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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Onur Air Tasimacilik A.S. v. Osman Bayazit Genc

Case No. D2009-0765

1. The Parties

The Complainant is Onur Air Tasimacilik A.S., Istanbul, Turkey, represented by Gur Law & IP Firm, Turkey.

The Respondent is Osman Bayazit Genc, Istanbul, Turkey, represented by Hakan Kamil Cetinkaya, Turkey.

2. The Domain Name and Registrar

The disputed domain name <onurair.com> is registered with eNom, Inc.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on June 11, 2009. On June 11, 2009, the Center transmitted by email to eNom a request for registrar verification in connection with the disputed domain name. On June 11, 2009, eNom transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that 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 22, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was July 12, 2009. The Response was filed with the Center on July 12, 2009.

The Center appointed GГ¶khan GГ¶kçe as the sole panelist in this matter on July 23, 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 Onur Air (Onur Air Tasimacilik A.S.) is an airline company based in Turkey and was established in 1992.

The Complainant owns and uses the trademark ONUR AIR which was registered at the Turkish Patent Institute on March 26, 2007 in class 39 which corresponds to air transport and tourism agency services.

The Complainant is the registered owner of <onurair.com.tr> since July 18, 1997.

The Respondent is a shareholder in Agora Tourism Agency (Agora Turizm ve Ticaret Ltd. Sti.), a travel agent providing all and selling airline tickets. The Respondent registered the disputed domain name <onurair.com> on September 28, 1999.

5. Parties` Contentions

In accordance with paragraph 4(b)(i) of the Policy, the Complainant requests that the domain name <onurair.com> should be transferred to the Complainant.

The Complainant submits the grounds for these proceedings are listed in paragraph 4(a) of the Policy.

A. Complainant

Identical or Confusingly Similar

The Complainant registered its trademark ONUR AIR with the Turkish Patent Institute on March 26, 2007 as evidenced in the trademark certificate No. 2007 15351 exhibited at Annex 3. It is submitted the disputed domain name <onurair.com> is identical to the trademark in which the Complainant has rights.

Rights or Legitimate Interests

The Complainant submits that the Respondent has no rights or legitimate interests in respect of the disputed domain name and the Respondent has never been commonly known by the disputed domain name.

It is submitted there is no evidence of the Respondent`s use of, or demonstrable preparations to use, the domain name in connection with a bona fide offering of goods or services.

The Complainant asserts that the Respondent is not using the disputed domain name for legitimate non commercial or fair use without intent for commercial gain or to misleadingly divert customers.

Registered and Used in Bad Faith

The Complainant states that it is well known in Turkey as it was the first and largest private airline company in Turkey and was established in 1992.

The Complainant at Annex 4 exhibits a warning letter sent to the Respondent regarding prior to receipt of the Complainant`s warning letter the disputed domain name <onurair.com> redirected to the Respondent`s website "www.agoratourism.com". It has been noted that upon receipt of the letter the Respondent changed the use of the domain name and replaced it with a page stating that it is not onur air`s official website providing a link for the user to the Complainant`s official website "www.onuair.com.tr".

The Complainant has provided screenshots of redirection of the disputed domain name to "www.agoratourism.com" at Annex 5 previous to the Respondent`s receiving the warning letter and changing the sites content.

The Complainant submits that the Respondent registered the domain name for the purpose of confusing Internet users and to divert them to the Respondents website for commercial gain. The Complainant contends that the disputed domain name was registered and is being used in bad faith.

B. Respondent

The Respondent filed a Response to the allegations in the Complaint and requests the Panel to deny the remedy requested, namely transfer of the disputed domain name to the Complainant.

Identical or Confusingly Similar

The Respondent claims that he registered the domain name in good faith.

The Respondent notes that the Complainant registered its trademark ONUR AIR on March 26, 2007 almost 8 years after the Respondent`s registration of the disputed domain name.

Rights or Legitimate Interests

The Respondent notes Agora Tourism sells airline tickets on behalf of several other airlines and used to sell tickets on behalf of the Complainant until the contract was unilaterally terminated by the Complainant.

Registered and Used in Bad Faith

The Respondent notes that there are several registered domains containing the trademark ONUR AIR which are diverted to online ticket sales site. The Respondent states that he is not using the disputed domain name to divert to ticket sales and for almost the whole time the disputed domain name has resolved in a page declaring it is not the Complainant`s official website. The Respondent contends this is evidence of good faith.

The Respondent denies any allegation of bad faith and asserts that it did not register the domain name to sell, rent or transfer the domain name to any third parties, the Respondent and Complainant are not competitors and he did not register the domain name primarily to disrupt the Complainant`s business and use of the domain name did not confront the commercial gain of the Complainant.

Reverse Domain Name Hijacking

The Respondent asks the Panel to make a finding of reverse domain name hijacking.

6. Discussion and Findings

A. Identical or Confusingly Similar

The Policy simply requires the Complainant to demonstrate that the disputed domain name is identical or confusingly similar to a trademark in which the Complainant has rights.

At Annex-3, the Complainant provided evidence of trade mark registration with the Turkish Patent Institute, consisting of the words ONUR AIR which were applied for registration on March 26, 2007.

