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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Sanset Gida Turizm Sanayi Ve Ticaret A.S. v. Ender Uygun

Case No. D2008-0489

1. The Parties

The Complainant is Sanset Gida Turizm Sanayi Ve Ticaret A.S., Istanbul, Turkey, represented by Emre Uzun, Turkey.

The Respondent is Ender Uygun, Balikesir, Turkey.

2. The Domain Names and Registrar

The disputed domain names <tadelle.com> and <tadelle.net> are registered with Register.com.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 31, 2008. On March 31, 2008, the Center transmitted by email to Register.com a request for registrar verification in connection with the domain names at issue. On April 1, 2008, Register.com 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”), 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 April 3, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was April 23, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 25, 2008.

The Center appointed Dilek Ustun as the sole panelist in this matter on May 5, 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 in this administrative proceeding is SANSET GIDA TURIZM SANAYI VE TICARET A.S., a joint stock company duly incorporated in the Republic of Turkey.

The trademark TADELLE and its registered derivatives have been used in Turkey for nearly 30 years, mainly for chocolate bars, wafers, confections, hazelnut confections, chocolate bars and wafers with hazelnut-filling, cocoa and hazelnut derivatives.

The trademark TADELLE NUGAT BAR was acknowledged by the Turkish Patent Institute as a well-known trademark (as defined under article 6(1) of the Paris Convention of March 20, 1883).

The trademark TADELLE was first registered in 1979. Additionally, the Complainant has provided a list and copies of registration certificates which consist of the trademark TADELLE.

5. Parties’ Contentions

A. Complainant

The Complainant asserts that the Respondent’s domain names <tadelle.com> and <tadelle.net> are identical to its registered and well-known marks mentioned above.

The Complainant also adds that the fact that the word “tadelle” is a made-up word, rules out any possibility of coincidence, since “tadelle” does not connote anything (other than the Complainant’s products) in the Turkish language.

The Complainant asserts that the Respondent has no rights or legitimate interests in respect of the disputed domain names. 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 trademarks. The Complainant adds that the Respondent has never been known by this name.

The Complainant also notes that the Respondent is not making a legitimate non-commercial or fair use of the domain names.

The Complainant states that the domain names <tadelle.com> and <tadelle.net> were registered by the Respondent primarily for the purpose of selling them to the Complainant for an amount exceeding out-of-pocket expenses related to the registration and upkeep of the domain names.

The Complainant’s trademarks have long been established in the market and are widely-known. The Respondent has thus registered the <tadelle.com> and <tadelle.net > domain names corresponding to a widely-known trademark, thereby seeking to unduly profit from the goodwill flowing therefrom.

B. Respondent

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

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. Identical or Confusingly Similar

The Complainant has proven that it holds rights to the trademark TADELLE. The trademark is included in the disputed domain names. The suffixes “.com” and “.net” are incidental to the domain names and cannot serve to distinguish them.

The Panel finds that the Complainant has trademark rights in the name TADELLE. Since the domain names comprise the Complainant’s trademark and the generic “.com” and “.net” suffixes, the Panel finds that the domain names are identical to a trademark in which the Complainant has rights.

As a result, the Panel therefore concludes that the domain names <tadelle.com> and <tadelle.net> are identical to the Complainant’s trademark and as a consequence, the Complaint 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 names, nor that the Respondent holds any trademark or service marks rights in the name.

The Respondent did not reply and 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 names. The Complainant has shown that the Respondent has neither a license nor any other permission to use the domain names in dispute and the Respondent has not made non-commercial or fair use of the disputed domain names.

The Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain names.

C. Registered and Used in Bad Faith

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

The domain names <tadelle.com> and <tadelle.net> were registered by the Respondent primarily for the purpose of selling them to the Complainant for an amount exceeding out-of-pocket expenses related to the registration and upkeep of the domain names. Both domain names resolve to a web site where it is explicitly stated that the domain names are for sale, for a price of YTL 100,000.00.

The Respondent is a Turkish citizen. This leads the Panel to conclude that the Respondent knew about the trademarks of the Complainant and its fame in Turkey when it registered the domain names. Thus consistent with UDRP precedent, the Complainant has made out an unrebuttable prima facie showing that the Respondent lacks rights or legitimate interests in the domain names, see WIPO overview, paragraph 2.1.

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 Complainant’s mark is a widely-known mark in multiple jurisdictions, including in Turkey and other non-Turkish jurisdictions;

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

- 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 names <tadelle.com> and <tadelle.net> have been registered and are being used in bad faith by the Respondent.

The Panel finds that the domain names were registered and are being used in bad faith within the meaning of paragraphs 4(a)(iii) and 4(b)(i) 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 <tadelle.com> and <tadelle.net> be transferred to the Complainant.

Dilek Ustun
Sole Panelist

Dated: May 13, 2008