Oracle International Corporation v. ziya mutlu karamzrak
Claim Number: FA1904001837247
Complainant is Oracle International Corporation (“Complainant”), represented by Steven M. Levy, Pennsylvania, USA. Respondent is ziya mutlu karamzrak (“Respondent”), Turkey.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <oracleturk.com>, 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 April 3, 2019; the Forum received payment on April 8, 2019.
On April 4, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <oracleturk.com> 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 April 12, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 2, 2019 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@oracleturk.com. Also on April 12, 2019, 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 May 3, 2019, 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 is one of the world’s largest developers and marketers of enterprise software products and services and computer hardware systems – particularly its own brands of database management systems and applications.
Complainant has rights in the ORACLE mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <oracleturk.com> domain name is confusingly similar to Complainant’s mark as it adds the generic word “Turk” and the “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <oracleturk.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the mark. Respondent also does not use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent attempts to pass off as Complainant in order to solicit purchase offers for the domain name for commercial gain.
Respondent registered and uses the <oracleturk.com> domain name in bad faith as Respondent attempted to sell the domain name to Complainant for $20,000.00. Further, Respondent intentionally attempts to attract, for commercial gain, Internet searchers to its website, by creating a likelihood of confusion with Complainant’s mark as to source, sponsorship, affiliation, or endorsement of Respondent’s website. Additionally, Respondent had actual knowledge of Complainant’s ORACLE mark when it registered the domain name given Complainant’s longstanding use of the mark in commerce, the international fame associated with the mark, and Respondent’s inclusion of Complainant’s logo on the resolving webpage.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in the ORACLE mark.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in the ORACLE trademark.
Respondent attempts to pass itself off as Complainant and offer for the domain name for sale.
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 name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s registration of its ORACLE mark with the USPTO establishes Complainant’s rights in such mark for the purposes of Policy 4(a)(i). See Paisley Park Enters. v. Lawson, FA 384834 (Forum Feb. 1, 2005) (concluding that the complainant had established rights in the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO).
Additionally, Respondent’s <oracleturk.com> domain name contains Complainant’s ORACLE trademark followed by the generic term “turk” and the top-level domain name “.com.” The differences between Respondent’s domain name and Complainant’s ORACLE mark are insufficient to materially distinguish one from the other under the Policy. Therefore, the Panel finds that Respondent’s <oracleturk.com> domain name is confusingly similar to Complainant’s ORACLE trademark pursuant to Policy ¶ 4(a)(i). See MTD Products Inc. v. J. Randall Shank, FA 1783050 (Forum June 27, 2018) (“The disputed domain name is confusingly similar to Complainant’s mark as it wholly incorporates the CUB CADET mark before appending the generic terms ‘genuine’ and ‘parts’ as well as the ‘.com’ gTLD.”).
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 the at-issue domain name.
WHOIS information for the at-issue domain name lists “ziya mutlu karamzrak” as the domain name’s registrant and there is nothing in the record that otherwise suggests Respondent is commonly known by the <oracleturk.com> domain name. Therefore, the Panel finds that Respondent is not commonly known by the at-issue domain name pursuant to Policy ¶ 4(c)(ii). See Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name).
Respondent registered and uses the <oracleturk.com> domain name to pass itself off as Complainant for commercial gain and to offer the domain name for sale. Using the domain name in this manner is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Bloomberg Finance L.P. v. guan bing, Claim No. FA 1829221 (Forum Mar. 28, 2019) (“Respondent registered and uses the resolving website of the disputed domain name to offer the confusingly similar <bloomberg-pasture.com> domain name for sale to Complainant for an amount in excess of Respondent’s out-of-pocket costs. Using the domain name in this manner is 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 also Crow v. LOVEARTH.net, FA 203208 (Forum Nov. 28, 2003) (“It is neither a bona fide offerings [sic] of goods or services, nor an example of a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) & (iii) when the holder of a domain name, confusingly similar to a registered mark, attempts to profit by passing itself off as Complainant . . . .”).
Given the forgoing, Complainant satisfies its initial burden under Policy ¶ 4(a)(ii) and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name.
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 made an offer to sell its domain name to Complainant for $20,000.00. Offering the confusingly similar domain name to Complainant’s for an amount in excess of Respondent’s out-of-pocket expenses shows Respondent’s bad faith under Policy ¶ 4(a)(i). See Deutsche Lufthansa AG v. Kenechukwu Okoli, FA 1821759 (Forum Jan. 13, 2019) (“The domain name’s website listed the domain name for sale for $9,150. Respondent also contacted Complainant directly to offer the domain name for sale. Doing so suggests bad faith registration and use of the <lufthansamiles.com> domain name pursuant to Policy ¶ 4(b)(i).”).
Next, Respondent used the confusingly similar <oracleturk.com> to address a webpage displaying Complainant’s logo and trademark. Doing so affords the mistaken impression that Complainant is somehow sponsoring Respondent’s webpage, when it is not. It is reasonable to believe that Respondent’s scheme was ultimately designed to benefit Respondent financially. Respondent’s use of its confusingly similar domain name to trade upon Complainant’s goodwill for commercial gain demonstrates Respondent’s bad faith registration and use of the at-issue domain name under Policy ¶ 4(b)(iv). See Dell Inc. v. Prashant Chhibber, FA 1785651 (Forum June 1, 2018) (“The Panel finds that Respondent used the domain names to create confusion with Complainant’s DELL mark for commercial gain and that Respondent registered the domain names in bad faith under Policy ¶ 4(b)(iv).”).
Finally, Respondent registered the <oracleturk.com> domain name knowing that Complainant had rights in the ORACLE trademark. Respondent’s prior knowledge is evident from the notoriety of Complainant’s trademark and from Respondent’s use of <oracleturk.com> to address a webpage displaying Complainant’s logo and trademark. The foregoing makes 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 further indicates that Respondent registered and used the <oracleturk.com> 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 <oracleturk.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: May 5, 2019
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