A one member WIPO panel has found Arif Develier of Istanbul, Turkey, represented by Net Koruma Danışmanlık Hizmetleri, Turkey guilty of Reverse Domain Name Hijacking (RDNH) on domain name Develi.com
The Complainant is a private individual and states that it is the owner of the restaurant chain named “Develi”, which it notes is the first and only such chain in Turkey that has been operating for more than a century.
The Respondent asserts that the city of Develi is located in the central Anatolia Region of Turkey, was established over 200 years ago and pre-dates anything that the Complainant may have established. The Respondent submits that the Complainant fails to show that the use of the disputed domain name is likely to confuse the vast global Internet population.
The Respondent states that its use of the city name in the practice of offering vanity email, blogging and web hosting services bears no resemblance to the Complainant’s claims that it would be confused with the Complainant’s café or restaurant. The Respondent adds that it uses the name “Develi” for its descriptive purpose by providing paid search advertising based around the city name itself and supports this with a screenshot from the website “www.domaintools.com” which appears to show that the said site has been used since registration for paid links, albeit that the nature of the links themselves cannot be discerned. The Respondent states that this constitutes a bona fide service which pre-dates any knowledge or awareness of the Complainant on its part.
The Respondent states that the name “Develi” is too generic to be registered as a trademark on its own.
The Respondent notes that the Complainant has failed to provide proof of an actual certificate of registration for the DEVELI word mark itself and asserts that the United States Patent and Trademark Office (“USPTO”) shows an abandoned trademark application for such made by the Complainant in 2007, some two years after the disputed domain name was registered. The Respondent points out that such application disclaims the exclusive right to use “Develi” other than as part of the submitted drawing. The Respondent states that there are numerous Turkish trademarks registered by third parties encompassing the name “Develi”, none of which have exclusive right thereto outside a stylization, drawing or combination thereof.
“The screenshots of the website associated with the disputed domain name produced by the Complainant dated December 12, 2005, March 28, 2006 and July 19, 2006 demonstrate to the Panel’s satisfaction that within months of the creation of the disputed domain name, it was pointed to a website featuring pay-per-click advertising of a general nature. These screenshots also show that the web pages concerned offered the disputed domain name for general sale. The broad thrust of the Complainant’s case is that this demonstrates registration and use in bad faith. The Panel does not agree. There is no evidence before the Panel that the Respondent was intent on targeting the Complainant’s trademark by way of its registration of the disputed domain name. On the contrary, it seems plausible to the Panel that the Respondent selected the disputed domain name because it represented the name of a geographic location, the city named Develi. The Complainant’s screenshots show that the pay-per-click advertising published on the corresponding website did not target the line of business in which the Complainant is engaged, which is again consistent with the Respondent’s case. Furthermore, the Respondent does not fall foul of the Policy simply by having made a general offer of sale of the disputed domain name. The Complainant has placed no evidence before the Panel indicating that the Respondent’s primary purpose in registering the disputed domain name was to sell it to the Complainant or a competitor thereof rather than, as the Respondent contends, to take advantage of its geographic and generic connotation.
As matters stand, there is no evidence on the present record indicating that the Respondent’s denial of knowledge of the Complainant and of the Complainant’s mark is inherently improbable, such as, for example, any evidence as to the extent of the renown of the mark on the Internet. Had suitable evidence of this nature been forthcoming, it might perhaps have gone some way towards demonstrating that an IT and Internet focused organization, such as the Respondent, could more probably than not have identified the Complainant (and its fame) by a simple search. In the absence of any such evidence, however, the Respondent’s denial of knowledge is credible enough to cast doubt on the Complainant’s claims.
In all of these circumstances, the Panel finds that the Complainant has failed to prove that the disputed domain name was registered and has been used in bad faith.
E. Reverse Domain Name Hijacking
The Respondent requests a finding of Reverse Domain Name Hijacking based on the fact that it considers that the Complaint was brought in bad faith and in the knowledge that the Respondent had an “unassailable” right or legitimate interest in the disputed domain name and a clear lack of bad faith registration and use.
The Panel is troubled by the Complainant’s inability to provide suitable evidence to support its assertions of the extent to which it is well-known, in terms of its case that the Respondent was more likely than not to have been targeting it. More importantly, however, the Panel is concerned by the Complainant’s critical failure to address either in the Complaint or in its supplemental filing the fact that the name “Develi” holds a non-trademark meaning arising from the eponymous city.
Instead, the Complainant attempts to rely upon bare averments that it is well-known, vague assertions as to the reach and extent of its restaurant chain with no supporting evidence and an unfounded submission that the Respondent is Turkish. It is the view of the Panel that a Complaint in these terms was bound to fail and that the Complainant knew or ought to have known this at the point of filing.
In all of these circumstances, the Panel finds that on balance the Complaint was brought in bad faith and constitutes an abuse of the administrative proceeding.””
