Westmore · UDRP DecisionBets10.site
The Panel ordered transfer of <bets10.site>. It found the domain identical or confusingly similar to the Complainant’s registered BETS10 mark because it incorporated the mark in its entirety and the “.site” gTLD did not affect the comparison. The Respondent lacked rights or legitimate interests because there was no authorization, evidence that the Respondent was commonly known by the domain, or bona fide offering. Bad faith was established from the Respondent’s knowledge of the mark and use of the domain for competing online betting services intended to attract users for commercial gain through confusion.
The timeline behind bets10.site
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
This case illustrates a direct-targeting pattern in which a domain consists solely of a pre-existing trademark plus a gTLD and is used for services competing with those of the trademark owner. The historical competing use remained significant even though the website was inactive when the decision was issued. The case also shows that a panel may select English despite a Turkish registration agreement where the respondent receives bilingual communications, raises no objection, and does not participate.
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 Realm Entertainment Limited v. Ferhat Aydin Case No. D2017-1258 1. The Parties The Complainant is Realm Entertainment Limited of Ta’ Xbiex, Malta, represented by Ports Group AB, Sweden. The Respondent is Ferhat Aydin of Istanbul, Turkey. 2. The Domain Name and Registrar The disputed domain name <bets10.site> is registered with Nics Telekomünikasyon Ticaret Ltd. Sti. (the “Registrar”). 3. Procedural History The Complaint in English was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 30, 2017. On June 30, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 1, 2017, 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. Pursuant to the Complaint submitted in English and the registrar verification dated July 1, 2017 stating that Turkish is the language of the registration agreement of the disputed domain name, on July 3, 2017, the Center sent a request in English and Turkish that the Parties submit their comments on the language of the proceeding. On July 6, 2017, the Complainant submitted its request for English to be the language of the proceeding. The Respondent did not submit any comment on the language of the proceeding. 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 in English and Turkish of the Complaint, and the proceedings commenced on July 10, 2017. In accordance with the Rules, paragraph 5, the due date for Response was July 30, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 31, 2017. The Center appointed Dilek Ustun Ekdial as the sole panelist in this matter on August 2, 2017. 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 a limited liability company which is incorporated in Malta. Since 2011, the Complainant runs a game site at “www.bets10.com”. Under the name “Bets10” the Complainant offers a wide range of online gambling products and games. The Complainant holds the following European Union trade marks registered for financial, telecommunication services and gambling, inter alia : - European Union trade mark BETS10 (No. 009941139), filed on May 4, 2011, registered on September 14, 2011, in the following classes: 36, 38 and 41; - European Union trade mark BETS10 (No. 012403713), filed on December 9, 2013, registered on May 5, 2014, in the following classes: 36, 38 and 41. According to the WhoIs information as confirmed by the Registrar, the disputed domain name <bets10.site> was registered by the Respondent on August 26, 2016. The Complainant submitted evidence showing that the disputed domain name resolved to a website in Turkish, through which the Respondent offered competing services, i.e. , online betting services. The disputed domain name does not currently resolve to an active website. 5. Parties’ Contentions A. Complainant According to the Complainant the disputed domain name is identical or confusingly similar to the Complainant’s BETS10 trademarks. The addition of the generic Top-Level Domain (“gTLD”) “.site” does not have any impact on the overall impression of the dominant portion of the disputed domain name and is therefore irrelevant to determine the confusing similarity of the disputed domain name to the trademarks. The Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant has not found that the Respondent has any personal name or that there is any name of any service or product range provided by the Respondent corresponding to the disputed domain name. It is also clear that no license or authorization of any other kind has been given by the Complainant to the Respondent to use the trademark. Controls made on the website at the disputed domain name have concluded that the site is used to make a profit using the Complainant’s business by using the BETS10 trademark for the same kind of business. The Complainant has the exclusive right to use the mark BETS10. The usage of the disputed domain name strongly suggests that it was registered with the mark BETS10 in mind and to commercially profit from misleading consumers searching for information about the Complainant’s business. The Complainant tried to contact the Respondent on August 31, 2016 through a cease-and-desist letter. No response was received. According to the Complainant, the disputed domain name was registered and is being used in bad faith. The Respondent is using the disputed domain name to intentionally attempt to attract, for commercial gain, Internet users to the website of the disputed domain name, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the website. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1 Language of the Proceeding Although the language of the Registration Agreement of the disputed domain name is Turkish, the Panel determines in accordance with the Rules, paragraph 11(a) that the language of this administrative proceeding shall be English. The Panel finds that it would be inappropriate to conduct the proceeding in Turkish and request a Turkish translation of the Complaint, noting that the Respondent has failed to raise any objection with regard to the language of the proceeding, or to respond in any way to the Complaint, despite having received all communication from the Center in Turkish and in English. 6.2 Substantive Issues Paragraph 15(a) of the Rules requires the Panel to decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. Under paragraph 4(a) of the Policy, the Complainant bears the burden of showing: (i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and (ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) that the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Panel finds that the Complainant has established rights in the trademark BETS10 through its registration and use. The Panel concurs with the opinion of several prior UDRP panels which have held that, when a domain name wholly incorporates a complainant’s registered mark that may be sufficient to establish confusing similarity for purposes of the Policy. See, e.g. , Kabushiki Kaisha Hitachi Seisakusho (d/b/a Hitachi Ltd) v. Arthur Wrangle , WIPO Case No. D2005-1105 ; Oki Data Americas, Inc. v. ASD, Inc ., WIPO Case No. D2001-0903 ; Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr ., WIPO Case No. D2000-1525; EAuto, L.L.C. v. Triple S. Auto Parts d/b/a Kung Fu Yea Enterprises , Inc. , WIPO Case No. D2000-0047 ; Bayerische Motoren Werke AG v. bmwcar.com , WIPO Case No. D2002-0615 . Here, the disputed domain name incorporates the Complainant’s BETS10 trademark in its entirety, without modification or addition. The addition of the gTLD “.site” does not have any impact on the overall impression of the dominant portion of the disputed domain name. Therefore, the Panel finds that the requirement of paragraph 4(a)(i) of the Policy is met. B. Rights or Legitimate Interests The Respondent has not provided any evidence of the type specified in paragraph 4(c) of the Policy, or any other circumstances giving rise to a right or legitimate interest in the disputed domain name. It is clear that the Respondent has not demonstrated any bona fide offering of goods and services by its using the disputed domain name. Nor has the Respondent shown that it has been commonly known by the disputed domain name. Rather, the evidence of the Complainant suggests that the Respondent has used the disputed domain name in an attempt to trade off the goodwill associated with the Complainant’s trademark. The Complainant also showed, inter alia , that the Respondent has neither a license nor any other permission to use the Complainant’s trademark in the disputed domain name or otherwise. The Panel finds that the Complainant has made a prima facie case that the Respondent lacks rights or legitimate interests, and the Respondent has failed to demonstrate such rights or legitimate interests. The Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith The Panel is of the opinion that when the Respondent registered the disputed domain name it knew that BETS10 was the trademark of the Complainant, and that the Respondent registered the disputed domain name in bad faith. It is obvious to this Panel that by using the disputed domain name, the Respondent has intentionally attempted to attract for commercial gain, Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website. In view of the above, the Panel finds that the Respondent has registered and used the disputed domain name in bad faith, in accordance with paragraph 4(a)(iii) of the Policy. There is no suggestion that the Respondent had any intention of legitimate use, that it enjoys a legitimate connection to the disputed domain name or that there is conceivable good faith use for the disputed domain name. After examining all circumstances surrounding the registration and use of the disputed domain name, the Panel finds that the Respondent registered and is using the disputed domain name in bad faith. Accordingly the Panel finds in favor of the Complainant 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 <bets10.site> be transferred to the Complainant. Dilek Ustun Ekdial Sole Panelist Date: August 12, 2017
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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