Yurtici Kargo Servisi A.S. v. Yurticicargo Yurticikargo

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Yurtici Kargo Servisi A.S. v. Yurticicargo Yurticikargo

Case No. D2003-0707

1. The Parties

The Complainant is Yurtici Kargo Servisi A.S., Istanbul, of Turkey, represented by Özlem Soylu, Turkey.

The Respondent is Yurticicargo Yurticikargo, of Turkey.

2. The Domain Name and Registrar

The disputed domain name <yurticicargo.com> is registered with iHoldings.com Inc. d/b/a DotRegistrar.com.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on September 8, 2003. On September 9, 2003, the Center transmitted by email to iHoldings.com Inc. d/b/a DotRegistrar.com a request for registrar verification in connection with the domain name at issue. On September 9, 2003, iHoldings.com Inc. d/b/a DotRegistrar.com transmitted by email to the Center its verification response. 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 September

18, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response

was October 8, 2003. The Respondent did not submit any response. Accordingly,

the Center notified the Respondent’s default on October 9, 2003.

The Center appointed Harini Narayanswamy as the sole panelist in this matter

on October 15, 2003. 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.

The Complainant had represented to the Panel that it wished to make a supplemental

filing, which was allowed by the Panel and received by the Center on October 21, 2003.

4. Factual Background

The Complainant "Yurtici Kargo Servisi A.S " is a Turkish company rendering

transportation and cargo services since 1982. It has its principal place of

business in Istanbul.

The Complainant is the owner of the trademark "YURTICI KARGO" (and device),

bearing registration No. 99 011341, for transportation services in class 39,

registered with the Turkish Patent Office on July 14, 1999.

The Respondent is the registrant of the domain name <yurticicargo.com>.

The postal address of the Respondent and its contact details, as contained

in the Registrar’s data, are incorrect.

The Complainant has filed a print out of the content of the website available

at "www.yurticicargo.com", which displays, in Turkish, the website of a cargo

business called "Aras Cargo". The website also prominently displays that the

domain name <yurticicargo.com> is for sale.

The Complainant has provided as a supplemental filing, documentary evidence

of a translated e-mail correspondence, dated October 3, 2003, received from

the Respondent, where the Respondent offers to transfer the domain name to the

Complaint for a sum of TL 7.5 Billion.

5. Parties’ Contentions

A. Complainant

The Complainant states that: the domain name <yurticicargo.com> is identical

or confusingly similar to the trademark " YURTICI KARGO" in which the Complainant

has exclusive rights; and that the Respondent has no rights or legitimate interests

with respect to the domain name. The disputed domain name was registered and

is being used in bad faith by the Respondent.

The Complainant states that the domain name, has been offered for sale on the

website, which also hosts the contents of another cargo company called "Aras

Cargo". The Complainant alleges that the Respondent has no right or legitimate

interests in the said domain name or the trademark, as the Complainant has no

connection with the Respondent. The domain name was registered primarily for

the purpose of selling or otherwise transferring it to the Complainant for valuable

consideration in excess of the Respondent’s out-of-pocket costs directly related

to the domain name, and the fact that the Respondent has supplied false contact

information to the Registrar shows bad faith registration and use of the domain

name.

The Complainant requests that the Administrative Panel issue a decision that

the domain name <yurticicargo.com> be transferred to the Complainant.

B. Respondent

The Respondent did not file any reply to the Complaint, despite the fact that

the Center, in compliance with paragraphs 2(a) and 4(a) of the Rules, has formally

notified the Respondent of the commencement of proceedings and sent a copy of

this Complaint to the Respondent. The Panel is convinced that the Respondent

has been notified of these proceedings by the Center and has not been denied

its right to be heard in these proceedings.

6. Discussion and Findings

The Policy, at paragraph 4 (a) states that the following three elements should

be present in order for the Complainant to succeed in these proceedings.

(i) The domain name should be identical or confusingly similar to a trademark

in which the Complainant has rights;

(ii) The Respondent has no rights or legitimate interests in the domain name;

(iii) The domain name has been registered and is used in bad faith.

Each of these aspects of the present case is discussed below:

A. Identical or Confusingly Similar

The domain name <yurticicargo.com> differs from the Complainant’s trademark

"YURTICI KARGO" only with respect to the way the word cargo is spelt. The disputed

domain name uses the letter "C" in place of the letter "K", in the

trademark. The trademark comprises of an invented word ‘Kargo’ combined with

the name Yurtici.

It has become common practice for potential infringers to register domain names

with minor spelling variations, a phenomenon which is now commonly referred

to as "typosquatting". In the present case, the typosquatting has been done

in a strategic manner, by replacing a key letter with a phonetically similar

letter to make the invented word in the trademark a common dictionary word.

The likelihood of confusion with the trademark in such a case is higher, the

domain name is virtually phonetically similar to the mark.

It is now fairly well established that domain names have been held to be confusingly

similar to trademarks, when some letters have been interchanged or replaced

with a phonetically similar letter in order to create confusion in the minds

of users, see WIPO Case No. D2000-0323.

