{ "case_number": "CAC-UDRP-101464", "time_of_filling": "2017-03-09 09:54:25", "domain_names": [ "Franke-servisi.com" ], "case_administrator": " Iveta Špiclová (Czech Arbitration Court) (Case admin)", "complainant": [ "Franke Technology and Trademark Ltd" ], "complainant_representative": null, "respondent": [ "hakan gUlsoy" ], "respondent_representative": null, "factual_background": "The Complainant is a Swiss company founded by Hermann Franke in Rorschach, Switzerland as a sheet-metal business in 1911. By 1974 the Franke Group had expanded significantly with 13 subsidiaries and various licensees Europe-wide. In 1989 the company expanded further and today is a global group with some 70 subsidiaries and around 9000 employees in 37 countries (including related companies), generating aggregate sales of CHF 2.1 billion. \r\n\r\nThe Franke Group consists of four businesses: (1) Franke Kitchen Systems being integrated systems for food preparation and cooking, including sinks, taps, worktops, hoods and cooking appliances; (2) Franke Foodservice Systems, namely kitchen equipment, supplies and a broad range of services for leading restaurant chains; (3) Franke Water Systems, various integrated systems for private bathrooms and semi-\/public washrooms, including taps, showers, sinks, accessories, water management systems and (4) Franke Coffee Systems and machines including superautomatics, traditionals and brewers.\r\n\r\nThe Disputed Domain Name, franke-servisi.com, was registered on 26 November 2016 by the Respondent, located in Turkey, and operating as a repairer or otherwise unauthorized Franke Service agent --based on the website to which the Disputed Domain Name resolves. \r\n\r\nThe Complainant’s trademark registrations (as above) predate the registration of the Disputed Domain Name and the Complainant has previously successfully challenged several FRANKE domain names through UDRP processes e.g. WIPO case, D2016-1120, DCO2016-0021, D2016-0686 and D2016-0663.\r\n\r\nNo Response has been filed in this case. \r\n\r\nThat does not mean the Complainant wins by default, rather it must still make out its burden of proof and the three elements required under the UDRP. \r\n", "other_legal_proceedings": "The panel is not aware of any other proceedings. ", "no_response_filed": "NO ADMINISTRATIVELY COMPLIANT RESPONSE HAS BEEN FILED.\r\n\r\nPARTIES' CONTENTIONS:\r\n\r\nCOMPLAINANT:\r\n\r\nRights \r\nThe Complainant says the Disputed Domain Name includes the entirety of the Complainant’s name and word mark, FRANKE, and the addition of the generic word for ‘service’ in Turkish adds nothing that distinguishes but rather compounds confusion by suggesting a connection, such that the Respondent is an authorized dealer, sales agent or licensee or similar. The Complainant cites the WIPO Overview on Selected UDRP Questions, Second Edition (\"WIPO Overview 2.0\"), paragraph 1.2. and says that the Respondent is representing it is doing authorized business in Turkey using the Complainant`s trademark. It is well established that the suffix, here .com, is ignored for the purposes of assessing similarity under the Policy, see WIPO Case No. D2014-0581(sledge). The Complainant says it has rights in a name or mark similar to the Disputed Domain Name. \r\n\r\nLegitimate Rights and Interests \r\nThe Complainant says the Respondent is not commonly known by the Disputed domain name. The WHOIS information describes the Respondent as Hakan gUlsoy. The Respondent has not by virtue of the content of the website, nor by its use of the Disputed Domain Name shown use in connection with a bona fide offering of goods or services. The Respondent is using the Disputed Domain Name to attract internet users to its website where it states they are “Yetkili Servis Merkezi” (in English by Google Translator: “Authorized Service Center”). However, the Respondent is not an authorized repair center. The FRANKE logotype in red appears prominently on the top left of the website and strongly suggests that there is a connection with the Complainant. Moreover, the use of the word FRANKE (i) in the Disputed domain name and (ii) also on multiple occasions in the website text, further creates the impression that there is some official or authorized link with the Complainant in relation to repairs and services within Turkey, especially in the Istanbul area. In addition, the website invites visitors to contact the Respondent