WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Çiçeksepeti Çiçekçilik ve Turizm Ltd. Şti. v. Ertunç Meriçtan

Case No. D2010-0111

1. The Parties

The Complainant is Çiçeksepeti Çiçekçilik ve Turizm Ltd. Şti. of Istanbul, Turkey, represented by Rıza Ferhan Çağırgan of Gür Law & IP Firm, Turkey.

The Respondent is Ertunç Meriçtan of Istanbul, Turkey.

2. The Domain Name and Registrar

The disputed domain name <meyveciceksepeti.com> is registered with FBS Inc.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 25, 2010. On January 26, 2010, the Center transmitted by email to FBS Inc. a request for registrar verification in connection with the disputed domain name. On February 5, 2010 FBS Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details, however it failed to confirm the language of the registration agreement. 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 March 5, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was March 25, 2010. The Respondent did not submit any Response. Accordingly, the Center notified the Respondent's default on March 29, 2010.

The Center appointed Gökhan Gökçe as the sole panelist in this matter on April 12, 2010. 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.

Language of the Proceedings

The Registrar of the disputed domain name has failed to verify and inform the Center of the language of the relevant registration agreement.

The Complainant sent the Complaint in both Turkish and English and the Center sent notifications to the Respondent in both languages, however the Respondent failed to submit a Response in time or at all. In reaching its decision regarding language of the proceeding the Panel has considered paragraph 11 of the Rules, the fact that the Center sent all the communications in both languages, Turkish and English, and as such, the Panel is satisfied that the Respondent had fair notice of the dispute. Further, based on the lack of any Response, in the Panel's view, the Respondent will not be prejudiced by a decision being rendered in English.

For all the above reasons, the Panel determines according to Rules, paragraph 11(a), that the language of these proceedings will be English.

4. Factual Background

The Complainant was established in 2000 and provides an Internet service that enables customers to purchase and send flowers through its website “www.ciceksepeti.com”.

The Respondent registered the disputed domain name <meyveciceksepeti.com> on October 28, 2008.

5. Parties' Contentions

A. Complainant

In accordance with paragraph 4(b)(i) of the Policy, the Complainant requests that the domain name <meyveciceksepeti.com> 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 submits it is a leading company that has provided goods and services in the area of floriculture since its establishment in 2000, and furthermore that it is a well known brand in Turkey. The Complainant confirms that it has registered its trademark ÇİÇEKSEPETİ with the Turkish Patent Institute under registration number 2008 11725 on March 3, 2008 as evidenced in Annex 3 to the Complaint.

Furthermore, on November 4, 2002 the Complainant registered the domain name <ciceksepeti.com> and has actively used it since its registration. The Complainant contends that the Respondent registered the disputed domain name on October 28, 2008 and that is obviously identical to its registered trademark.

Rights or Legitimate Interests

The Complainant asserts that the Respondent has no rights or legitimate interests in the disputed domain name as there is no corresponding trademark registration and the Respondent is not known by that name.

The Complainant contends that there is no bona fide use of the disputed domain name and no evidence of the Respondent's use of, or demonstrable preparations to use, the domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services.

The Complainant submits there is no legitimate noncommercial or fair use of the domain name.

Registered and Used in Bad Faith

The Complainant contends that the Respondent does not have any right to register a domain name which is identical to its trademark. The Complainant submits that the Respondent registered the disputed domain name for the purpose of confusing Internet users and to divert them to an unofficial website. The Complainant points to the fact the disputed domain name will cause the Complainant's customers confusion as they would expect the disputed domain name to resolve to the Complainant's website. The Complainant further contends that the disputed domain name was registered and being used in bad faith as the disputed domain name resolved to a website with content in direct competition with the Complainant's business. The Complainant submits that the disputed domain name resolved to a website with content concerning fruit flowers which would cause confusion to potential customers of the Complainant and that the Respondent intentionally chose to register a disputed domain name containing the Complainant's trademark.

The Complainant notes that the disputed domain name directly hyperlinks to the Respondent's website “www.lezzetdemetleri.com”, as evidenced in Annex 4 to the Complaint. The Complainant contends that the fact the disputed domain names resolved to a website that was in direct competition with the Complainant constitutes bad faith use and registration.

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 website at the disputed domain name 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 name is 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 name; and,

(c) The domain name has been registered and is 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.

