The Complainant is Dentspa Oral & Dental Health Clinic, Turkey, and the Respondent is another Turkish dental spa company, represented by Mr. Kokhan Sarı.
The Respondent said that the 2004 domain was acquired by him in 2020. NameBio shows that Dentspa.com was sold in 2018 for a mere $173 dollars at a GoDaddy auction.
The Respondent filed an application for the mark DENTSPA TURKEY with the Turkish Patent and Trademark Institution on December 30, 2020, however the mark has not been registered yet.
In its decision, the WIPO panelist “believes that the Respondent must have known of the DENTSPA trademark when purchasing the disputed domain name as the Respondent carries on a business in the same sector and in the same city with the Complainant. Additionally, the Respondent did not explain why he selected this particular domain name.”
Final decision: Transfer the domain Dentspa.com to the Complainant.
WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Dentspa Oral & Dental Health Clinic v. Domain Administrator, Registrant of dentspa.com / Private Registration, NameBrightPrivacy.com and Kokhan Sarı
Case No. D2021-0891
1. The Parties
The Complainant is Dentspa Oral & Dental Health Clinic, Turkey, represented by CSC Digital Brand Services Group AB, Sweden.
The Respondent is Domain Administrator, Registrant of dentspa.com, United Kingdom / Private Registration, NameBrightPrivacy.com, United States of America and Kokhan Sarı represented by Att. Melike Mercan & Att. Sefer Gül.
2. The Domain Name and Registrar
The disputed domain name <dentspa.com> is registered with Atak Domain Hosting Internet ve Bilgi Teknolojileri Limited Sirketi d/b/a Atak Teknoloji (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 24, 2021. On March 24, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 7, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on April 12, 2021, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on April 19, 2021.
The Center verified that the Complaint together with the amended 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 20, 2021. In accordance with the Rules, paragraph 5, the due date for Response was May 10, 2021. The Response was filed with the Center on May 5, 2021. The Complainant sent a supplemental filing to the Center on May 7, 2021.
The Center appointed Gökhan Gökçe as the sole panelist in this matter on May 18, 2021. 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.
The Registrar confirmed that the language of the registration agreement was English, so according to paragraph 11(a) the decision will be in English.
4. Factual Background
The Complainant is a dental healthcare provider in Turkey. The Complainant operates 17 clinics in Istanbul and offering a range of dental services, including aesthetic dentistry, orthodontics, dental implants, pedodontics, dental laser treatment and surgery.
The Complainant’s Chief Executive Officer (“CEO”), Mr. A. Aljajah, is the owner of the following trademark registration:
– Turkish Trademark No. 2018 70314, DENTSPA, registered on December 26, 2018, in classes 43 and 44.
Pursuant to the Annex 4 of the Complaint, the Complainant’s CEO, Mr. A. Aljajah owns the domain name, composed of the word “dentspa” which is <dentspa.com.tr> registered on July 30, 2018. With this domain name, the Complainant shares information about the range of its services offered and book appointments. Although the trademark and domain name areregistered by the CEO of the Complainant the Panel determines the authority and position of Mr. A. Aljajah in the Complainant company, and neither did the Respondent submit any objection in relation to trademark registration and domain name registration holder’s relation with the Complainant.
In accordance with the Annex 10 of the Complaint, the Complainant’s representative sent cease-and-desist letters dated January 6, 13, and 20, 2021, to cease or avoid any and all use of the disputed domain name or to transfer the disputed domain name to the Complaint; however, the Respondent did not respond to the Complainant’s cease-and-desist letters.
The disputed domain name was initially registered on September 7, 2004 and then the disputed domain name was admittedly purchased by Mr. Kokhan Sarı on March 27, 2020 from a third party. Pursuant to the Annex 1 of the Response, Mr. Kokhan Sarı is the shareholder and authorized [representative] of AFM Dental Medical Food Tourism Textile and Construction Industry Domestic and Foreign Trade Limited Company and MG Health Tourism Cosmetic and Construction Limited Company which are carrying out their activities in the same sector with the Complainant.
The Complainant submitted evidence which shows that the disputed domain name is linked to a page informing that the disputed domain name was available for sale according to Annex 3 of the Complaint, and the disputed domain name is linked to a page containing the Complainant’s logo and trademark. While the disputed domain name previously resolved to page for sale, at the date of the Decision, the disputed domain name states the following error message: “This site can’t be reached.”
5. Parties’ Contentions
The Complainant requests the transfer of the disputed domain name.
The Complainant is of the opinion that the disputed domain name is identical to its DENTSPA trademark.
Furthermore, the Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name and has also registered and is using the disputed domain name in bad faith.
The Respondent Mr. Kokhan Sarı states that the disputed domain name was registered in 2004 by Atak Domain and then Mr. Kokhan Sarı admits having purchased the disputed domain name in 2020. The Respondent refuses any trademark infringement and refers to the “first come, first served” principle. In this regard, the Respondent points out that the disputed domain name was registered prior to the Complainant’s trademark registration.
In the Annex 3 of the Response, the Respondent submits his trademark application for DENTSPA TURKEY before the Turkish Patent and Trademark Institution which was submitted on December 30, 2020, however it has not been registered yet.
