Fossil Group, Inc. v. Tamer Guleryuz
Claim Number: FA1404001553756
Complainant is Fossil Group, Inc. (“Complainant”), represented by Molly Buck Richard of Richard Law Group, Inc., Texas, USA. Respondent is Tamer Guleryuz (“Respondent”), Turkey.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <fossilsaat.org>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com (R27-LROR).
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 11, 2014; the National Arbitration Forum received payment on April 11, 2014.
On April 14, 2014, PDR Ltd. d/b/a PublicDomainRegistry.com (R27-LROR) confirmed by email to the National Arbitration Forum that the <fossilsaat.org> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (R27-LROR) and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com (R27-LROR) has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com (R27-LROR) registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On April 14, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 5, 2014 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@fossilsaat.org. Also on April 14, 2014, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On May 8, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David E. Sorkin 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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
Complainant sells watches, jewelry, clothing, accessories, and related goods and services through its retail stores and website using the trademark FOSSIL, which is registered in the United States, Turkey, and elsewhere. Complainant has used its mark continuously since at least as early as 1985, and its products are sold in more than 90 countries. The disputed domain name <fossilsaat.org> incorporates Complainant’s FOSSIL mark along with the word “saat,” which Complainant states is Turkish for “watch” or “clock.” Complainant contends that the domain name is confusingly similar to its mark.
Complainant further contends that Respondent has no rights or legitimate interests in the disputed domain name. Complainant states that Respondent is not commonly known by the FOSSIL mark, and alleges that Respondent has not used the domain name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use. The disputed domain name resolves to a website that prominently displays Complainant’s logo and information about Complainant’s products, with no other identifying information, leading visitors to believe that it is Complainant’s official website for Turkey.
Finally, Complainant contends that the disputed domain name was registered and is being used in bad faith. Complainant alleges that Respondent intentionally adopted a domain name incorporating Complainant’s mark in order to create an association with Complainant and its products for commercial gain. Complainant also accuses Respondent of using the domain name in an attempt to obtain personal information from Internet users for commercial purposes.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and has been used in bad faith.
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."
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.
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.”).
The disputed domain name combines Complainant’s FOSSIL mark with the generic term “saat,” which corresponds to a category of products sold by Complainant, and the top-level domain suffix “.org”. These additions do not diminish the similarity between the domain name and Complainant’s mark. See, e.g., Fossil, Inc. v. www.fossil-watch.org c/o Host Master, FA 335513 (Nat. Arb. Forum Nov. 9, 2004) (finding <fossil-watch.org> confusingly similar to FOSSIL). The Panel finds that the disputed domain name is confusingly similar to Complainant’s mark.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant’s mark without authorization, and apparently its sole use has been in connection with a website aimed at creating confusion among Internet users as to its association with Complainant. Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and has been used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name “primarily for the purpose of disrupting the business of a competitor.” Under paragraph 4(b)(iv), bad faith may be shown by evidence that “by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent’s] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent’s] web site or location or of a product or service on [Respondent’s] web site or location.”
Respondent is using a domain name that incorporates Complainant’s famous mark for a website that displays Complainant’s logo and otherwise appears designed to confuse Internet users into believing that it is associated with Complainant, presumably for commercial gain. Absent any indication to the contrary, the Panel infers that Respondent registered the domain name with this purpose in mind. Such use is indicative of bad faith under paragraphs 4(b)(iii) and 4(b)(iv) of the Policy. See, e.g., iHerb, Inc. v. emma hong, FA 1553252 (Nat. Arb. Forum May 7, 2014); Fossil, Inc. v. www.fossil-watch.org c/o Host Master, supra. The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <fossilsaat.org> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: May 12, 2014
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