DECISION

 

Nutramax Laboratories, Inc. v. Mehmet Ersin Uludag / NED MARINE DENIZCILIK SANAYI VE TICARET LIMITED SIRKETI EVLIYA C

Claim Number: FA2412002129565

 

PARTIES

Complainant is Nutramax Laboratories, Inc. ("Complainant"), represented by Mary Grace Gallagher of Alston & Bird, LLP, Georgia, USA. Respondent is Mehmet Ersin Uludag / NED MARINE DENIZCILIK SANAYI VE TICARET LIMITED SIRKETI EVLIYA C ("Respondent"), Turkey.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <denarmarine.com>, registered with Nics Telekomunikasyon A.S.

 

PANEL

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.

 

The Honorable Neil Anthony Brown KC as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on December 15, 2024; Forum received payment on December 15, 2024.

 

On December 20, 2024, Nics Telekomunikasyon A.S. confirmed by e-mail to Forum that the <denarmarine.com> domain name is registered with Nics Telekomunikasyon A.S. and that Respondent is the current registrant of the name. Nics Telekomunikasyon A.S. has verified that Respondent is bound by the Nics Telekomunikasyon A.S. 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 December 26, 2024, Forum served the Complaint and all Annexes, including a Turkish and English Written Notice of the Complaint, setting a deadline of January 15, 2025 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@denarmarine.com. Also on December 26, 2024, the Turkish and English 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, Forum transmitted to the parties a Notification of Respondent Default in Turkish and English.

 

On January 16, 2025, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed The Honorable Neil Anthony Brown KC as Panelist.

 

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PRELIMINARY ISSUE: LANGUAGE OF THE PROCEEDING

The Complainant has submitted that the administrative proceeding be conducted in the English language pursuant to UDRP Rule 11(a). That Rule provides that the language of the proceeding is to be the language of the registration agreement relating to the domain name at issue, unless the Panel determines that it should be a different language having regard to the circumstances of the proceeding. The Registrar of the domain name says in its verification response that the registration agreement is in the Turkish language. Accordingly, the proceeding must be conducted in Turkish unless there is a more appropriate language. 

 

It is established practice that in considering that question, panels should take into account all of the relevant circumstances and also UDRP Rules 10(b) and (c) for the purpose of determining the language of the proceeding to ensure fairness and justice to both parties. Previous panels have taken into account factors that show the Respondent's familiarity with the English language. See The Argento Wine Company Limited v. Argento Beijing Trading Company, D2009-0610 (WIPO July 1, 2009) (panel exercising discretion in deciding that the language of the proceedings advance in English, contrary to the Registration Agreement, based on evidence that respondent has command of the language).

 

Moreover, the Panel may also weigh the relative time and expense in enforcing, in the present case, the Turkish language agreement, as this would require the documents to be translated into Turkish.  See Finter Bank Zurich v. Shumin Peng, D2006-0432 (WIPO June 12, 2006).

 

The Complainant relies on its submission that the Respondent is targeting a United States company and that the website to which the domain name resolves, namely the website of the Plesk company, is in English. As will be seen, the Panel finds this a somewhat dubious submission, but it is nevertheless a factor to be taken into account. Moreover, as will also appear, the individually-named Respondent is Mehmet Ersin Uludag, who is an official in "Ned Marine", has a presence on social media and a Linkedin account with a multi-year history of posting on Linkedin on marine-related topics, and in the English language. The corporate Respondent, as will also be seen, is engaged in the maritime business trade and should have a facility with the English language in conducting that type of business.

 

It is therefore clear that the Respondent in all probability is familiar with the English language and that it will suffer no unfairness or injustice if the proceeding is conducted in English.

 

Finally, if the proceeding were conducted in the Turkish language, additional and unnecessary cost and time would be incurred by translating the documents into Turkish.

 

Accordingly, and pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by the Complainant to show that the Respondent in all probability is conversant and proficient in the English language. After considering all of the circumstance of the proceeding, the Panel therefore decides that the proceeding should be conducted in the English language and it so orders.

 

PARTIES' CONTENTIONS

A. Complainant

    Complainant made the following contentions.

1.       The Complainant is a United States and internationally operating company engaged in the provision of high-quality pet and human supplements and related goods and services and it has been so engaged since at least 1992.

2.       One of the Complainant's products is DENAMARIN which is a liver health supplement for dogs and cats, and which the Complainant has offered for sale since 2007.

3.       The Complainant offers its DENAMARIN product for sale under the trademark for DENAMARIN. In particular, the evidence will establish that the Complainant has acquired registered trademark rights in the DENAMARIN trademark by virtue of its registration of that mark with the United States Patent and Trademark Office ("the USPTO") Registered Number 3,288,596 registered on September 4, 2007 and other trademarks for DENAMARIN, including an international registration for DENAMARIN registered on May 19, 2010 in Turkey where the Respondent is situated (collectively "the DENAMARIN trademark"). The Complainant has used the DENAMARIN trademark since its registration to offer its goods and services.  

