gain by creating a likelihood of confusion.
Disputed domain <kapadokyaballooning.com> remains inactive. Paragraph 3.2 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions states the lack of active use of the domain name does not as such prevent a finding of bad faith. The panel must examine all the circumstances of the case to determine whether respondent is acting in bad faith. Examples of circumstances that can indicate bad faith include complainant having a well-known trademark, no response to the complaint, concealment of identity and the impossibility of conceiving a good faith use of the domain name. Panels may draw inferences about whether the domain name was used in bad faith given the circumstances surrounding registration, and vice versa. All conditions are present in this dispute so the Panel holds that the Respondent registered and is using the inactive domain name in bad faith.
There is no reply from the Respondent, while this not conclusive of bad faith it is a consideration to be taken into account in light of the circumstances to support the Complainants contentions of bad faith.
There is no suggestion that the Respondent had any intention of legitimate use, that he enjoys a connection to the domain names or that there is conceivable good faith use for the disputed domain names. After examining all circumstances surrounding the registration and use of the domain names, the Panel finds that the Respondent registered and is using the disputed domain names in bad faith. Accordingly the Panel finds in favour of the Complainant on the third element 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 names <cappadociaballoon.com>, <kapadokyaballoon.com> and <kapadokyaballooning.com> be transferred to the Complainant.
Gökhan Gökçe Sole Panelist
Date: July 27, 2009
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