Mukadderat Yildiz, Trading as Taurean Properties v. Calisvilla c/o Keith Campbell
Claim Number: FA0708001065611
Complainant is Yildiz Mukadderat Yildiz, Trading as Taurean
Properties (“Complainant”), Foça Mahallesi,
Barış Manço Bulvarı, 89/12, Fethiye / Muğla, Türkiye. Respondent is Calisvilla c/o Keith
Campbell (“Respondent”),
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <taureanproperties.com>, registered with Computer Services Langenbach Gmbh d/b/a Joker.com.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Honorable Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 18, 2007; the National Arbitration Forum received a hard copy of the Complaint on August 28, 2007.
On August 23, 2007, Computer Services Langenbach Gmbh d/b/a Joker.Com confirmed by e-mail to the National Arbitration Forum that the <taureanproperties.com> domain name is registered with Computer Services Langenbach Gmbh d/b/a Joker.Com and that Respondent is the current registrant of the name. Computer Services Langenbach Gmbh d/b/a Joker.Com has verified that Respondent is bound by the Computer Services Langenbach Gmbh d/b/a Joker.Com registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On September 7, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 27, 2007 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@taureanproperties.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On October 5, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (Ret.) as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <taureanproperties.com> domain name is identical to Complainant’s Taurean Properties mark.
2. Respondent does not have any rights or legitimate interests in the <taureanproperties.com> domain name.
3. Respondent registered and used the <taureanproperties.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Mukadderat Yildiz, Trading as Taurean Properties, has been using the Taurean Properties mark in connection with its real estate business since January of 2003. Complainant has also registered the <taureanproperties.co.uk> and <taureanproperties.eu> domain names, which it uses in connection with the sale of properties and related services.
Respondent registered the <taureanproperties.com> domain name on March 3, 2004, at which time Respondent was a minority shareholder in Complainant’s company. Respondent registered the disputed domain name “for and on behalf of” Complainant. Respondent then left Complainant’s company and is now using the <taureanproperties.com> domain name to redirect Internet users to Respondent’s competing real estate agency located at the <calis-beach.co.uk/taureanproperties.htm> domain name.
Paragraph 15(a) of the Rules instructs this 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."
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
Complainant is not required under Policy ¶ 4(a)(i) to hold a registered trademark in the Taurean Properties mark. Common law rights are sufficient to satisfy
Policy ¶ 4(a)(i).
See SeekAmerica Networks
Inc. v. Masood, D2000-0131 (WIPO Apr. 13, 2000) (finding that the Rules do
not require that the complainant's trademark or service mark be registered by a
government authority or agency for such rights to exist); see also British Broad. Corp. v.
Renteria, D2000-0050 (WIPO Mar. 23, 2000) (noting
that the Policy “does not distinguish between registered and unregistered
trademarks and service marks in the context of abusive registration of domain
names” and applying the Policy to “unregistered trademarks and service marks”).
Complainant has established common law rights in the Taurean Properties mark through extensive and continuous commercial use of the mark since January of 2003. The Panel finds that such continuous use of the mark has established substantial consumer recognition and secondary meaning in the Taurean Properties mark sufficient to establish rights in the mark under Policy ¶ 4(a)(i). See Tuxedos By Rose v. Nunez, FA 95248 (Nat. Arb. Forum Aug. 17, 2000) (finding common law rights in a mark where its use was continuous and ongoing, and secondary meaning was established); see also Keppel TatLee Bank v. Taylor, D2001-0168 (WIPO Mar. 28, 2001) (“[O]n account of long and substantial use of [KEPPEL BANK] in connection with its banking business, it has acquired rights under the common law.”).
Respondent’s <taureanproperties.com> domain name is identical to
Complainant’s Taurean Properties
mark as it uses the mark in its entirety and merely adds the generic top-level
domain (“gTLD”) “.com” to the mark. The
Panel finds that an addition of a gTLD is irrelevant to the determination of
whether a domain name is identical to the mark.
The Panel thus finds that Respondent’s disputed domain name is identical
to Complainant’s mark under Policy ¶ 4(a)(i). See Rollerblade, Inc. v. McCrady,
D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name
such as “.net” or “.com” does not affect the domain name for the purpose of
determining whether it is identical or confusingly similar); see also Fed’n of Gay Games, Inc. v. Hodgson, D2000-0432 (WIPO June 28, 2000) (finding that
the domain name <gaygames.com> is identical to the complainant's
registered trademark GAY GAMES).