4.       As well as its trademark, the Complainant has registered the domain name <denamarin.com> that it uses in its business and in particular for its website at www.denamarin.com where it markets its DENAMARIN product under the DENAMARIN trademark and brand and where it is notified extensively that DENAMARIN is a registered trademark.

5.       The Respondent registered the <denarmarine.com> domain name on December 30, 2022 ("the disputed domain name").

6.       The disputed domain name embodies, without the consent of the Complainant, the DENAMARIN trademark with the addition of the letters "r" and "e" and the generic Top Level Domain ".com".

7.       The disputed domain name is confusingly similar to the DENAMARIN trademark.

8.       The Respondent has no rights or legitimate interests in the disputed domain name. That is so because:

(a)        the Respondent has caused the domain name to resolve to a log-in page for a third-party company named Plesk that seeks to harvest confidential information from users;

(b)        the Plesk webpage has been identified to be infected with malware and has been flagged by security vendors for phishing or other malicious uses;

(c)        the Respondent registered the domain name 12 years after the Complainant had acquired its aforesaid trademark rights;

(d)        the Complainant has never given any licence, permission or authority to the Respondent to use the DENAMARIN trademark or any similar mark and there has never been any affiliation or relationship between the Complainant and the Respondent;

(e)        the Respondent has no trademark or intellectual property rights in the disputed domain name or in "denarmarine" as a trademark;

(f)       the Respondent has not used the domain name for a bona fide offering of goods or services within the meaning of Policy ¶ 4(c)(i);

(g)        the Respondent has not used the domain name for a legitimate non-commercial or fair use within the meaning of Policy ¶ 4(c)(iii) but rather has used the domain name for improper commercial gain; and

(h)        the Respondent is not commonly known by the disputed domain name within the meaning of Policy¶4(c)(ii).

9.       The Respondent has registered and used the disputed domain name in bad faith. That is so because:

(a)                       the Respondent's aforesaid conduct with respect to the domain name has generated confusion between the Complainant's and the Respondent's websites within the meaning of Policy ¶ 4(b)(iv), as the intention of the Respondent is patently to capture internet traffic looking for the official DENAMARIN website;

(b)                       the Respondent has registered and used the domain name to trade on the consumer recognition and goodwill in the DENAMARIN trademark;

(c)                       the Respondent has engaged in typosquatting;

(d)                       the Respondent's aforesaid conduct was calculated to disrupt the Complainant's business within the meaning of Policy ¶ 4(b)(iii);

(e)                       the Respondent had constructive knowledge of the Complainant and its DENAMARIN trademark when it, the Respondent, registered the disputed domain name; and

(f)                       all of the acts, facts, matters and circumstances to be revealed by the evidence will show that the Respondent registered and used the disputed domain name in bad faith;

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

1.       The Complainant is a United States and internationally operating company engaged in the provision of high-quality pet and human supplements and related goods and services and it has been so engaged since at least 1992.

2.       One of the Complainant's products is DENAMARIN which is a liver health supplement for dogs and cats, and which the Complainant has offered for sale since 2007.

3.       The Complainant offers its DENAMARIN product for sale under the trademark for DENAMARIN. In particular, the evidence has established that the Complainant has acquired registered trademark rights in the DENAMARIN trademark by virtue of its registration of that mark with the United States Patent and Trademark Office ("the USPTO") Registered Number 3,288,596 registered on September 4, 2007 and other trademarks for DENAMARIN, including an international registration for DENAMARIN registered on May 19, 2010 in Turkey where the Respondent is situated (collectively "the DENAMARIN trademark"). The Complainant has used the DENAMARIN trademark since its registration to offer its goods and services.  

4.       The Respondent registered the <denarmarine.com> domain name on December 30, 2022 ("the disputed domain name").

5.       The disputed domain name includes the letters "r" and "e" and the generic Top Level Domain ".com".

6.       The domain name has resolved to a log-in page for the company named Plesk.

7.       The disputed domain name is not identical or confusingly similar to the DENAMARIN trademark.

8.       The Panel is not satisfied that on the balance of probabilities, the Respondent has no rights or legitimate interests in the disputed domain name or that the disputed domain name has been registered and used in bad faith.

9.       Accordingly, the Complaint is denied and the domain name should remain with the Respondent.

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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").

