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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Kapadokya Balonculuk Turizm Ticaret Ltd. STI v. Göreme Balonculuk Genel Havacilik Reklamcilik Turizm Sanayi Ticaret A.S. and Aslihan.Net.

Case No. D2009-0619

1. The Parties

The Complainant is Kapadokya Balonculuk Turizm Ticaret Ltd. STI of Nevsehir, Turkey, represented by Fevzi Г‡amli, Turkey.

The Respondents are GГ¶reme Balonculuk Genel Havacilik Reklamcilik Turizm Sanayi Ticaret A.S. of Гњrgãp Nevsehir, Turkey, and Aslihan.Net of Ankara, Turkey, represented by Yalciner Danismanlik ve Dis Ticaret LTD. STI., Turkey.

2. The Domain Names and Registrar

The disputed domain names <cappadociaballooning.com>, <kapadokyaballoons.net> and <kapadokyaballoons.org> are registered with GoDaddy.com, Inc.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on May 8, 2009. On May 8, 2009, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the disputed domain names. On May 8, 2009, GoDaddy.com, Inc. transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on May 20, 2009 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on May 20, 2009. The Center verified that the Complaint together with the amendment to the Complaint on May 27, 2009 and 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 2, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was June 22, 2009. The Response was filed with the Center on June 19, 2009.

The Center appointed Dilek Ustun as the sole panelist in this matter on June 25, 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 Turizm Ticaret Ltd. STI, which is a limited liability company operating hot air ballooning services for 15 years, has been the registered owner of the service mark KAPADOKYA BALLOONS since December 24, 1999. The mark is to be used for services in connection with transportation, air transportation, balloon transportation, tour operating, tour organizing for tourists and travel booking.

5. Parties` Contentions

A. Complainant

The domain names are identical or confusingly similar to a trademark or service mark in which the Complainant has rights.

The first two domain names <kapadokyaballoons.net> and <kapadokyaballoons.org> are completely identical with KAPADOKYA BALLOONS, the service mark of the Complainant. With regard to the third domain name <cappadociaballooning.com>, it is confusingly similar to the service mark of the Complainant, since the main difference is the addition of the letters "ing" at the end, replacing the missing "s" letter. The word "cappadocia" in the domain name is merely the English version of "kapadokya", which refers to the geographical region of Cappadocia, an area famous for the volcanic rock formations also known as the "fairy chimneys", where the Complainant operates ballooning services.

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

The Complainant asserts that the Respondent neither has a license nor any other kind of permission granted by the Complainant concerning the use of the registered trademark KAPADOKYA BALLOONS.

The Complainant also argues the Respondent is using the domain names not in connection with a bona fide offering of goods or services, but for a commercial offering of their own services, namely touristic hot air ballooning services, which are directly competitive with the Complainant`s services, since they are in the same business field.

The Complainant adds that the Respondent has not been commonly known by any of the disputed domain names. They are known as "Göreme Balloons", which is their own registered service mark as well as being their company name. Besides, they already have an active website to promote their own services in line with their registered service mark at "www.goremeballoons.com". Thus, there is no legal ground existing for the Respondent to use the domain names in dispute.

Further, the Complainant argues that legitimate noncommercial or fair use of the disputed domain names is not present, since the intention of the Respondent is clearly making commercial gain by using these domain names. The domain names in dispute instantly re-direct Internet users and potential customers to the website of the Respondent to misleadingly divert consumers due the confusing similarity with the registered service mark and domain names of the Complainant.

The domain names were registered and are being used in bad faith.

The Complainant states that the domain names in dispute should be considered as having been registered and used in bad faith by the Respondent, in accordance with paragraph 3(b)(ix)(3) of the Rules. All disputed domain names were registered on November 8, 2003, almost 4 years after the registration of the service mark KAPADOKYA BALLOONS by the Complainant. Since the Complainant is the first company to start hot air ballooning services in the region, it is well-known and respected by the locals as well as having a very high reputation amongst its wide clientele both from Turkey and around the world. Therefore it is not reasonable for the Respondent, a competitor of the Complainant also operating ballooning services in the same region, to not be aware of the Complainant and the services they provide under the registered trademark KAPADOKYA BALLOONS.

The Complainant also adds that the Respondent constitutes not only an infringement upon the service mark of the Complainant and therefore a trademark dilution, but also unfair competition by creating a likelihood of confusion with the Complainant`s registered service mark and domain names, which is aggravated since the Complainant and the Respondent are direct competitors.

B. Respondent

The Respondent did reply to the Complainant`s contentions and states that both Complainant and Respondent companies are located in this region and both of companies use the word Cappadocia (Kapadokya) in their business activities. The word Cappadocia (Kapadokya) can not be accepted as exclusive for anyone because Cappadocia (Kapadokya) is a name of a region and it can be used by all the people and companies that are located in this region.

The Respondent Goreme Balonculuk Genel Havacilik Reklamcilik Turizm Sanayi Ticaret A.S. was founded in 1997 to operate hot air balloon flights in the region of Cappadocia. Since 2001 the Respondent has run its balloon operations with the cooperation of the Turkish Aeronautical Association.

According to the Respondent, the Complainant wants to prevent all others (including the Respondent) from using the word Cappadocia (Kapadokya) in their domain names. This cannot be accepted.

The Respondent also argues that the Complainant`s trademark is registered with some other elements like a device.

Regarding the second element the Respondent states that all people who live in the Cappadocia region have rights to use the words "Cappadocia" and Kapadokya". The Respondent adds that due to its business activities - it has the right to use the words "balloon" or "balloons" in its business activities, advertisements, promotions and domain names.

