WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Twitter, Inc. v. Ahmet Ozkan
Case No. D2014-0469
1. The Parties
Complainant is Twitter, Inc. of San Francisco, California, United States of America (“USA”), represented by Leason Ellis LLP, USA.
The Respondent is Ahmet Ozkan of Isparta, Turkey.
2. The Domain Name and Registrar
The disputed domain name <twıtter.com> [xn--twtter-q9a.com] (that is, the word “twitter” with a Turkish-character dotless letter “ı” in place of the regular character “i”) is registered with GoDaddy.com, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 26, 2014. On March 26, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 27, 2014, the Registrar transmitted by email to the Center its verification response confirming that 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 Respondent of the Complaint, and the proceedings commenced on April 7, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was April 27, 2014. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on May 9, 2014.
The Center appointed Nasser A. Khasawneh as the sole panelist in this matter on May 9, 2014. 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.
On May 30, 2014, the Center forwarded to the Parties Administrative Panel Procedural Order No. 1 (“Procedural Order No. 1”). In light of Complainant’s request that proceedings be heard in English, the Order requested Complainant within five (5) days to provide an accurate English translation of Annex 7 to the Complaint, which allegedly reproduced the content of the webpage to which the disputed domain name routed. The Procedural Order No. 1 also requested submission of any further allegations Complainant wished the Panel to consider respecting the impact that the content reflected in Annex 7 to the Complaint, and the specific use Respondent was making of the website, had on the issue of rights or legitimate interests under the second element of paragraph 4(a) of the UDRP. The Procedural Order No. 1 outlined a further response period for Respondent and extended the deadline for rendering the present Decision until June 11, 2014.
On June 3, 2014, Complainant submitted its Response to Procedural Order No. 1. Respondent refrained from making any submission addressing Complainant’s Response to Procedural Order No. 1. Complainant’s Response to Procedural Order No. 1 referred to annexes, but these were omitted from the filing. The Center therefore made a formal request for clarification, to which Complainant responded with a corrected version of the Response (including the missing annex) on June 11, 2014. The Decision due date was accordingly extended to June 16, 2014.
4. Factual Background
Complainant owns many registrations worldwide for its famous TWITTER trademark, including, for example, Turkish Trademark Registration Number 2009 39981 in classes 38, 42 and 45, registered January 3, 2012 and United States Trademark Registration No. 3,619,911 registered May 12, 2009 in classes 36, 41 and 45, with a first use date of August 31, 2006.
The disputed domain name was registered on April 4, 2009 and currently routes users to an index page without substantial publicly visible content.
The Panel reviewed archives on line of the website to which the disputed domain name routes at “www.archive.org”.1 Without exhaustive review, the Panel was able to find that the webpage, while different in appearance from Annex 7 to the Complaint, in the recent past displayed material in the nature of a Turkish-language blog with commentary respecting Turkish politics, and a few photographs.
5. Parties’ Contentions
A. Complainant
The Annex 7 to the Complaint is represented as a screen capture of Respondent’s webpage dated March 24, 2014. The single-page website displays photos of a man in a Turkish air force uniform, and a second photo of a soldier with a fighter jet, cockpit open, in the background. There are two brief written statements on Annex 7 to the Complaint: “RUHUNUZ ŞÂD OLSUN ÖCÜNÜZ ALINDI” and “MILLET EĞILMEZ TÜRKIYE YENILMEZ” (the latter appears at the top-of-page header).
Complainant’s Response to Procedural Order No. 1 translates the two phrases on Respondent’s current webpage to English as “Let Your Soul Be Sad, Revenge Will Be Taken,” and “The nation does not succumb, Turkey cannot be defeated”. Complainant’s Response also provides some context, explaining that the photos on Respondent’s webpage are of the two Turkish pilots shot down and allegedly killed by Syria in 2012 (Annex 1 to the Complaint provides a news clipping about the incident with photos; one depicts one of the same airman that appears on the webpage).
Complainant’s legal allegations under the Policy, including the supplemental allegations of the Response to Procedural Order No. 1 are:
(1) Despite the insertion of the non-ANSII Turkish dotless “ı” character, the disputed domain name is “substantially identical” or confusingly similar to Complainant’s famous TWITTER mark.
(2) Respondent has no rights or legitimate interests in the disputed domain name. The Complaint summarily alleged that Respondent had no rights or authorization to use the trademarks and that Respondent was not commonly known by the disputed domain name. Complainant’s Response to Procedural Order No. 1 elaborates:
“There is no apparent reason to utilize the Domain Name with the TWITTER mark (including the non-ansii Character) for this particular content and the page does not represent bona fide use of the Domain Name. In fact, there is no connection to Complainant or its services, and the content of the Domain Name cannot even be described as legitimate noncommercial and fair use…. [I]t is the Complainant’s view that the only plausible explanation is that based upon the content and the estimated level of typos, the Respondent’s intent is to popularize its cause by taking advantage of misdirected traffic.”