In the absence of a reply from the Respondent the Complainant must still establish the elements of paragraph 4(a) of the Policy, however the Panel may accept as true factual allegations in the Complaint, Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110.

A. Identical or Confusingly Similar

Paragraph 4(a)(i) of the Policy simply requires the Complainant to demonstrate that the disputed domain name is 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 ÇİÇEKSEPETİ. The Panel finds that the disputed domain name is virtually identical to the Complainant's trademark as ÇİÇEKSEPETİ trademark is fully incorporated within the disputed domain name and comprises the dominant portion thereof. See Magnum Piering, Inc. v. The Mudjackers, WIPO Case No. D2000-1525, “when a domain name wholly incorporates a complainant's registered mark, which is sufficient to establish identity or confusing similarity for the purposes of the Policy”.

The Panel finds that the addition of the generic word “meyve” which is Turkish for “fruit”, does not distinguish the disputed domain name from Complainant's mark because the disputed domain name contains Complainant's mark in its entirety. It is also well-established under the Policy that a domain name composed of a trademark coupled with a generic term may still be found to be confusingly similar to the trademark, Veuve Clicquot Ponsardin v. Net-Promotion, Inc.,WIPO Case No. D2000-0347.

Furthermore, although not specifically necessary to the Panel's paragraph 4(a)(i) analysis, the Complainant operates the website “www.ciceksepeti.com” which is nearly identical to the disputed domain name, save the absence of the generic word “meyve” in the disputed domain name.

In view of the foregoing, the Panel finds that the disputed domain name is 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 name. 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 been 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 Policy at paragraph 4(c) provides various ways in which a Respondent may demonstrate rights or legitimate interests in the domain name.

The Complainant contends that the Respondent is not using the disputed domain name for legitimate noncommercial or fair use of the disputed domain name. The Panel visited the disputed domain name, which at that time did not resolve in any website. In the absence of other evidence the Panel relied on the evidence of screen shots provided by the Complainant at Annex 4 to the Complaint. The Panel finds that registering a domain name incorporating a well-known trade mark and using it to misdirect Internet users to websites offering competing products and services, with the apparent intention of earning click through revenue, does not by itself give rise to a legitimate interest and constitutes commercial use of the disputed domain name.

Other panels have accepted that such use may be legitimate in certain limited circumstances, such as where the terms used in the domain name are generic and dictionary words, provided of course that the Respondent does not use the disputed domain name in order to disrupt the Complainant's business or to mislead Internet users for commercial gain. Cloer Elektrogeräte GmbH v. Motohisa Ohno, WIPO Case No. D2006-0026; Villeroy & Boch AG v. Mario Pingerna, WIPO Case No. D2007-1912. In this dispute it is clear that the Respondent relied on the fame of the mark and was collecting financial revenue by misleadingly diverting Internet users. The Panel is of the opinion that such use, cannot be considered a bona fide use, or fair or noncommercial use and that in the absence of evidence there is nothing to suggest the Respondent has rights or legitimate interests in the disputed domain name.

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 it the Panel accepts the Complainant's contentions as true, 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 legitimate interest or right in the disputed domain name and therefore the Panel accepts the Complainants' reasonable 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 the disputed domain name.

The requirements of 4 (a)(ii) are fulfilled and consequently the Panel finds in favour of the Complainants on the second element of the Policy.

C. Registered and Used in Bad Faith

Finally, the Complainant must show that the disputed domain name has been registered and is being used in bad faith under paragraph 4(a)(iii) of the Policy.

The Complainant's trademark ÇİÇEKSEPETİ was registered and being used long before the Respondent's registration of the disputed domain name. The Panel finds that the Respondent has intentionally attempted to attract, for commercial gain, Internet users to an online location, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the Respondent's website or other location.

There has been no reply from the Respondent, and while this not conclusive of bad faith it is a consideration to be taken into account to support the Complainant's contentions of bad faith.

As in Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003 and Ladbroke Group Plc v. Sonnoma International LDC,WIPO Case No. D2002-0131, after examining all of the circumstances surrounding the registration and use of the disputed domain name, the Panel finds that the Respondent registered and is using the disputed domain name 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 name <meyveciceksepeti.com> be transferred to the Complainant.

Gökhan Gökçe
Sole Panelist

Dated: April 27, 2010