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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Dцlcom Цzel Egitim Hizmetleri A.S. v. Selim Dogan

Case No. D2006-0177

 

1. The Parties

The Complainant is Dцlcom Цzel Egitim Hizmetleri A.S., Istanbul, Turkey, represented by M. Cьneyt Yatkin, Turkey.

The Respondent is Selim Dogan, Kampus Konya, Turkey.

 

2. The Domain Name and Registrar

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

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 9, 2006. On February 9, 2006, the Center transmitted by email to Dotster, Inc. a request for registrar verification in connection with the domain name at issue. On February 10, 2006, 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 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 February 17, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was March 9, 2006. The Response was filed with the Center on March 10, 2006.

The Center appointed Dilek Ustun as the Sole Panelist in this matter on March 28, 2006. 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 a Turkish company specializing in educational services, namely providing conferences, classes, seminars, workshops, training and courses in foreign languages, career placement and advancement, preparation for taking technical, academic and career oriented examinations, etc.

The Complainant holds servicemark registrations for the terms DEULCOM and DEULCOM INTERNATIONAL since 1995 for educational services in Turkey. The Complainant has also several foreign service mark registrations and an international registration.

The Complainant is the owner of the domain name <deulcom.com.tr>. The Complainant has been using/holding the domain name <deulcom.com.tr> since January 26, 1999.

The disputed domain name <deulcom.com> was registered by the Respondent on September 5, 2000.

 

5. Parties’ Contentions

A. Complainant

The domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights

The Complainant asserts that the Respondent’s domain name <deulcom.com> is identical to its registered service marks mentioned above. It has used the trademark DEULCOM and DEULCOM INTERNATIONAL in Turkey and other countries for many years and its service marks have acquired distinctiveness through use.

The Respondent has no rights or legitimate interests in respect of the domain name

The Complainant states that the Respondent lacks any commercial establishment and/or commercial activities at all.

The Complainant asserts that the Respondent has no rights or legitimate interests in respect of the disputed domain name. In support of this allegation, the Complainant states that the Respondent is neither a licensee of the Complainant, nor has it obtained permission to use the Complainant’s servicemarks. The Complainant adds that the Respondent has never been known by this name.

The domain name was registered and is being used in bad faith

The Complainant states that the domain name <deulcom.com> was registered by the Respondent primarily for the purpose of selling it to the Complainant for an amount exceeding out-of-pocket expenses related to the registration and upkeep of the domain name.

The Complainant’s service mark has long been established in the market and is widely known. The Respondent has thus registered the <deulcom.com> domain name corresponding to a widely known service mark, thereby seeking to unduly profit from the goodwill flowing therefrom.

B. Respondent

The Respondent submitted his response to the Center on March 10, 2006, a day after the Response due date. However, the Panel has decided to consider this Response.

The Respondent asserts that he was not aware of the Complainant up to 2003 and the Complainant had no international trademark or service mark registration when the domain name was created.

The Respondent contends that he established the web site for a student’s community and points to the fact that its non-commercial website has been up and running for 6 years. Over that period its use of the domain name has been legitimate, non-commercial and fair and without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

As to the Complainant’s allegation of bad faith, the Respondent contends that it fails for a number of reasons. None of the circumstances evidencing bad faith which are set out in paragraph 4(b) of the Policy are applicable here. There is no evidence that the Respondent ever intended to sell the domain name. It is not for sale and never has been for sale. The domain name has never been redirected to any site and the Respondent is not a competitor of the Complainant and in any event, does not disrupt the Complainant’s business. The Respondent simply states that his website never published items related to the Complainant’s service mark.

The Respondent asserts that he has no intention to make commercial profit, to dilute or tarnish the Complainant’s trademark, or to divert consumers from the Complainant’s trademark.

The Respondent seeks a finding of reverse domain name hijacking against the Complainant under paragraph 15(e) of the Policy.

 

6. Discussion and Findings

Paragraph 15(a) of the Rules requires the Panel to decide a Complaint on the basis of the statements and documents submitted in accordance with the Policy, these rules and any rules and principles of law that it deems applicable.

