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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Kapadokya Balonculuk Turizm Ticaret Ltd. ЕћTД°. v. Atakan Ceyhan, Гњrgãp Turizm ve Seyahat Acentasi

Case No. D2009-0621

1. The Parties

The Complainant is Kapadokya Balonculuk Turizm Ticaret Ltd. ŞTİ.of Göreme Nevşehir, Turkey, represented by Fevzi Çamli, Turkey.

The Respondent is Atakan Ceyhan, Гњrgãp Turizm ve Seyahat Acentasi of Гњrgãp NevЕџehir, Turkey.

2. The Domain Names and Registrars

The disputed domain name <cappadociaballoon.net> is registered with FBS Inc. while the domain name <cappadociaballoon.org> is registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on May 8, 2009. On May 11, 2009, the Center transmitted by email to FBS Inc. and Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com a request for registrar verification in connection with the disputed domain names. On May 15, 2009 and May 19, 2009, Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com and FBS Inc., respectively transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on May 26, 2009. On June 10, 2009 the Complainant submitted further amendment to the Complaint. The Center verified that the Complaint together with the amendments 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 11, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was July 1, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent`s default on July 2, 2009.

The Center appointed Dilek Ustun as the sole panelist in this matter on July 6, 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, which is a limited liability company operating hot air ballooning services for 15 years, is the registered owner of the service mark KAPADOKYA BALLOONS since April 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 domain names in dispute <cappadociaballoon.org> and <cappadociaballoon.net> are confusingly similar with the registered service mark of the Complainant. 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 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 domain names in dispute. They are known either as "Urgup Travel" or "Urgup Tourism and Travel", which is their own registered company name.

Besides, they already have two active websites to promote their own services in line with their registered service mark at the URLs: "http://www.urgupturizm.com.tr" and "http://www.urguptravel.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 to make commercial gain by using these domain names.

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 4(a)(iii) of the Policy. Both domain names were registered on February 5, 2008, almost 9 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 very 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, not to be aware of the Complainant and the services they provide under the registered trademark KAPADOKYA BALLOONS.

The Complainant also states that since the Respondent is a direct competitor of the Complainant, by using the domain names, the Respondent intentionally attempted to attract Internet users to its website for unfair commercial gain. The first domain name <cappadociaballoon.org> resolves to a web site titled "Cappadocia Balloons", in which it is stated that "Cappadocia Balloon is a product of URGUP TOURISM & TRAVEL AGENCY company" in small fonts at the bottom of the page. Thus, the Respondent`s actions, 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.

The Complainant also states that the Respondent is actually pretending to be the Complainant in e-mail communications with potential clients, in which he sent the company profile and flight rates of the Complainant as its own details, and through some hand-out brochures. The Complainant became aware of this fact after hearing stories from disappointed and misled passengers looking for schedule balloon flights, who thought that they were communicating with the Complainant, who has 15 years of strong reputation for satisfying and meeting customer expectations.

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 registered trademark KAPADOKYA BALLOONS under international class 39 for transport services, balloon transport services e.t.c. In this case, the Panel finds that the trademark KAPADOKYA BALLOONS is distinctive for transport services, balloon transport services e.t.c under international class 39. The Panel notes that "Cappadocia" is the English translation for the Turkish "Kapadokya".

As a result, the Panel therefore concludes that the domain names <cappadociaballoon.net> and <cappadociaballoon.org> are 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(c) of the Policy, what the Respondent has done to date in relation to the disputed domain name is not a bona fide offering of goods or services.

The Respondent operates its business activity under the trade name Гњrgãp Turizm ve Seyahat Acentasi/ "Urgup Tourism and Travel", which is their own registered company name. The Respondent has two active websites to promote their own services in line with their registered service mark at the URLs: "http://www.urgupturizm.com.tr" and "http://www.urguptravel.com".

There is no evidence whatsoever 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 names.

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 rights or legitimate interests in the domain names. The Complainant showed that the Respondent has neither a license nor any other permission to use the domain names in dispute.

The Panel therefore concludes that the Respondent has no rights or legitimate interests in the domain names <cappadociaballoon.net> and <cappadociaballoon.org> 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, it is reasonable to infer that that when the Respondent registered the disputed domain names, it likely knew that the domain names corresponded to the trademarks of the Complainant. The Panel, in accordance with previous decisions issued under the Policy, is of the opinion that this knowledge of the Complainants` trademark at the time of the registration of the disputed domain names may be considered as an indication of bad faith (see Parfums Christian Dior v. Javier Garcia Quintas and Christiandior.net, WIPO Case No. D2000-0226).

On the contrary the Complainant states that the first domain name <cappadociaballoon.org> does not resolve to any web page. However, the Complaint`s annexes show otherwise. The Respondent`s web site at which the domain name is located is titled "Cappadocia Balloons", in which it is stated that "Cappadocia Balloon is a product of URGUP TOURISM & TRAVEL AGENCY Company". Thus, the Respondent`s actions, constitutes not only an infringement on 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.

The annexes also shows that the Respondent was pretending to be the Complainant in e-mail communications with potential clients, in which he sent the company profile and flight rates of the Complainant as its own details, and through some hand-out brochures. This proves that the Respondent has registered and used the domain names primarily for the purpose of disrupting the business of a competitor and by using the domain names, the Respondent has intentionally attempted to attract, for commercial gain Internet users to the website at the disputed domain names, 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).

In view of the above, the Panel finds that the Respondent has registered and used the domain names in bad faith, in accordance with paragraph 4(a)(iii) 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.net> and <cappadociaballoon.org> be transferred to the Complainant.

Dilek Ustun
Sole Panelist

Dated: July 20, 2009