via the telephone number 444 0 569 or its link “Servis Talep Formu” (in English: “Service Request Form”) which was not working at the time of filing of the Complaint. See WIPO Case No. D2015-1024 Steven Madden, Ltd. v. Daniel Monroy (respondent collected personal information from internet visitors to the website such as name, phone number, email address, age etc who filled out a form, where the Panel noted that: “users presumably would not provide such data unless they believe they are dealing with Complainant or with a representative of Complainant…). This is an attempt to “phish” for users’ personal information by the Respondent is neither a bona fide offering of goods and services nor a legitimate non-commercial or fair use pursuant to the Policy. Personal data is a valuable commodity and eliciting such data as described is not a legitimate non-commercial or fair use of the Disputed Domain Name without intent for commercial gain to misleadingly divert consumers, pursuant to Policy paragraph 4(c)(iii). \r\n\r\nThe Complainant says Oki Data Americas, Inc. v. ASD, Inc. WIPO Case No. D2001–0903, is not applicable here as the Oki Data conditions are not met in this case as: (1) the Respondent is not offering the Complainant’s products or services through the Disputed Domain Name, but rather appears to be offering an appliance repair and maintenance service; (2) the Respondent does not publish a disclaimer on the challenged pages. The website merely points out that the logo and brand name on the website and in the announcements are the registered trademark of the relevant company and they serve as special technical service of Franke brand. This proves that Respondent had prior knowledge of the Complainant’s trademark and tried to take advantage of it and create an association with the business of the Complainant; (3) the Respondent is depriving the Complainant of reflecting its own mark in the Disputed domain name; and (4) the Respondent presents themselves as the trademark owner by using the Complainant`s official trademark (being the logo mark comprised of the word mark in color). In short the Respondent's use of the Disputed domain name creates an overall impression that they are the Complainant. \r\n\r\nBad Faith\r\nThe Complainant says that its registered marks predate the registration of the Disputed Domain Name and the Respondent has never been authorized by the Complainant to register the Disputed Domain Name. In light of the website content, it is clear that the Respondent was aware of the Complainant’s trade marks at the time of registration and, therefore, the Disputed Domain Name was registered in bad faith. \r\n\r\nThe Complainant also says it tried to contact the Respondent on 31 January 2017 through a Cease and Desist letter and reminders were sent on 10 February 2017 and 16 February 2017 to the email address listed in the WHOIS record and to the email address listed on the website, however, no reply was received and no Response to this Complaint and process. It cites News Group Newspapers Limited and News Network Limited v. Momm Amed Ia, WIPO Case No. D2000-1623 (failure to reply to cease and desist relevant to bad faith analysis); Nike, Inc. v. Azumano Travel, WIPO Case No. D2000-1598 (same) and America Online, Inc. v. Antonio R. Diaz, WIPO Case No. D2000-1460 (same). \r\n\r\nHere the Complainant says the Respondent has never been granted permission to register the Disputed Domain Name, it takes advantage of the FRANKE trademark by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s products, services, website or location. Further, it intentionally chose the Disputed Domain Name based on registered and well-known trademark in order to generate more traffic to its business. The Respondent is using the Disputed Domain Name to intentionally attempt to attract, for commercial gain, internet users to the website, by creating a likelihood of confusion with the Complainant’s trademarks as to the source, sponsorship, affiliation or endorsement of its website. This conduct has been considered as bad faith under the Policy, and other WIPO decisions have also arrived to the same conclusion, see Philip Morris Incorporated v. Alex Tsypkin, WIPO Case No. D2002-0946 Pursuant to Policy paragraph 4(b)(iv), this constitutes evidence of both bad faith registration and bad faith use, for the purposes of paragraph 4(a)(iii)). See also WIPO case no. D2014-1010 (