Oracle International Corporation v. mutlu yılmaz
Claim Number: FA2007001904547
Complainant is Oracle International Corporation (“Complainant”), represented by Steven M. Levy of FairWinds Partners LLC, District of Columbia, United States. Respondent is mutlu yılmaz (“Respondent”), Turkey.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <oraclecolud.net>, registered with GoDaddy.com, LLC.
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 16, 2020; the Forum received payment on July 16, 2020.
On July 17, 2020, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <oraclecolud.net> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 July 20, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 10, 2020 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@oraclecolud.net. Also on July 20, 2020, the Written Notice of the Complaint, notifying Respondent of the e-mail 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 Forum transmitted to the parties a Notification of Respondent Default.
On August 12, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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 contends as follows:
Complainant, Oracle International Corporation, is a company that develops and markets software products.
Complainant asserts rights in the ORACLE and ORACLE CLOUD marks through its registration of such marks with multiple trademark agencies, including the United States Patent and Trademark Office (“USPTO”).
Respondent’s <oraclecolud.net> domain name is confusingly similar to Complainant’s mark, as the domain name incorporates the ORACLE CLOUD in its entirety, merely misspelling “cloud” and adding the “.net” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <oraclecolud.net> domain name. Respondent is not commonly known by the at-issue domain name nor has Complainant authorized Respondent’s use of the ORACLE CLOUD mark. Additionally, Respondent fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent fails to make any active use of the domain name’s resolving website.
Respondent registered and uses the <oraclecolud.net> domain name in bad faith. Respondent has a history of bad faith registration of domain names. Respondent’s registration of Complainant’s famous mark in order to create initial interest confusion evinces a finding of bad faith. Additionally, Respondent’s failure to make an active use of the domain name further shows bad faith. Finally, Respondent had knowledge of Complainant and its rights in the mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in the ORACLE CLOUD mark.
Respondent has not been authorized to use any of Complainant’s trademarks.
Respondent registered the at-issue domain name after Complainant acquired rights in ORACLE CLOUD.
Respondent holds the <oraclecolud.net> domain name passively.
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(f), 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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The at-issue domain is confusingly similar to a trademark in which Complainant has rights.
Complainant’s USPTO registration, as well as its other worldwide registrations of its ORACLE CLOUD mark, establishes Complainant’s rights in such mark for the purposes of Policy ¶ 4(a)(i). See Vanguard Trademark Holdings USA LLC v. Wang Liqun, FA 1625332 (Forum July 17, 2015) (finding, “Registration of a mark with a governmental authority (or, in this case, multiple governmental authorities) is sufficient to establish rights in the mark for purposes of Policy ¶4(a)(i)”).
The at-issue domain name contain Complainant’s ORACLE CLOUD trademark less its domain name impermissible space and with its second “L” and “O” transposed, all followed by the top level domain name “.net.” The differences between Respondent’s <oraclecolud.net> domain name and Complainant’s ORACLE trademark are insufficient to distinguish the domain name from Complainant’s mark under Policy ¶ 4(a)(i). Therefore, the Panel finds that Respondent’s <oraclecolud.net> domain name is confusingly similar to Complainant’s ORACLE trademark. See Bank of America Corporation v. Above.com Domain Privacy, FA 1629452 (Forum Aug. 18, 2015) (finding that the <blankofamerica.com> domain name contains the entire BANK OF AMERICA mark and merely adds the gTLD ‘.com’ and the letter ‘l’ to create a common misspelling of the word ‘bank.’).
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of <oraclecolud.net>.
The WHOIS information for the at-issue domain name identifies the domain name’s registrant as “mutlu yilmaz” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by the at-issue domain name. The Panel therefore concludes that Respondent is not commonly known by the <oraclecolud.net> domain name for the purposes of Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Additionally, Respondent holds the at-issue domain name passively. Respondent’s failure to make any active use of the domain name indicates neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See Activision Blizzard, Inc. / Activision Publishing, Inc. / Blizzard Entertainment, Inc. v. Cimpress Schweiz GmbH, FA 1737429 (Forum Aug. 3, 2017) (“Complainant insists that Respondent has made no demonstrable preparations to use the disputed domain name. When Respondent is not using the disputed domain name in connection with an active website, the Panel may find that Respondent is not using the disputed domain name for a bona fide offering of goods or services… As Respondent has not provided a response to this action, Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain.”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶ 4(a)(ii).
Respondent’s <oraclecolud.net> domain name was registered and used in bad faith. As discussed below without limitation, bad faith circumstances are present which compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
First, Respondent has suffered multiple adverse UDRP decisions as a respondent. Respondent’s prior cybersquatting shows a pattern pursuant to Policy ¶ 4(b)(ii) and thus suggests Respondent’s bad faith in the instant case. See Webster Financial Corporation and Webster Bank, National Association v. Above.com Domain Privacy, FA1209001464477 (Forum Nov. 30, 2012) (finding where the record reflected that the respondent had been a respondent in other UDRP proceedings in which it was ordered to transfer disputed domain names to various complainants established a pattern of bad faith registration and use of domain names and stood as evidence of bad faith in the registration and use of domain names under Policy ¶ 4(b)(ii)).
Next and as mentioned above regarding rights and legitimate interests, Respondent holds the at-issue domain name passively. Doing so also indicates Respondent’s bad faith. See Regions Bank v. Darla atkins, FA 1786409 (Forum June 20, 2018) (“Respondent registered and is using the domain name in bad faith under Policy ¶ 4(a)(iii) because Respondent uses the domain name to host an inactive website.”).
Furthermore, Respondent registered <oraclecolud.net> knowing that Complainant had trademark rights in ORACLE CLOUD. Respondent’s prior knowledge is evident from the notoriety of Complainant’s trademark as well as from Respondent’s overt misspelling of the mark within the <oraclecolud.net> domain name. See AutoZone Parts, Inc. v. Ken Belden, FA 1815011 (Forum Dec. 24, 2018) (“Complainant contends that Respondent’s knowledge can be presumed in light of the substantial fame and notoriety of the AUTOZONE mark, as well as the fact that Complainant is the largest retailer in the field. The Panel here finds that Respondent did have actual knowledge of Complainant’s mark, demonstrating bad faith registration and use under Policy ¶ 4(a)(iii).”). It is thus clear that Respondent intentionally registered the at-issue domain name to improperly exploit its trademark value, rather than for some benign reason. Respondent’s prior knowledge of Complainant's trademark rights indicates that Respondent registered and passively used the <oraclecolud.net> domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had "actual knowledge of Complainant's mark when registering the disputed domain name").
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <oraclecolud.net> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: August 12, 2020
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