 

Identical and/or Confusingly Similar

The first question that arises is whether the Complainant has rights in a trademark or service mark on which it may rely. One of the Complainant's products is DENAMARIN which is a liver health supplement for dogs and cats, and which the Complainant has offered for sale since 2007. The evidence is that the Complainant offers its DENAMARIN product for sale under the trademark for DENAMARIN. In particular, the evidence has established that the Complainant has acquired registered trademark rights in the DENAMARIN trademark by virtue of its registration of that mark with the United States Patent and Trademark Office ("the USPTO") Registered Number 3,288,596 registered on September 4, 2007 and other trademarks for DENAMARIN, including an international registration for DENAMARIN registered on May 19, 2010 in Turkey where the Respondent is situated (collectively "the DENAMARIN trademark"). The Complainant has used the DENAMARIN trademark since its registration to offer its DENAMARIN product.  

The aforesaid facts have been established by documentary evidence that the Panel has examined and finds to be in order.

The Complainant has thus established its trademark rights and hence its standing to bring this proceeding.

The next question that arises is whether the disputed domain name is identical or confusingly similar to the Complainant's DENAMARIN trademark.

Comparing the domain name and the trademark alone, the domain name is obviously not identical to the trademark as it includes some letters that are present in the domain name but not in the trademark. However, it remains to be seen whether the domain name is nevertheless confusingly similar to the trademark. In that regard, the spelling of the two is largely the same, except that the domain name includes two additional letters "r" and "e".

It is often said that the addition of a few letters to a trademark will not negate a finding of confusing similarity, and that will often be the case. But that is because in many cases, even with the addition, the word will have the same meaning as the trademark. But in the present case, the addition of the letter "e" at the end of the word, gives it an entirely different meaning from the trademark, as it creates the word "marine". Internet users are therefore more likely than not to read the domain name as "denar marine" and it would probably be seen by internet users as being either the name of an entity in the marine industry or as having some connection with marine activities. The trademark has no such connotation, but the domain name does.

The Panel therefore is not satisfied on the balance of probabilities that internet users would see the domain name as referring to a non-marine subject or in particular to the dog and cat supplement marketed under the trademark DENAMARIN. There is simply no reason why they would read the domain name as invoking or referring in any way to the trademark.

It should be mentioned here, although its significance is more directly related to other issues in this case that will appear later, rather than the current issue, that the corporate Respondent has the word "MARINE" in its name, and that its entire name means, when translated from Turkish into English, Ned Marine Marine Industry and Trade Limited.¹ Moreover, as will appear later, the individually and first-named Respondent is Mehmet Ersin Uludag, who is an official in Ned Marine Marine Industry and Trade Limited, has a presence on social media and a Linkedin account with a multi-year history of posting on Linkedin on marine-related topics, and in the English language. It should therefore scarcely be surprising, and more likely than not, that a company which is clearly a marine company engaged in marine and maritime activities and an official who is involved in its marine and maritime activities would create a domain name that invokes marine activities.

 

The Panel is therefore unable to find that the domain name is, on the balance of probabilities, confusingly similar to the trademark.

 

The Complainant has thus not made out the first of the three elements that it must establish under the Policy.

 

Rights or Legitimate Interests and

Registered and Used in Bad Faith

As the Complainant has not prevailed on the first element, it is not strictly necessary to deal with the other two elements. However, even if the first element had been decided in favor of the Complainant, the Panel would find it very difficult and in its opinion unsafe, on the little evidence tendered by the Complainant, to find that the Respondent has no right or legitimate interest in the domain name or that the Respondent registered and used the domain name in bad faith.

 

A right or legitimate interest in a domain name may be created by any circumstance that establishes that entitlement. That is made very clear from the phraseology of Policy ¶ 4(c) which provides that the Respondent may establish any of the specified criteria set out under that paragraph, but that those criteria are "without limitation", meaning that a respondent may also rely on any other circumstance that can give rise to a right or legitimate interest.

 

To answer the question whether there are any circumstances showing that the Respondent has a right or legitimate interest in the domain name and because of the limited evidence produced by the Complainant, the Panel decided that it would be wise, and in the interests of doing justice between both parties, to look at the two respondents more closely to ascertain their activities and likely motivation in registering and using the disputed domain name. The Panel has therefore undertaken some limited research which panels are recognized as being entitled to do, provided that it is limited to matters on the public record and used to verify the parties' submissions, rather than to advocate for one side or the other. In that regard, the Panel gives cognizance to the views expressed by the 3-member panel in Sensis Pty Ltd, Telstra Corporation Limited v. Yellow Pages Marketing B.V. (WIPO Case D2011-0057 (Mar. 15, 2011) that panels may have regard to, inter alia: "..websites associated with the domain names…other websites and social media pages operated by parties or their associates…(and) standard reference works, such as dictionaries, encyclopedias, Wikipedia, and material published by relevant industry associations."

