Westmore · UDRP DecisionTobwin.com
The Panel ordered transfer of <tobwin.com>. It found the Domain Name confusingly similar to the Complainant’s BWIN mark because it consisted of BWIN preceded only by “to.” The Respondent had no rights or legitimate interests and had effectively renounced any interest in the Domain Name. Bad faith was established by the Respondent’s registration of the Domain Name with the BWIN mark in mind and its use to redirect Internet users to a competing online gaming website.
The timeline behind tobwin.com
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
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The decision illustrates how a respondent’s later acquisition of an existing domain name may be assessed against trademark rights that predate that acquisition. It also shows the evidentiary significance a panel may attach to competitive redirection and to a respondent’s own comments about traffic, particularly where no formal Response rebuts the complainant’s case.
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 bwin.party digital entertainment plc and ElectraWorks Limited v. 1Bet2Bet Ltd. Case No. D2016-0122 1. The Parties The Complainants are bwin.party digital entertainment plc and ElectraWorks Limited, both of Gibraltar, Overseas Territory of the United Kingdom of Great Britain and Northern Ireland (“Overseas Territory of the United Kingdom”) represented by IPQ IP Specialists AB, Sweden. The Respondent is 1Bet2Bet Ltd. of London, United Kingdom of Great Britain and Northern Ireland (“United Kingdom”). 2. The Domain Name and Registrar The disputed domain name <tobwin.com> (the “Domain Name”) 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 January 20, 2016. On January 20, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On January 20, 2016, the Registrar transmitted by email to the Center its verification response confirming 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on January 25, 2016. In accordance with the Rules, paragraph 5, the due date for Response was February 14, 2016. The Respondent submitted an informal communication on January 26, 2016 but did not submit a formal response. Accordingly, the Center sent a procedural update on February 15, 2016. The Center appointed Ian Lowe as the sole panelist in this matter on February 24, 2016. 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 bwin.party digital entertainment plc is the ultimate parent company of the bwin.party group of companies (“Bwin.Party”). Bwin.Party is one of the world’s largest online gaming companies and is listed on the London Stock Exchange. The Complainant ElectraWorks Limited is an indirectly wholly owned subsidiary of the Complainant bwin.party digital entertainment plc. The two Complainants are collectively referred to as “the Complainant” unless otherwise specified. Bwin.Party (and its predecessors) has provided online gambling services since 1997, and as of July 2015 it had a market capitalization of around GBP 948.75 million. Bwin.Party’s total revenue in 2014 was EUR 611.9 million. The BWIN brand has been used since August 2006 and members of the Bwin.Party Group, including the Complainant ElectraWorks Limited, own over 260 trademark registrations around the world comprising the BWIN mark, including Community Trademark number 7577281 BWIN registered on December 10, 2009 and Community Trademark number 7577331 BWIN and device registered on September 2, 2009. The Domain Name was first registered on June 13, 2005 and was registered by the Respondent on August 8, 2015. The Domain Name resolved at least until January 11, 2016 to the website of Netplay Poker Ltd. Text on the website stated that Netplay Poker Ltd was “one of the world’s leading online gambling groups, providing Sports Betting, Financials, Casino, Poker, Games and Bingo.” The domain name <netplaypoker.com> is also owned by the Respondent. In response to a letter from the Complainant in respect of the registration and use of the Domain Name, the Respondent stated “I have no intention of infringing. Tobwin.com is not used is not getting traffic. I am willing to cooperate and my question is what do you want me to do.” The Respondent did not reply to further communications from the Complainant. 5. Parties’ Contentions A. Complainant The Complainant contends that the Domain Name is confusingly similar to its BWIN trademarks, that the Respondent has no rights or legitimate interests in respect of the Domain Name, and that the Respondent registered and is using the Domain Name in bad faith within the meaning of paragraph 4(b)(iv) of the Policy. B. Respondent The Respondent did not reply to the Complainant’s contentions, save for a short email to the Center in which it stated: “Dear Sir we are not renew this domain. Now we are not owner this domain. www.tobwin.com godaddy.com Owner on this domain Good luck.” 6. Discussion and Findings According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name the Complainant must prove that: (i) the Domain Name is identical or confusingly similar to a trademark 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 has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Complainant has uncontested rights in the trademark BWIN, both by virtue of its many trademark registrations around the world and as a result of its widespread goodwill and reputation acquired through use of the BWIN mark over several years. Ignoring the generic Top-Level Domain (“gTLD”) “.com”, the Domain Name comprises the Complainant’s mark together only with the prefix “to”. In the Panel’s view, the additional letters “to” do not detract from the distinctiveness of the BWIN mark and the Domain Name is accordingly confusingly similar to a mark in which the Complainant has rights. B. Rights or Legitimate Interests The Complainant has made out a strong prima facie case that the Respondent could have no rights or legitimate interests in respect of the Domain Name. In its email to the Center, the Respondent indicated that it had renounced any interest in the Domain Name and accordingly failed to counter the prima facie case established by the Complainant. In the circumstances, the Panel finds that the Respondent does not have any rights or legitimate interests in respect of the Domain Name. C. Registered and Used in Bad Faith Until shortly before the Complaint was filed, the Domain Name resolved to the website of Netplay Poker Ltd, a competitor of the Complainant providing gaming services, whose domain name, <netplaypoker.com>, is also registered to the Respondent. In the Panel’s view, the comment in the email from the Respondent to the Complainant saying that the Domain Name “is not getting traffic…” strongly suggests that the Respondent registered the Domain Name with a view to attracting traffic to its competing website and that it registered it with the Complainant and its rights and reputation in the trademark BWIN in mind and to take unfair advantage of the trademark. The Panel considers that subsequent use of the Domain Name to redirect to the Respondent’s competing website amounts to paradigm bad faith for the purposes of paragraph 4(a)(iii) of the Policy. The Panel accordingly finds that the Domain Name was registered and is being used in bad faith. 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 <tobwin.com> be transferred to the Complainant. Ian Lowe Sole Panelist Date: March 6, 2016
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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