Other cases of typosquatting are Playboy Enterprises v. Movie Name Company,

WIPO Case No. D2001-1201, Yahoo!

Inc. and GeoCities v. Data Art Corp., DataArt Enterprises, Inc., StonybrookInvestments,

Global Net 2000, Inc., Powerclick, Inc., and Yahoo Search, Inc., WIPO

Case No. D2000-0587, Hobsons, Inc. v. Peter Carrington a/k/a/ Party Night

Inc., WIPO Case No. D2003–0317.

In determining confusing similarity the addition of the graphic elements in

the trademark are disregarded as it cannot be reproduced in a domain name and

have been previously held to be without legal significance in determining similarity.

(See WIPO Case No. D2001-0032).

The disputed domain name <yurticicargo.com> has the potential to cause

confusion both phonetically and visually, with the Complainant’s trademark.

The Panel therefore concludes that the domain name is confusingly similar to

a trademark or service mark in which the Complainant has prior exclusive rights.

B. Rights or Legitimate Interests

It is evident from the contents of the website and from the email communication

sent by the Respondent to the Complainant, that the Respondent has no legitimate

right or interest in the trademark or the domain name. The domain name is being

used by the Respondent to divert users to the webpage of another cargo company.

The Complainant has stated that the website hosts the details of a company known

as ‘Aras’ Cargo. When the Panel visited the website on October 17, 2003, the

name of the company displayed on the site was ‘MNG’ Cargo. It is clear that

the Respondent is using the domain name to display on the website publicity

material for other cargo companies, by using a name in which the Respondent

has no legitimate right or interest.

The Respondent has stated in an email communication dated October 3, 2003,

to the Complainant "You ( Complainant) are the number one in the cargo

sector. Any direction of the yurticargo.com to other sites is not received well

by your customers …. The value of this site is TL 7.5 billion". Clearly

the Respondent has tried to derive commercial value from the domain name of

a leading provider of cargo services in Turkey. Since the Respondent is also

from Turkey, the fame of the mark is known to the Respondent, who has used the

name belonging to Yurtici Kargo, to attract customers to a website, which action

of the Respondent is not received well by the mislead customers.

The other circumstances of the case, also, do not show bonafide action

on the part of the Respondent. The Respondent has given a false address and

most likely a false name, further the Respondent has failed to reply. All these

facts and circumstances give rise to an inference that the Respondent has no

legitimate right to the domain name.

Paragraph 14(b) of the Rules provides that, in the absence of exceptional circumstances,

a Panel shall draw such inferences as it considers appropriate from the failure

of a party to comply with a provision or requirement of the Rules. The Administrative

Panel draws from this failure the following inferences: (i) the Respondent

does not deny the facts which are asserted by the Complainant, and (ii) the

Respondent does not deny the inferences which the Complainant has drawn from

these facts.

The Respondent has not provided evidence to the Panel as specified in paragraph

4(c) of the Policy, nor can the Panel find any other circumstances giving

rise to a right or legitimate interest in the Domain Name. The Complainant states

that the Respondent has neither a license nor any other permission to use the

domain name in dispute. In the light of the facts and circumstances discussed

above and in the absence of evidence brought forward by the Respondent, the

Panel concludes that the Respondent has no rights or legitimate interests in

the domain name <yurticicargo.com> and that the requirement of the Policy

Paragraph 4(a) (ii) is satisfied.

c. Bad faith (paragraph 4 (a) (iii))

Paragraph 4 (b) of the Policy lists out the circumstances, in particular and

without limitation, which shall be considered to be evidence of registration

and use of the domain name in bad faith. One of the circumstances is if the

domain name was registered or acquired primarily for the purpose of selling,

renting, or otherwise transferring the domain name registration for a valuable

consideration in excess of the Respondent’s out-of-pocket expenses (Paragraph

4 (b) (i)).

The Respondent’s e-mail of October 3, 2003, and the message displayed on the

Respondent’s website available at "www.yurticicargo.com" are obvious offers

to sell the domain name to the Complainant. The sum of TL 7.5 Billion is clearly

a sum in excess of the costs for obtaining, registering and maintaining the

domain name.

Such use of the domain name is use of the type contemplated by Paragraph 4(b)(i)

of the Policy, and accordingly is sufficient ground to persuade the Administrative

Panel that the domain name <yurticicargo.com> was registered and is being

used by the Respondent in bad faith.

Further, supplying of false information has been held to be bad faith registration.

(See WIPO Case No. D2002-0155).

The Panel therefore concludes that the Respondent registered and is using the

domain name <yurticicargo.com> in bad faith and that the requirement of

Paragraph 4(a) (iii) of the Policy is satisfied.

6. Decision

The Panel finds that:

The domain name <yurticicargo.com> is confusingly similar to the Complainant's

trademark. The Respondent has no rights or legitimate interest with respect

to the domain name. The domain name has been registered and is being used in

bad faith by the Respondent.

Pursuant to paragraph 4(i) of the Policy and Paragraph 15 of the Rules, the

Panel requires that the Registrar transfer the domain name <yurticicargo.com>

to the Complainant.

Harini Narayanswamy

Sole Panelist

Dated: October 24, 2003

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