 

The limited research undertaken by the Panel into some of those sources has produced the following.

 

As already noted, the English translation of the corporate Respondent's name is Ned Marine Marine Industry and Trade Limited. This not a fictitious name but is an official company (or trade) name registered with the Union of Commerce and Commodity Exchange of Turkieye,² registered number 376880-5. When searched on the internet it resolves to Ned Marine Services B.V. with the internet address and website at www.nedmarine.com and an email address of info@nedmarine.com. It is a Dutch company and NED is the well-known international abbreviation for Netherlands.

It is apparent from the website that it is a going concern engaged in many marine and maritime activities, such as surveying, repairs and dry dock services and that it has been so engaged for 20 years.

 

The individual Respondent is Mehmet Ersin Uludag, who is an official in "Ned Marine", has the same address as the company, and has a presence on social media and a Linkedin account with a multi-year history of posting on Linkedin on marine-related topics.³

 

The Panel draws the conclusion from this evidence that the Respondents have registered a domain name that invokes either a form of their corporate or trade name or a statement invoking the marine services that it provides. In fact, the word "marine" appears in the name of the corporate Respondent both in English and in Turkish and the social media feed of the individual Respondent states that he is the Technical Manager of "Ned Marine" and that he posts on related issues.

 

It must surely be legitimate to register a domain name that is consistent with and reflects those names and activities, in the case of the corporate Respondent whose name is officially registered and in the case of the individual Respondent because the domain name relates to his employment. It is certainly far more likely than that a Dutch marine company would want to register a domain name that is now said to invoke pet supplements.

 

The Complainant of course goes further and says that the whole purpose of registering the domain name was to set up a phishing exercise, "to harvest confidential information from unsuspecting visitors using login and password information" and, in short, to "lure" internet users to the Respondent's website. This is reference to the submission by the Complainant that the domain name resolves to the website of the Plesk company which is verified by the Complainant's Exhibit H.

 

The Panel does not accept that this submission is tenable. The Panel has already referred to the inherent improbability that a Dutch marine company would want to do such a thing. There is also no evidence that a single person has been lured into this alleged subterfuge or, indeed, that a single person has provided any personal information to the Respondent or to Plesk by means of filling in the form in Exhibit H. Moreover, the Panel does not accept that the form in Exhibit H can be assumed to have been intended to be used for phishing or any other improper purpose. Plesk is a company that "is a commercial web hosting and server data center automation software developed for Linux and Windows-based retail hosting service providers."⁴ It provides services for the administration of websites and has been in business for 20 years.⁵ It is therefore far more likely that it is engaged in its normal business rather than engaging in phishing expeditions. The form in question is apparently used as a login page for its web hosting customers to acquire or use the "plesk web host edition." Thus, the Panel does not accept that it can be assumed that the form was probably used by the Respondent as part of a phishing exercise or for any other improper purpose.

 

Accordingly, the Panel finds that there is evidence tending to suggest that the registration of the domain name was effected by both Respondents to reflect their legitimate business and employment activities and was not used for an improper or illegitimate purpose.

 

So far as bad faith is concerned, the evidence discussed above is equally applicable to bad faith as it is to rights and legitimate interest and there is no need to repeat it here. That evidence is such that the Panel is not prepared to find on the balance of probabilities that the Respondent registered and used the domain name in bad faith. The registration of the domain name reflected legitimate business activities of the Respondents, incorporated the word "marine" which is part of the name of the corporate Respondent and covers the known activities of the individual Respondent. The Complainant is, with respect, wrong in submitting that "there is no plausible good-faith reason for the Respondent to have registered the Domain Name…" There is a plausible good faith reason for registering the domain name, which is that it invoked the marine activities of both Respondent and adopted the word "Marine" from the name of the corporate Respondent. Nor is there any evidence that the Respondent has acted with a dishonest intent or that there is any reason why it should have done so, that the domain name has been used for any improper purpose or that the Complainant or anyone else has suffered from any action of the Respondent. It is at least just as likely and probably more likely that the Respondent directed the domain name to resolve to the Plesk website because it wanted to avail itself of Plesk's services.

 

The Panel is therefore unable to say on the balance of probabilities that the Respondent registered and used the domain name in bad faith.

 

Thus, had the proceeding gone further to the second and third elements of the Policy, the Complainant would not have prevailed.

The Complainant has thus not made out the three elements that it must establish under the UDRP.

The Complaint should therefore be denied and the domain name should be retained by the Respondent.

 

DECISION

Having not established all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.

 

Accordingly, it is Ordered that the <denarmarine.com> domain name REMAIN WITH the Respondent.

 

 

 

The Honorable Neil Anthony Brown KC, Panelist

Dated: January 21, 2025