Under paragraph 4(a) of the Policy, the Complainant bears the burden of showing:

(i) that the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

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

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

A. Rights in a trademark

The Complainant has proven that it holds rights to the trademark DEULCOM. The trademark is included in the disputed domain name. The suffix “.com” is incidental to the domain name and cannot serve to distinguish it.

The Panel finds that the Complainant has trademark/service mark rights in the name DEULCOM. Since the domain name comprises the Complainant’s service mark and the generic “.com” suffix, the Panel finds that the domain name is identical to a trademark/service mark in which the Complainant has rights.

As a result, the Panel therefore concludes that the domain name <deulcom.com> is identical to the Complainant’s trademark/service mark and as a consequence, the action brought by the Complainant meets the requirement of paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

Viewing this situation in light of paragraph 4(c) of the Policy, what the Respondent has done to date is not a bona fide offering of goods or services. There is no evidence whatsoever that the Respondent has been commonly known by the domain name, nor that the Respondent holds any trademark or service mark rights in the name.

The Respondent has not provided any evidence of the type specified in paragraph 4(c) of the Policy, or any other circumstances giving rise to a right or legitimate interest in the domain name. The Complainant showed that the Respondent has neither a license nor any other permission to use the domain name in dispute.

The Respondent has not made non-commercial or fair use of the name. Paragraph 4(c) of the Policy sets out a non-exhaustive list of circumstances, which, if shown by the Respondent to be present, shall be evidence of the Respondent’s rights or legitimate interests in respect of the domain name. However, the primary burden is on the Complainant to show that the Respondent has no such rights or legitimate interests. Once the Complainant has made out a prima facie case, paragraph 4(c) of the Policy gives examples of how a respondent may demonstrate rights or legitimate interests in a domain name.

When the Respondent registered the domain name it knew that “Deulcom” was the name of the Complainant. It registered the name because it was the name of the Complainant and would be recognised as such.

Here the Respondent relies upon paragraph 4(c)(iii) of the Policy on the basis that throughout the last 6 years the Respondent has been making a fair, legitimate, non-commercial use of the domain name to connect to a not-for-profit student’s community-site without any intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark “Deulcom”. There is no noteworthy evidence for this assertion and the Panel remains unconvinced.

The Panel concludes that the Respondent cannot rely upon its disputed use of the domain name to establish rights or legitimate interests in respect of the domain name. The Panel finds that the Respondent has no rights or legitimate interests in respect of the domain name.

C. Registered and Used in Bad Faith

The Complainant established facts, which are clearly relevant to the issue of whether the Respondent registered and is using the domain name in bad faith.

The Respondent is a Turkish citizen and from an education environment.This leads the Panel to conclude that the Respondent knew about the services of the Complainant and its fame in Turkey.

All the circumstances, taken together, need to be assessed in determining the question of bad faith. In this case, the following facts are considered relevant:

- that the mark is a widely-known mark in multiple jurisdictions, including in Turkey and other Turkish and non-Turkish jurisdictions;

- that the Respondent has no legitimate claim, right or interest to the domain name;

- that there is no evidence of intended use in good faith.

These facts form the ground on which the Panel can depend in concluding bad-faith of the registrant. For the reasons outlined above, the Panel finds that the domain name <deulcom.com> has been registered or used in bad faith by the Respondent.

The Panel finds that the domain name was registered in bad faith and is being used in bad faith within the meaning of paragraphs 4(a)(iii) and 4(b)(i) of the Policy.

D. Reverse Domain Name Hijacking

Paragraph 1 defines reverse domain name hijacking as “using the Policy in bad faith to attempt to deprive a registered domain-name holder of a domain name”. See also paragraph 15(e). To prevail on such a claim, the Respondent must show that the Complainant knew of the Respondent’s unassailable right or legitimate interest in the disputed domain name or the clear lack of bad faith registration and use, and nevertheless brought the Complaint in bad faith. See e.g., Sydney Opera House Trust v. Trilynx Pty. Ltd., WIPO Case No. D2000-1224.

In light of the Panel’s conclusions, the request for a finding under this heading inevitably fails.

 

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, <deulcom.com>, be transferred to the Complainant.

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Dilek Ustun
Sole Panelist

Dated: April 11, 2006