The Panel finds that
Policy ¶ 4(a)(i) has been satisfied.
Complainant asserts that Respondent does not have rights or legitimate interests in the <taureanproperties.com> domain name. Complainant’s submission establishes a prima facie case, which shifts the burden to Respondent to prove that it has rights in the disputed domain name under Policy ¶ 4(a)(ii). See AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interest in the subject domain names.”); see also Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name).
The Panel may assume that Respondent has no rights or legitimate interests here because Respondent failed to respond to the Complaint. See Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's failure to respond not only results in its failure to meet its burden, but also will be viewed as evidence itself that Respondent lacks rights and legitimate interests in the disputed domain name.”); see also Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests where the respondent fails to respond). However, the Panel will consider all available evidence before determining whether Respondent has rights in the <taureanproperties.com> domain name under Policy ¶ 4(c).
Complainant contends that Respondent is using the disputed
domain name to redirect Internet traffic to a separate website that offers
Respondent’s competing goods and services.
The Panel finds that such use by Respondent is not a use in connection
with a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use under Policy
¶ 4(c)(iii). See Computerized Sec.
Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (“Respondent’s
appropriation of [Complainant’s] SAFLOK mark to market products that compete
with Complainant’s goods does not constitute a bona fide offering of goods and
services.”); see also Glaxo Group Ltd. v. WWW Zban, FA 203164 (Nat. Arb. Forum Dec. 1, 2003) (finding that
the respondent was not using the domain name within the parameters of Policy ¶
4(c)(i) or (iii) because the respondent used the domain name to take advantage
of the complainant's mark by diverting Internet users to a competing commercial
site).
Further, Respondent offers no evidence and no evidence is present in the record to indicate that Respondent is commonly known by the <taureanproperties.com> domain name. Respondent’s WHOIS information identifies Respondent as “Calisvilla c/o Keith Campbell.” Therefore, the Panel finds that Respondent has failed to establish rights or legitimate interests in the disputed domain name under Policy ¶ 4(c)(ii). See Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’ Given the WHOIS domain name registration information, Respondent is not commonly known by the [<awvacations.com>] domain name.”); see also M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record).
The Panel finds that Policy ¶ 4(a)(ii)
has been satisfied.
Respondent has registered and is using the <taureanproperties.com> domain name, which is identical to Complainant’s Taurean Properties mark, to redirect Internet users to Respondent’s competing real estate website. The Panel finds Respondent’s use of the disputed domain name to redirect Internet users to its competing website constitutes a disruption of Complainant’s business, which the Panel finds is evidence of bad faith registration and use under Policy ¶ 4(b)(iii). See DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”); see also Classic Metal Roofs, LLC v. Interlock Indus., Ltd., FA 724554 (Nat. Arb. Forum Aug. 1, 2006) (finding that the respondent registered and used the <classicmetalroofing.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iii) by redirecting Internet users to the respondent’s competing website).
Additionally, Complainant contends that Respondent is using the <taureanproperties.com> domain name to redirect Internet users to Respondent’s competing website for the profit of Respondent. The Panel finds that Internet users seeking Complainant’s goods and services may become confused as to Complainant’s affiliation with Respondent’s website. Presumably, Respondent is profiting from this confusion through the acquisition of Complainant’s customers. Therefore, the Panel finds that Respondent registered and is using the disputed domain name in bad faith under Policy ¶ 4(b)(iv). See BPI Comm’cns, Inc. v. Boogie TV LLC, FA 105755 (Nat. Arb. Forum Apr. 30, 2002) (“Complainants are in the music and entertainment business. The links associated with <billboard.tv> and <boogie.tv> appear to be in competition for the same Internet users, which Complainants are trying to attract with the <billboard.com> web site. There is clearly a likelihood of confusion between <billboard.tv> and BILLBOARD as to the source, sponsorship, affiliation, or endorsement of the web site or of a product or service on the web site.”); see also Velv, LLC v. AAE, FA 677922 (Nat. Arb. Forum May 25, 2006) (finding that the respondent’s use of the <arizonashuttle.net> domain name, which contained the complainant’s ARIZONA SHUTTLE mark, to attract Internet traffic to Respondent’s website offering competing travel services violated Policy ¶ 4(b)(iv)).
The Panel finds that Policy ¶ 4(a)(iii)
has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <taureanproperties.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: October 16, 2007
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum