Westmore · UDRP DecisionDafabetuganda.com
The Panel found <dafabetuganda.com> confusingly similar to Complainant’s registered DAFABET mark. It did not decide whether Respondent had rights or legitimate interests because Complainant failed to prove bad-faith registration and use. Respondent registered the domain shortly after Complainant applied for its Ugandan trademark but before that registration issued, and the evidence did not establish Respondent’s awareness of Complainant’s claimed rights. Respondent also had senior DAFABET rights in other countries and an undisputed reputation in betting circles, making good-faith reliance on its own perceived rights more likely. Complainant presented no sufficient evidence that the parked page constituted bad-faith use. The Complaint was denied, as was Respondent’s request for a finding of reverse domain name hijacking.
The timeline behind dafabetuganda.com
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The decision illustrates that owning a local trademark and showing confusing similarity do not establish targeting or bad faith where the respondent has substantially earlier rights in the same term elsewhere. Close timing between a complainant’s trademark application and domain registration was insufficient without persuasive evidence of respondent awareness, and passive holding did not establish bad-faith use without supporting evidence.
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 Dafabet Uganda Limited v. Angelito Teves, Emphasis Services Limited Case No. D2017-2469 1. The Parties Complainant is Dafabet Uganda Limited of Kampala, Uganda, represented by Apio, Byabazaire, Musanase & Co. Advocates, Uganda. Respondent is Angelito Teves, Emphasis Services Limited of Grand Turk, Turks and Caicos Islands, Overseas Territory of the United Kingdom of Great Britain and Northern Ireland (“United Kingdom”), represented internally. 2. The Domain Name and Registrar The disputed domain name <dafabetuganda.com> 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 December 14, 2017. On the same date, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 20, 2017, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing Respondent’s contact details. Complainant filed an amended Complaint on January 2, 2018. The Center verified that the Complaint together with the amended 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 Respondent of the Complaint, and the proceedings commenced on January 3, 2018. In accordance with the Rules, paragraph 5, the due date for Response was January 23, 2018. The Response was filed with the Center on January 24, 2018. The Center appointed Lawrence K. Nodine as the sole panelist in this matter on February 7, 2018. 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 Complainant offers an online auctioning service for household goods and appliances in Uganda and other parts of Africa on websites accessible through the domain names <dafabet.co.ug> and <dafabet.ug> (registered March 18, 2017, and March 20, 2017, respectively) and through a mobile application. On March 30, 2017, Complainant applied to register the trademark DAFABET (No. 58286) with the Registrar of Trademarks of the Republic of Uganda. The registration issued July 4, 2017. Respondent operates sports betting websites, including “www.dafabet.com” (registered on February 19, 2009), in the Philippines, the United Kingdom, Isle of Man, Overseas Territories of the United Kingdom, and Curaçao. Respondent ( i.e. , “Emphasis Services Ltd.”) states that it is the registered owner of the trademark D DAFABET and Design in the European Union (No. 012067138; registered February 17, 2014), shown below, as well as in the Philippines (for DAFABET) and Kenya. On April 26, 2017, Respondent registered the disputed domain name <dafabetuganda.com>. Currently, the disputed domain name resolves to a parked page. Respondent’s website claims that it began operations in 2004. 5. Parties’ Contentions A. Complainant Complainant asserts that the disputed domain name is confusingly similar to the DAFABET mark in which it owns rights and that the inclusion of “Uganda” exacerbates the confusion. According to Complainant, Respondent has no rights or legitimate interest in the disputed domain name as it is not using the disputed domain name to offer any bona fide goods or services in Uganda and, moreover, it is not authorized by Complainant to use the disputed domain name. As to Respondent’s bad faith registration and use, Complainant argues that this is evidenced by the fact that Respondent has registered the disputed domain name including the geographic indicator where it does not operate in an effort to confuse customers into interacting with Respondent. B. Respondent While Respondent does not dispute that the disputed domain name is confusingly similar to the DAFABET mark, Respondent argues that the similarity is due to Complainant’s unlawful use of Respondent’s DAFABET mark. Respondent maintains that it is the holder of senior rights in the DAFABET mark as it has used the mark in commerce for the past thirteen years and owns trademark registrations that predate Complainant’s registration. Moreover, considering Respondent’s pre-existing rights in the DAFABET mark, Respondent argues that Complainant cannot establish that Respondent’s registration and use of the disputed domain name was in bad faith. Respondent contends that its mark is internationally well-known and that it is Complainant rather than Respondent who is seeking to trade on the goodwill and reputation of the DAFABET mark. Respondent considers that Complainant has engaged in reverse domain name high jacking by filing this Complaint. 6. Discussion and Findings Citing technical issues, Respondent submitted its response the day after it was due. In the interest of deciding the Complaint on its merits, the Panel exercises its discretion and considers Respondent’s response. A. Identical or Confusingly Similar Respondent does not dispute that the disputed domain name is confusingly similar to the DAFABET trademark. Accordingly, Complainant has satisfied paragraph 4(a)(i) of the Policy with respect to the disputed domain name. B. Rights or Legitimate Interests Although Respondent has made a bona fide use of its domain name <dafabet.com>, it has not in fact used the disputed domain name <dafabetuganda.com>, which the record shows as a parked page. Because Complainant fails to prove bad faith as required by paragraph 4(a)(iii) of the Policy, the Panel need not decide whether Respondent’s parking of the disputed domain name suffices as bona fide use under paragraph 4(c)(iii) of the Policy. Accordingly, the Panel makes no finding with respect to paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith Complainant has failed to prove bad faith registration and use. Complainant has not proved that Respondent was aware of Complainant's claimed trademark rights in Uganda when it registered the disputed domain name. Respondent registered the disputed domain name on April 26, 2017, less than a month after Complainant applied for its mark on March 30 and well before Complainant’s registration issued on July 4, 2017. Complainant points to a report indicating that “100+” people had installed its related app by April 25, 2017, but this is not enough evidence to support a finding that Respondent probably knew of Complainant’s legal rights under the circumstances of this case. Regardless, even if Respondent was aware of Complainant’s claimed rights, Complainant has still fallen far short of proving by preponderance that Respondent registered the disputed domain name in bad faith intending to confuse Complainant’s Internet users. Given Respondent’s senior rights (by many years) in other countries and its undisputed well-known reputation in “betting” circles in many countries, it is plausible, indeed more likely, that Respondent registered the disputed domain name relying in good faith on its perception of its own rights. Complainant has also failed to demonstrate bad faith use as it has not attempted to demonstrate that Respondent’s parked page reflects any bad faith use. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions , Third Edition (“WIPO Overview 3.0”), section 3.3 (passive holding). Complainant has failed to satisfy paragraph 4(a)(iii) of the Policy. Given the fact that Complainant does have a registered trademark in Uganda – whether it is bona fide or otherwise – the Panel denies Respondent’s request for a finding of reverse domain name hijacking. 7. Decision For the foregoing reasons, the Complaint is denied. Lawrence K. Nodine Sole Panelist Date: February 21, 2018
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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