Westmore · UDRP DecisionLeovegascasino.com
The Panel ordered transfer of <leovegascasino.com>. It found the domain confusingly similar to the Complainant’s LEO VEGAS mark because it incorporated the mark in full and added the descriptive term “casino.” The Respondent lacked rights or legitimate interests because the domain had remained on a registrar parking page, the Respondent was not authorized or commonly known by the domain, and no legitimate use was shown. Although the domain was registered before the Complainant’s trademark registration, the Panel found it more likely than not that the Respondent knew of the Complainant when registering the domain, given the invented name, the casino-related term, and the timing around the Complainant’s business launch. Passive holding and the Respondent’s default further supported bad faith.
The timeline behind leovegascasino.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 leovegascasino.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
This decision illustrates that registration before a complainant’s formal trademark registration does not invariably defeat the bad-faith element. The Panel relied on evidence predating or contemporaneous with the domain registration: the Complainant’s 2011 LEO VEGAS domain names, its January 2012 business launch, the invented nature of the name, and the domain’s addition of the directly relevant term “casino.” The case also shows that passive holding is assessed contextually rather than treated as automatically conclusive.
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 Leo Vegas Gaming Ltd. v. Claes Bergström Case No. D2015-1135 1. The Parties The Complainant is Leo Vegas Gaming Ltd. of Sliema, Malta, represented by Baker & McKenzie, Sweden. The Respondent is Claes Bergström of Huddinge, Sweden. 2. The Domain Name and Registrar The disputed domain name <leovegascasino.com> (the “Disputed Domain Name”) is registered with Ascio Technologies Inc. (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 2, 2015. On July 2, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On July 3, 2015, the Registrar transmitted by email to the Center its verification response confirming that the 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 the Respondent of the Complaint, and the proceedings commenced on July 24, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was August 13, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 14, 2015. The Center appointed John Swinson as the sole panelist in this matter on August 24, 2015. 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 Leo Vegas Gaming Ltd., an online betting and gaming company registered in Malta. The Complainant launched its casino website in January 2012, which currently offers over 350 different games and gaming types. The Complainant owns an EU Community Trade Mark for LEO VEGAS, with registration date July 23, 2013 (the “Trade Mark”). The Complainant also owns a number of domain names which incorporate the Trade Mark, including <leovegas.com> (registered on February 12, 2011), <leovegas.se> (registered on March 3, 2011) and <leovegas.nu> (registered on August 18, 2011), all of which currently resolve to the online casino operated by the Complainant. The Respondent is Claes Bergström, an individual, of Sweden. The Respondent did not file a Response, and consequently little information is known about the Respondent. The Respondent registered the Disputed Domain Name on January 25, 2012. The Disputed Domain Name resolves to a parking page. 5. Parties’ Contentions A. Complainant The Complainant’s contentions are as follows: Identical or Confusingly Similar The Complainant submits that the Disputed Domain Name is confusingly similar to the Trade Mark and to the Complainant’s registered business name Leo Vegas Gaming Ltd. The Disputed Domain Name only differs from the Trade Mark by its inclusion of the term “casino”. This term is descriptive of gambling, gaming and betting services. As such, the Complainant submits that this addition increases the likelihood of confusion since these services comprise the Complainant’s core business. Rights or Legitimate Interests The Complainant submits that it has not granted the Respondent any license or authorized its use of the Trade Mark. To the Complainant’s knowledge, the Respondent does not hold any registered trade marks or other rights in relation to the Disputed Domain Name that could justify the registration of the Disputed Domain Name. The Disputed Domain Name has been parked since it was registered in 2012. Therefore, the Complainant submits that it appears the Respondent never had any real intention of using the Disputed Domain Name for a legitimate purpose. The Respondent has not made any demonstrable preparations to use the Disputed Domain Name in connection with a bona fide offering of goods or services or to make a legitimate noncommercial or fair use of the Dispute Domain Name. Also, there is nothing to indicate that the Respondent is dependent on or is commonly known by the Disputed Domain Name. Therefore, the Complainant submits that there is a risk the Respondent’s registration and use of the Disputed Domain Name will damage the Trade Mark. Registration and Use in Bad Faith The Complainant submits that the Disputed Domain Name was registered and is being used in bad faith. The Trade Mark is a fictitious mark, so it seems unlikely that the Respondent would have registered the Disputed Domain Name without knowledge of the Complainant’s business, especially with the addition of the term “casino” which is the type of service that the Complainant is known for. The Complainant submits that its business has become well known among consumers in Sweden and around the world. It has won a number of awards since 2013. The Complainant submits that, as the Respondent registered the Disputed Domain Name around the same time as the Complainant’s business began to take off, it is obvious that the Respondent registered the Disputed Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Disputed Domain Name to the Complainant for valuable consideration in excess of the Respondent’s out-of-pocket expenses directly related to the Disputed Domain Name. Alternatively, the Complainant submits that the Respondent is attempting to use the Complainant’s reputation to divert Internet users to the website at the Disputed Domain Name. The Complainant sent a cease and desist letter to the Respondent on June 23, 2015, but did not receive a response to that letter. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings To succeed, the Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied, namely: (i) the Disputed 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 Disputed Domain Name; and (iii) the Disputed Domain Name has been registered and is being used in bad faith. The onus of proving these elements remains on the Complainant even though Respondent has not filed a Response. A. Procedural Issues The Respondent’s failure to file a response does not automatically result in a decision in favour of the Complainant (see, e.g ., Airbus SAS, Airbus Operations GmbH v. Alesini Pablo Hernan / PrivacyProtect.org , WIPO Case No. D2013-2059 ). However, the Panel may draw appropriate inferences from the Respondent’s default. B. Identical or Confusingly Similar Paragraph 4(a)(i) of the Policy provides that the Complainant must establish that the Disputed Domain Name is identical or confusingly similar to the Trade Mark. The Panel considers that the Disputed Domain Name is confusingly similar to the Trade Mark. The Trade Mark has been wholly incorporated into the Disputed Domain Name and combined with a descriptive term ( i.e. “casino”). As the Complainant submitted, “casino” is a term that describes the Complainant’s services, and that an Internet user is likely to associate with the Complainant. Also, it is likely that an Internet user would interpret this addition as subordinate to the Trade Mark, which is the dominant and distinctive part of the Disputed Domain Name (see, e.g. , DPD Dynamic Parcel Distribution GmbH & Co.KG. v. Barath Singh , WIPO Case No. D2014-1823 and the case cited therein). These factors serve to increase the confusing similarity. The Complainant succeeds on the first element of the Policy. C. Rights or Legitimate Interests Paragraph 4(a)(ii) of the Policy provides that the Complainant must establish that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. The Complainant is required to make out a prima facie case showing that the Respondent lacks rights or legitimate interests. The Panel finds that the Complainant has made out a prima facie case for the following reasons: - The Respondent has not used, or made demonstrable preparations to use, the Disputed Domain Name in connection with a bona fide offering of goods or services. The website at the Disputed Domain Name displays a Registrar parking page, and appears to have done so since it was registered in January 2012. In the circumstances, such use is not bona fide . - The Complainant has not authorized any use of the Disputed Domain Name by the Respondent. - The Respondent has not been commonly known by the Disputed Domain Name. - The Respondent has not been making a legitimate noncommercial or fair use of the Disputed Domain Name without intent for commercial gain. Again, there is no content at the Disputed Domain Name, or other evidence before the Panel, which would suggest such use. The Respondent had the opportunity to demonstrate his rights or legitimate interests, but did not do so. As such, the prima facie case established by the Complainant has not been rebutted and the Complainant succeeds on the second element of the Policy. D. Registered and Used in Bad Faith Paragraph 4(a)(iii) of the Policy provides that the Complainant must establish that the Respondent registered and subsequently used the Disputed Domain Name in bad faith. The Complainant has a registered Trade Mark since July 23, 2013. The Complainant first registered its domain names during the course of 2011. It is unclear from the Complaint when exactly when the Complainant registered its company name or first used its company name. Presumably it was before the Complainant’s website began operating in January 2012. The domain names and the company name all reflect the Trade Mark. The Disputed Domain Name was registered on January 25, 2012. Reputation of the Complainant after January 25, 2012 is not relevant when considering bad faith registration of the Disputed Domain Name. Although the Disputed Domain Name was registered earlier than the Trade Mark (which will often result in a finding that there was no bad faith registration), in these circumstances the Panel considers it likely that the Respondent had knowledge of the Complainant and its business at the time he registered the Disputed Domain Name. As suggested by the Complainant, it is unlikely that the Respondent registered by chance a domain name that is identical to, and incorporates a term indicative of, the Complainant’s business, and at around the same time the Complainant was launching its business. This is particularly the case given that the dominant part of the Disputed Domain Name is a fictitious name invented by the Complainant, and not a generic term. In the prior decision of Royal Bank of Canada, Dain Rauscher Corporation and Dain Rauscher Incorporated v. RBCD Ain Rauscher , WIPO Case No. D2001-1236 , the respondent registered a domain name shortly after a press release was issued announcing a change of company name or merger. Bad faith was found in such circumstances. The finding of bad faith here is supported by the fact that, since its registration, the Disputed Domain Name has resolved to a Registrar parking page. While passive holding of a domain name does not always result in a finding of bad faith, the Panel considers that in the circumstances, such a finding is appropriate. This is based on: - it being more likely than not that the Respondent was aware of the Complainant at the time he registered the Disputed Domain Name; - the Respondent passively holding the Disputed Domain Name; and - the Respondent’s failure to file a Response or make any attempt to rebut the claims made by the Complainant. See, e.g. , Ladbroke Group Plc v. Sonoma International LDC , WIPO Case No. D2002-0131 . Based on the information before the Panel, the Panel concludes that the Respondent registered and is using the Disputed Domain Name in an attempt to attract, for commercial gain, Internet users to his website by creating a likelihood of confusion with the Complainant’s business, or for the purpose of selling the Disputed Domain Name to the Complainant at some future time. The Complainant succeeds on the third element 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 <leovegascasino.com> be transferred to the Complainant. John Swinson Sole Panelist Date: September 7, 2015
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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