The Respondent argues that Mr. Kokhan Sarı’s companies authorized to operate in the fields of dental health tourism and related fields on a national scale and therefore the use of the disputed domain name subjects to the dispute by the Respondent is an indication of a very just and legitimate interest.
The Respondent states that considering the field of activity of the Companies’ of the Respondent which covers dental health tourism, it shows that there is no bad faith.
6. Discussion and Findings
A. Identity of Respondent
WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 4.4.5, provides the Panel with the discretion to determine the respondent against whom a UDRP proceeding should proceed. In this matter, the Response was filed by Mr. Kokhan Sarı as the domain name registrant with evidence. The Panel thus concludes that it is appropriate to treat Mr. Kokhan Sarı as an additional respondent, in this case, along with the registrant of the disputed domain name disclosed by the Registrar.
B. Consideration of Additional Submission
The Panel notes that the Center received an additional submission from the Complainant on May 7, 2021, to address the Response submitted by the Respondent on May 5, 2021.
The Panel follows the reasoning of the panel in Viz Communications, Inc. v. Redsun dbawww.animerica.com and David Penava, WIPO Case No. D2000-0905, that it is appropriate to consider the circumstances of each case before deciding whether or not to admit additional or late-filed submissions.
In this case, the additional submission contains nothing that would have relevant impact on the Panel’s final decision. The Panel sees no reason and particularly no disadvantage for the Respondent not to take the Complainant’s additional submission into account.
C. Identical or Confusingly Similar
The Panel finds that the disputed domain name is identical to the DENTSPA trademark of the Complainant.
The Panel notes that the mere addition of the generic Top-Level Domain (“gTLD”) “.com” has no distinguishing effect and may as a general principle not be considered when assessing identity or confusing similarity between a domain name and a trademark (in line with prior UDRP panels concerning the gTLD in disputed domain names, cf. V&S Vin & Sprit AB v. Ooar Supplies, WIPO Case No. D2004-0962; Google Inc. v. Nijat Hassanov, WIPO Case No. D2011-1054).
D. Rights or Legitimate Interests
The Respondent is not a licensee of, or otherwise affiliated with, the Complainant, and has not been authorized by the Complainant to use its DENTSPA trademark. Additionally, the Respondent’s trademark application for DENTSPA TURKEY which was submitted on December 30, 2020, has not been registered yet. In any event, section 2.12.2 states that the existence of a respondent trademark does not automatically confer rights or legitimate interests on the respondent. For example, panels have generally declined to find respondent rights or legitimate interests in a domain name on the basis of a corresponding trademark registration where the overall circumstances demonstrate that such trademark was obtained primarily to circumvent the application of the UDRP or otherwise prevent the complainant’s exercise of its rights.
The Respondent claims that he registered the disputed domain name for use in relation to a proposed dental healthcare services, but provided no evidence of any bona fide preparations to that effect. The evidence provided by the Complainant shows that the disputed domain name resolves to a website which contains the Complainant’s registered logo and trademark and also disputed domain name is linked to a page informing that the disputed domain name was available for sale. According to the Annex 3 of the Complaint, therefore, the disputed domain name is not being used in connection with a bona fide offering of goods or services, or for a legitimate noncommercial or fair use. From the submitted evidence in this case, it has been established that the disputed domain name is not actively resolving to any kind of website.
Although provided the opportunity, the Respondent has not submitted any evidence indicating that the Respondent is the owner of any trademark rights or that the Respondent is commonly known by the disputed domain name.
Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name.
E. Registered and Used in Bad Faith
The Panel is further convinced that the Respondent has registered and used the disputed domain name in bad faith.
The Panel believes that the Respondent must have known of the DENTSPA trademark when purchasing the disputed domain name as the Respondent carries on a business in the same sector and in the same city with the Complainant. Additionally, the Respondent did not explain why he selected this particular domain name.
It rather appears that the Respondent has registered the disputed domain name solely for the purpose of creating an association with the Complainant, in particular with its services. After having reviewed the provided screenshots in the case, the Panel is convinced that the Respondent has intentionally registered the disputed domain name to offer dental healthcare services by creating the impression that it is somehow officially linked to the Complainant. Not only the disputed domain name but also the use of the DENTSPA trademark as a logo on the website that was linked to the disputed domain name give the impression that the Respondent has intended to mislead Internet users who may search for official products by the Complainant.
Further, as the Complainant asserts, the Respondent used a privacy service provider, to register the disputed domain name, which may constitute a factor indicating bad faith. See section 3.6 of the WIPO Overview 3.0
The Complainant sent the Respondent cease and desist letters. The Respondent never replied. A failure of a respondent to respond to cease and desist letters has been considered relevant in finding of bad faith (see News Group Newspapers Limited and News Network Limited v. Momm Amed Ia, WIPO Case No. D2000-1623; Nike, Inc. v. Azumano Travel, WIPO Case No. D2000-1598; and America Online, Inc. v. Antonio R. Diaz, WIPO Case No. D2000-1460).
All in all, the Panel concludes that the disputed domain name was registered and used in bad faith and that the Complainant has also satisfied the third element of the Policy, namely, paragraph 4(a)(iii) of the Policy.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <dentspa.com> be transferred to the Complainant.
Date: June 1, 2021
Copyright © 2021 DomainGang.com · All Rights Reserved.