Westmore · UDRP Decision777lastchaos.com
The Panel ordered transfer of <777lastchaos.com> to gamigo AG. It found the domain confusingly similar to the Complainant’s registered LAST CHAOS mark because the mark remained recognizable and dominant despite the addition of “777.” On rights or legitimate interests, the Panel found that the Complainant had established a prima facie case based on the domain’s apparent connection with an online game identical or confusingly similar to the Complainant’s game, and it drew adverse inferences from Wang Meng’s failure to respond. For bad faith, the Panel relied on the incorporation of the mark, the Respondent’s awareness of it, the mark’s well-known character, the absence of a response, concealment through a privacy service, the related Vietnamese website, online forums, and the Complainant’s unrebutted allegations. Although the Complainant did not provide a printout or other direct evidence of the disputed domain’s website and the Panel could not access it, the Panel found registration and use in bad faith under Policy paragraph 4(b)(iv).
The timeline behind 777lastchaos.com
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
Westmore reconstructs the full history behind 777lastchaos.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
This decision illustrates a transfer based partly on circumstantial online evidence and adverse inferences where the complainant’s direct website evidence was notably incomplete. The Panel expressly criticized the absence of a website printout but found all three elements satisfied through the trademark’s incorporation, the related Vietnamese website, online forums, the Respondent’s default, use of a privacy service, and other cumulative circumstances.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION gamigo AG v. Wang Meng Case No. D2011-1659 1. The Parties The Complainant is gamigo AG of Hamburg, Germany, represented by Schulte Riesenkampff Rechtsanwaltsgesellschaft mbH, Germany. The Respondent is Wang Meng of Lu Quan, He Bei, China. 2. The Domain Name and Registrar The disputed domain name <777lastchaos.com> (the “Domain Name”) is registered with Name.com LLC (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) against Protected Domain Services on September 30, 2011. On September 30, 2011, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On September 30, 2011, the Registrar transmitted by email to the Center its verification response disclosing registrant Wang Meng and contact information for the Domain Name which differed from the named Respondent Protected Domain Services and contact information in the Complaint. The Center sent an email communication to the Complainant on October 3, 2011, 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 amendment to the Complaint on October 7, 2011. The Center verified that the Complaint together with the amendment to 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 the Respondent of the Complaint, and the proceedings commenced on October 17, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was November 6, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 8, 2011. The Center appointed Karen Fong as the sole panelist in this matter on November 17, 2011. 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. 4. Factual Background The Complainant is the registered proprietor of the trade mark LAST CHAOS under German trade mark registration number 302009025736 in Classes 9, 28 and 41. The trade mark was registered in 2008. The Complainant operates the German version of an on-line role-playing game called “Last Chaos.” They have been licensed by the developer and owner of the intellectual property of the game, Barunson Games Corporation (“BGC”) of Republic of Korea. A copy of the letter of confirmation from BGC was submitted with the Complaint. The Complainant also owns the domain name <lastchaos.de> whilst BCG owns the domain name <lastchaos.com>. Both domain names are connected to websites from which the genuine game is made available. According to the public WhoIs database, the Domain Name was created on November 11, 2010. It was registered in the name of the first Respondent a privacy registration service, Protected Domain Services (“PDS”). After the filing of the Complaint, PDS disclosed the underlying registrant of the Domain Name to be the second Respondent Wang Meng. 5. Parties’ Contentions A. Complainant The Complainant contends that the Domain Name is identical or confusingly similar to the LAST CHAOS trade mark, the Respondent has no rights or legitimate interests with respect to the Domain Name, and that the Domain Name was registered and is being used in bad faith. The Complainant requests transfer of the Domain Name. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Preliminary Procedural Issue There are two Respondents listed in the amendment to the Complaint, Protected Domain Services and Wang Meng. On November 16, 2011, the first Respondent has filed an Informative Filing to clarify its position as the Respondent in this proceeding which the Panel has considered. The Panel is satisfied that the first Respondent is a privacy domain name registration service and has no meaningful involvement in the registration and use of the Domain Name for the purposes of the below analysis. Accordingly, the Panel will treat the second Respondent as the sole Respondent in this proceeding. B. General According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name, the Complainant must prove each of the following, namely that: (i) The Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and (ii) The Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) The Domain Name was registered and is being used in bad faith. C. Identical or Confusingly Similar The Panel is satisfied that the Complainant has established that it has rights to the trade mark LAST CHAOS. Further this trade mark appears to be well-known to those who are interested in such on-line games. The threshold test for confusingly similarity involves the comparison between the trade mark and the domain name itself to determine likelihood of Internet user confusion. The trade mark would generally be recognizable within the domain name. In this case the Complainant’s registered trade mark LAST CHAOS is the dominant portion of the Domain Name. The addition of the numerals “777” does nothing to minimise the risk of confusion. For the purposes of assessing identity and confusing similarity under paragraph 4(a)(i) of the Policy it is permissible for the Panel to ignore the generic domain suffix “.com”. The Panel finds that the Domain Name is identical or confusingly similar to the trade mark in which the Complainant has rights. D. Rights or Legitimate Interests The Last Chaos game was launched in Germany in 2008 as was the registration of the trade mark LAST CHAOS. This predates the registration of the Domain Name. The Complainant alleges that the Respondent is using this Domain Name for software piracy. The Respondent is said to have stolen or copied the source code for the server and the client files of the German version of the game and is operating a pirate server under the name “777lastchaos” in rivalry against the Complainant. It competes with the Complainant by offering cheaper or free services in relation to features which the Complainant and BGC charge for. The Respondent generates income by charging users to play the game, donations from customers and generating advertising income. The Complainant has not provided a printout of the website connected to the Domain Name (the “Website”). nor other evidence to substantiate the allegations above. The Panel has been unable to access the Website but has been able to find the website “www.777lastchaos.vn” (the “VN Website”) which offers an on-line game which looks very much like the LAST CHAOS game that the Complainant is a licensee of. The VN Website has on its home page the web address “www.777lastchaos.com” and thus appears to be somehow connected to the Website. Whilst better evidence could have been submitted, from the on-line forums relating to “777lastchaos”, the person or entity responsible has registered and is using the name in relation to a game which is identical or confusingly similar to the Complainant’s name and game. The Panel finds that a prima facie case has been made out, a case calling for an answer from the Respondent. The Respondent has defaulted and the Panel is unable to conceive of any basis upon which the Respondent could sensibly be said to have any rights or legitimate interests in respect of the Domain Name. Further, paragraph 14 of the Rules provides that the Panel may draw such inferences from such a default as it considers appropriate. Accordingly, the Panel infers from the Respondent’s silence that the Complainant’s allegations are, in fact, correct. And the Panel finds that paragraph 4(a)(ii) of the Policy has been satisfied. E. Registered and Used in Bad Faith The Panel is satisfied that the Respondent must have been aware of the Complainant’s LAST CHAOS mark when it registered the Domain Name. The fact that the Domain Name incorporates the Complainant’s well-known trade mark in its entirety is in the Panel’s view evidence that the registration of the Domain Name was in bad faith. The Panel would not have had to consider whether this is a case of the passive holding of a domain name has the Complainant submitted evidence of the Website. However since that is not available, the Panel has to consider all the circumstances of the case to determine whether the Respondent is acting in bad faith. In paragraph 3.2 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition , examples of what may be cumulative circumstances found to be indicative of bad faith include the complainant having a well-known trade mark, no response to the complaint having been filed, and the registrant’s concealment of its identity. These factors have all been found here. Together with the Complainant’s allegations and the VN Website as well as the on-line forums, the Panel is satisfied that there has been use in bad faith. In the circumstances, the above shows 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 Domain Name <777lastchaos.com> be transferred to the Complainant. Karen Fong Sole Panelist Dated: December 5, 2011
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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