(3) Respondent registered and uses the disputed domain name in bad faith. The Complaint presents several arguments, but principally grounds its conclusion on Respondent’s use of the disputed domain name to confuse Internet users, employing Complainant’s trademark without authorization for Respondent’s own misleading and improper purposes.
On the basis of these allegations, Complainant seeks transfer of the disputed domain name.
B. Respondent
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
The Panel must render its Decision on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. Rules, paragraph 15(a). Complainant must establish each element of paragraph 4(a) of the Policy, namely:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
The Complaint must establish these elements even if Respondent does not reply. See e.g. The Vanguard Group, Inc. v. Lorna Kang, WIPO Case No. D2002-1064. In the absence of a response, the Panel may also accept as true the reasonable factual allegations in the Complaint. See e.g., ThyssenKrupp USA, Inc. v. Richard Giardini, WIPO Case No. D2001-1425 (citing Talk City, Inc. v. Michael Robertson, WIPO Case No. D2000-0009).
A. Identical or Confusingly Similar
The Complainant alleges that the disputed domain name is “substantially identical” to Complainant’s TWITTER trademarks. The Panel finds that Respondent’s domain name is confusingly similar for purposes of the Policy.
Panels generally disregard the generic Top-Level Domain (“gTLD”) suffix in evaluating confusing similarity. E.g., VAT Holding AG v. VAT.com, WIPO Case No. D2000-0607; Shangri-La International Hotel Management Limited v. NetIncome Ventures Inc., WIPO Case No. D2006-1315.
Removing the suffix from the disputed domain name, the Panel finds that the disputed domain name <twıtter.com>, which displays as the term “twitter” but using the Turkish dotless character “ı”, is phonetically and visually similar to Complainant’s TWITTER trademark. The Panel concludes, therefore, that the disputed domain name is confusingly similar to Complainant’s mark. See, e.g., PartyGaming Plc., PartyGaming IA Limited v. Harry Thomas, WIPO Case No. D2008-1275 (disputed domain name <gamebukers.com> confusingly similar to “GAMEBOOKERS” mark for phonetic reasons (transfer denied on other grounds) citing Medtronic, Inc. v. gotdomains4sale.com, WIPO Case No. D2001-1033; Microsoft Corporation v. Mike Rushton, WIPO Case No. D2004-0123); see also Facebook, Inc. v. Andre Schneider / Domcollect AG, WIPO Case No. D2013–1183 (insertion of diaeresis in non-ANSII character “ä” in the domain name <fäcebook.org> did not prevent confusingly similarity).
The Panel finds, therefore, that the disputed domain name is confusingly similar to Complainant’s registered trademark and that the requirements of paragraph 4(a)(i) of the Policy are fulfilled.
B. Rights or Legitimate Interests
The Panel also concludes that Respondent has no rights or legitimate interests in the disputed domain name.
The Policy contains a non-exhaustive list of circumstances that may demonstrate when a respondent has rights or legitimate interests in the use of a domain name. The list includes: (1) the use of the domain name in connection with a bona fide offering of goods and services; (2) an entity being commonly known by the domain name; or (3) the making of a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers. Policy paragraphs 4(c)(i)(iii).
A complainant must show a prima facie case proving the negative that a respondent lacks rights or legitimate interests. See e.g., Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455. The absence of rights or legitimate interests is established if a complainant makes out a prima facie case and the respondent enters no response. Id., (citing De Agostini S.p.A. v. Marco Cialone, WIPO Case No. DTV2002 -0005).
Complainant alleges that Respondent has never been a licensee, was not authorized by Complainant to use Complainant’s trademark, and that Respondent has not been commonly known by the disputed domain name. The Panel accepts these undisputed allegations as true.2
The Complaint fails to address the significant question of whether Respondent, by using the disputed domain name as a platform for posting speech, is making fair use of the disputed domain name, “without intent for commercial gain to misleadingly divert consumers”. If so, Complainant would be unable to establish that Respondent has no rights or legitimate interests under Policy, paragraph 4(a)(ii).
In addition to omitting briefing of the fair use question, the Complaint did not offer a translation of the Annex 7 to the Complaint (webpage content), despite having asked that the proceedings be in English. Consequently, the Panel’s Procedural Order No. 1 requested Complainant to submit an accurate English translation, along with any further allegations Complainant wished to present respecting the possible impact under Policy, paragraph 4(a)(ii), of the content of Respondent’s webpage.
There may be differences of opinion concerning the complete accuracy of the translations provided by Complainant. The Panel feels, however, that no egregious translation errors have been made. Absent any response by Respondent contesting the translations, the Panel finds that Complainant’s English translations are sufficient for the limited inquiry required in this proceeding.