Regarding the bad faith allegations of the Complainant, the Respondent did not accept and argues that the Complainant is in bad faith.

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 registered trademark KAPADOKYA BALLOONS under International class 39 for the services "transport services, balloon transport services etc." In this case, the Panel finds that the trademark KAPADOKYA BALLOONS is distinctive for the services "transport services, balloon transport services etc." under International class 39.

In result and disregarding the gTLD suffix, the Panel therefore concludes that the domain names <kapadokyaballoons.net> and <kapadokyaballoons.org> are identical to the Complainant`s mark KAPADOKYA BALLOONS. Additionally, as "Cappadocia" is the English translation of the Turkish word "Kapadokya", the <cappadociaballooning.com> domain name represents a translated version of the Complainant`s trademark KAPADOKYA BALLOONS (adding only "ing" in the domain name which does not serve to sufficiently distinguish the mark from the domain name). Therefore, <cappadociaballooning.com> is confusingly similar to the Complainant`s 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(b)(ii) of the Policy as explained below, the Complainant has demonstrated a prima facie case of the Respondent`s lack of rights or legitimate interests in the disputed domain names, and the evidentiary burden therefore shifts to Respondent to show persuasive evidence that it does have rights or legitimate interests in the disputed domain names. It appears from the record that both Parties are located in Cappadocia and both Parties engage in the same business.

The Respondent operates its business activity under the trade name Goreme Balonculuk Genel Havacilik Reklamcilik Turizm Sanayi Ticaret A.S., or "Goreme Balloons," and has registered and uses the website at "www.goremeballoons.com". The Complainant states (and the Respondent does not dispute) that the Complainant began its business activities in 1994, three years before the Respondent who conducts business in the same region and service industry.

There is no evidence that the Respondent has been commonly known by the disputed domain names, nor has the Respondent demonstrated any trademark or service mark rights to the domain names. The Complainant has also shown that the Respondent has neither a license nor any other permission to use the disputed domain names.

The Respondent states however that its right to the disputed domain names derives from its residing in the Cappadocia (Kapadokya) region and providing hot air balloon transportation services therein.

In such a case as the present, where the Respondent has registered domain names that combine descriptive or geographic terms that directly correspond to the Complainant`s mark, the question essentially becomes one of intent. As stated by the panel in Institut Gestalt, S.L. v. Joan Cintero S.L., WIPO Case No. D2008-1842, "the outcome often boils down to a question of whether the Panel accepts that the Respondent registered the domain names with their descriptive or potentially generic value in mind, or whether the Respondent did so intending to target the Complainant. […] On a balance of the probabilities, in this case, the Panel accepts the Complainant`s assertions in respect of the real goal of the Respondent: to attract Internet consumers to his website as a competitor of the Complainant."

In the present case, the Respondent opening and operating a business in the same region and service industry three years after the Complainant evinces a strong undisputed likelihood that the Respondent was well aware of the existence of and activities run by the Complainant at the time of the registration of the disputed domain names. Moreover, the Respondent has used its own domain name at "www.goremeballoons.com" to advertise the provision of its own competing services. Additionally, it does not escape the Panel`s notice that it is to this website (which according to a WhoIs search was created on June 8, 2001, the same year in which the Respondent states it began to "run its balloon operations") to which the three disputed domain names are being re-directed. As such, the Panel finds that on the balance of probabilities, the Respondent registered the domain names not just with knowledge but also with the intent of targeting the Complainant`s mark.

The Panel therefore concludes that Respondent has no rights or legitimate interests in the domain names <kapadokyaballoons.net>, <kapadokyaballoons.org> and <cappadociaballooning.com> and that the requirement of the UDRP paragraph 4(a)(ii) is satisfied.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy provides a list of indicative circumstances that suggest bad faith registration, however, such list is not exhaustive and a finding of bad faith depends on the circumstances of each case.

As mentioned above, taking into account the shared location of the Parties` businesses and the commencement of the Respondent`s hot air balloon transportation services at least three years after the Complainant, it is reasonable to infer that that when the Respondent registered the disputed domain names, it knew that the domain names corresponded to the trademarks of the Complainant. As such, the Panel finds in light of the present circumstances that it was likely the aim of the Respondent to take advantage of the potential confusion between the disputed domain names and the Complainants` trademark at the time of the registration of the disputed domain names. (See Institut Gestalt, S.L. v. Joan Cintero S.L., supra).

Moreover, the disputed domain names are being re-directed to a website owned by the Respondent, the competitor of the Complainant, evidencing in the Panel`s view the Respondent`s bad faith use. All these acts demonstrate that the Respondent, by using the disputed domain name, had intentionally attempted to attract, for commercial gain, Internet users to the website at the disputed domain name, by creating a likelihood of confusion with the Complainant`s mark as to the source, sponsorship, affiliation, or endorsement of the website at the disputed domain names or the services on the website of the disputed domain names, as provided in the Policy, paragraph 4(b)(iv).

Additionally, the Panel notes that the while the Respondent has raised issues concerning the Complainant`s registration of an additional domain name possibly corresponding to the Respondent`s trade name, this domain name is not presently disputed in the current action before the Panel. The Panel therefore makes no findings in this regard.

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 <kapadokyaballoons.net>, <kapadokyaballoons.org> and <cappadociaballooning.com> be transferred to the Complainant.

Dilek Ustun
Sole Panelist

Dated: July 10, 2009