Although the domain name was registered before the Complainant registered its trademark, the Complainant claims it had established rights in the trademark prior to the Respondent`s registration of the disputed domain name.

Furthermore, the Complainant owns "www.onurair.com.tr" which was registered in 1997, two years prior to the Respondent`s registration of the disputed domain name. This could cause confusion amongst Internet users as the only difference with the Respondents domain name is the absence of "tr" otherwise it is identical to the domain name used and owned by the Complainant. It is obvious to the Panel that the Complainant has applied for the domain name <onurair.com.tr> in order to protect its trademark and goodwill.

In view of the foregoing, the Panel finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights, and therefore, the Complainant has succeeded on this first element under the Policy.

B. Rights or Legitimate Interests

The Complainant contends that the Respondent has no right or legitimate interests in the domain name. It is submitted that the Respondent is not commonly known by disputed domain name, there is no evidence of the Respondent`s use of, or demonstrable preparations to use, the domain name in connection with a bona fide offering of goods or services and the Respondent is not using the disputed domain names for legitimate non commercial or fair use without intent for commercial gain misleadingly to divert customers and the Respondent has never been commonly known by the disputed domain name.

The Respondent in response submits he has rights or legitimate interests in the domain name as the company of which he is shareholder used to sell the Complainant`s airline tickets by agreement until such agreement was unilaterally terminated by the Complainant.

In the Panel`s opinion in circumstances as are present here, a business relationship that has ceased does not confer the right to use the trademark as a domain name without permission from the trademark owner. Moreover, the Panel notes that the Respondent also uses the web page for commercial aims other than selling the Complainant`s goods and services, and selling goods and services of companies in direct competition with the Complainant Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903.

The requirements of 4 (a)(ii) are fulfilled and consequently the Panel finds in favour of the Complainant on the second element of the Policy.

C. Registered and Used in Bad Faith

According to Paragraph 4(a)(iii) of the Policy, the Complainant must prove that the disputed domain name has been registered and is being used in bad faith.

The Respondent notes that there are several domain names incorporating the Complainant`s trademark which divert Internet users to airline ticket sales, this is not a defence to bad faith use.

The domain name apparently used to lead to a website selling airline tickets of the Complainant`s competitors. Use of the disputed domain name has been changed to resolve in a page clearly stating it is not the Complainant`s official website. Changing the content of a website after a complaint has been filed does not operate as a defence and may be an indication of bad faith, Adidas AG and Adidas (Ireland) Limited v. Gabor Varga and Jozsef Petho, WIPO Case No. DIE2006-0004.

It is clear that the registration of disputed domain name was in bad faith as the intention behind the registration was to take advantage of the confusingly similar domain name, the Complainant`s rights, and to derive commercial gain from the Complainant`s mark, Kangwon Land, Inc. v. Bong Woo Chun (K.W.L. Inc), WIPO Case No. D2003-0320.

It therefore follows that the Respondent, at the time of registration, must have been aware that such commercial use of the domain name may result in a violation of the Complainant`s trademark rights, suggesting that there was never an intention of good faith use, Telstra Corp. Ltd. v. Nuclear Marshmallows, WIPO Case No. D2000-0003.

There is no suggestion that the Respondent had any intention of legitimate use, that he enjoys a connection to the domain name or that there is conceivable good faith use for the disputed domain name. After examining all circumstances surrounding the registration and use of the domain name, the Panel finds that the Respondent registered and is using the disputed domain name in bad faith. Accordingly the Panel finds in favour of the Complainant on the third element of the Policy.

D. Reverse Domain Name Hijacking

The Respondent has requested that the Panel issue a finding that the Complainant has engaged in an attempt at reverse domain name hijacking. Reverse domain name hijacking is defined in the Rules as "using the Policy in bad faith to attempt to deprive a registered domain-name".

Paragraph 15(e) of the Rules states "If after considering the submissions the Panel finds that the complaint was brought in bad faith, for example in an attempt at Reverse Domain Name Hijacking or was brought primarily to harass the domain-name holder, the Panel shall declare in its decision that the complaint was brought in bad faith and constitutes an abuse of the administrative proceeding."

Reverse domain name hijacking occurs if the Complainant knew or should have known at the time that it filed the Complaint that it could not prove that the domain name was registered in bad faith, Futureworld Consultancy pty Ltd. v. Online Advice, WIPO Case No. D2003-0297. In this case the registration of the disputed domain name was undoubtedly with the intention to misleadingly divert Internet users for commercial gain and therefore the element of bad faith registration is not in issue.

Panels have upheld allegations of reverse domain name hijacking where the registration of the disputed domain name precedes the Complainant`s trademark registration, Carsales.com.au v. Alton L.Flanders, WIPO Case No. D2004-0047. Although the Complainant`s trademark was registered after registration of the disputed domain name the Complainant`s have provided evidence of establishment in 1992 and have been operating under that trademark since. This pre-dates the Respondent`s registration of the disputed domain name.

The Panel does not find that the Complainant filed this Complaint in bad faith or primarily to harass the Respondent.

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 name, <onurair.com> be transferred to the Complainant.

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GГ¶khan GГ¶kçe
Sole Panelist

Dated: August 12, 2009