This Panel and others have considered the fair use/speech or commentary question in other UDRP proceedings. With some consistency, it has been found that where there is political comment making use of another’s trademarks, and that comment bears no relation to the trademark holder’s activities, use of the disputed domain name is a violation of the UDRP. See e.g., Compagnie Gervais Danone v. Ibrahim kosun, danonesu.com, WIPO Case No. D2008-1085 (present Panel, citing Washington Magazine, Inc. v. dannyBOY, Inc., WIPOCase No. D2002-0514 (violation of UDRP in using washingtonianmagazine.com domain name to redirect users to websites posting anti-abortion advocacy and information); PepsiCo, Inc. v. "The Holy See", WIPO Case No. D2003-0229) (using confusingly similar domain names for anti-abortion speech, unrelated to complainant’s activities, violates UDRP), citing America Online, Inc. v. Chris Hoffman, WIPO Case No. D2001-1184, Preston Gates & Ellis, LLP v. defaultdata.com and Brian Wick, WIPO Case No. D2001-1381 and Barnes & Noble College Bookstores, Inc. v. Good Domains, WIPO Case No. D2002-0812).3
The Panel considers that the decisions cited above continue to offer sound guidance.
In the present case, despite the incident that apparently lead to the tragic death of the two Turkish airmen, there is no indication that Respondent’s use of the confusingly similar disputed domain name as shown in Annex 7 to the Complaint has any relation whatsoever to Complainant’s trademark. The archived webpage content viewed by the Panel similarly appears to be unrelated to the trademark. The Panel finds, therefore, that Respondent’s use does not confer any rights or legitimate interests in respect of the disputed domain name. Respondent has rights to publish speech or commentary on the Internet, but it does not have the right to use Complainant’s trademark to do so.
Filing no Reply, Respondent has not invoked any of the circumstances of paragraph 4(c) of the Policy to support the existence of its “rights or legitimate interests” in use of the disputed domain name.
Accordingly, the Panel finds that paragraph 4(a)(ii) of the Policy is satisfied.
C. Registered and Used in Bad Faith
The Panel finds that the third element of paragraph 4(a) of the Policy, bad faith registration and bad faith use, is also established.
Panels may draw inferences about bad faith registration or use in light of the circumstances, such as whether there is no response to the complaint or a lack of conceivable good faith uses for the disputed domain name. See e.g., Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003.
Under the circumstances, the Panel does not hesitate in ruling that Respondent registered the disputed domain name in bad faith. Complainant’s trademark is famous, and there are few conceivable good faith uses for the disputed domain name by others. The Panel infers that Respondent knew of Complainant’s trademarks and Respondent registered its confusingly similar domain name in an attempt to draw Internet users to its own website.
The Panel also finds that the disputed domain name is being used in bad faith. Without a disclaimer or any contact information on the website, Respondent is using a domain name confusingly similar to Complainant’s marks as a platform for politically charged speech that is wholly unrelated to Complainant. This, in turn, could lead to tarnishing Complainant’s reputation with some Internet users. The Panel considers the use of the disputed domain name for political speech without any conceivable relevance to Complainant to be evidence of bad faith use. See e.g., Federal Reserve Banks v. Chris Hoffman, WIPO Case No. D2004-0918 (“‘As many other Panels have found, the misdirection of Internet users seeking Complainant’s website to a highly charged political website involves Complainant in a political debate in which it has no part’ and tarnishes Complainant’s mark.” quoting PRIMEDIA Special Interest Publications Inc. v. Anti-Globalization Domains, WIPOCase No. D2003-0869)); PepsiCo, Inc. v. "The Holy See", WIPO Case No. D2003-0229 (citing both WIPO and NAF UDRP decisions).4
The Panel therefore concludes that the disputed domain name was registered and is being used by Respondent in bad faith under paragraph 4(b)(iv) of the Policy.
7. Decision
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 <twıtter.com> [xn--twtter-q9a.com] be transferred to Complainant.
Nasser A. Khasawneh
Sole Panelist
Date: June 15, 2014
1 It is common practice for a panel to undertake limited research by visiting the website to which the disputed domain name routes, see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, paragraph 4.5.
2 Under this second prong of UDRP paragraph 4(a), the Complaint goes on to allege of bad faith, which has little direct bearing on the issue of rights or legitimate interests.
3 In Compagnie Gervais Danone v. Ibrahim kosun, danonesu.com, WIPO Case No. 2008-1085, the panel also citedJustice for Children v. R neetso / Robert W. O’Steen, WIPO Case No. D2004-0175 (ordering transfer even where criticism was expressly targetted at complainant’s activities); Lockheed Martin Corporation v. Ning Ye, WIPO Case No. D2000-1733 (anti-Chinese government criticism, although there was some evidence of commercial use); compare Bridgestone Firestone, Inc., Bridgestone/Firestone Research, Inc., and Bridgestone Corporation v. Jack Myers, WIPO Case No. D2000-0190 (protected speech where criticism related to complainant company).
4 The Complaint also contends that bad faith is shown because Respondent “may” have provided a false contact address in his registration records: “a simple GOOGLE search of the address provided does not appear to provide a true address . . . .” In fact, the Center successfully couriered the Notification of these proceedings to the provided address, and Respondent himself signed the receipt of delivery.