Westmore · UDRP DecisionBets10mobilbahis.com
The Panel ordered transfer of <bets10mobilbahis.com>. It found the domain confusingly similar because it combined the Complainant’s BETS10 and MOBILBAHIS marks in their entirety. The Respondent demonstrated no rights or legitimate interests, and the Panel found bad-faith registration and use based on the combination of the two marks, awareness of the Complainant, the cumulative circumstances surrounding the domain’s use, and use of a privacy shield.
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The decision illustrates the strong evidentiary significance of a domain that combines two marks associated with the same complainant. That combination supported both confusing similarity and an inference of awareness at registration. It also shows that an asserted descriptive meaning for part of a domain may carry little weight where another incorporated term remains unexplained and no evidence establishes legitimate use.
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. Registration Private, Domains By Proxy, LLC / Innmedia Solutions Case No. D2018-0365 1. The Parties The Complainant is Realm Entertainment Limited of Ta’ Xbiex, Malta, represented by Ports Group AB, Sweden. The Respondent is Registration Private, Domains By Proxy, LLC of Scottsdale, Arizona, United States of America (“United States”) / Innmedia Solutions of Tortola, Virgin Islands, Overseas Territory of the United Kingdom of Great Britain and Northern Ireland (“United Kingdom”). 2. The Domain Name and Registrar The disputed domain name <bets10mobilbahis.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 February 19, 2018. On February 19, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On February 20, 2018, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on February 26, 2018 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 amended Complaint on February 27, 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 the Respondent of the Complaint, and the proceedings commenced on March 5, 2018. In accordance with the Rules, paragraph 5, the due date for Response was March 25, 2018. The Respondent did not submit any formal response but submitted various email communications. Accordingly, on March 27, 2018, the Center notified the Parties that it would proceed to the Panel appointment. The Center appointed Willem J. H. Leppink as the sole panelist in this matter on April 9, 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 The following facts are undisputed. The Complainant is based in Malta and runs the online gambling websites “www.bets10.com” and “www.mobilbahis.com”. The Complaint provides gambling services on these websites since, respectively, 2011 and January 2016. The website “www.bets10.com” has 18 million active poker players, which encompasses the largest poker network in the world. The Domain Name was registered by the Respondent on July 19, 2017. The Domain Name resolves to a parking page that promotes the Registrar’s services (the “Website”). 5. Parties’ Contentions A. Complainant Insofar as relevant, the Complainant contends the following. The Complainant is the owner of several registrations for the word and design marks BETS10 and MOBILBAHIS, e.g. , European Union Trademark (word mark) BETS10, registration number 009941139, applied for on May 4, 2011, and registered on September 14, 2011 for goods and services in classes 36, 38 and 41 hereinafter referred to as the “BETS10 Trademark” and the European Union Trademark (word mark) MOBILBAHIS, registration number 016264921, applied for on January 19, 2017, and registered on May 9, 2017 for goods and services in classes 35, 36, 38, 41 hereinafter referred to as the “MOBILBAHIS Trademark”. The BETS10 Trademark and the MOBILBAHIS Trademark will be referred to as the “Trademarks”. The Domain Name is identical to the Trademarks or confusingly similar to the Trademarks. The Respondent does not have any rights in the Trademarks, nor is the Respondent a licensee of the Complainant. The Complainant has not given the Respondent any permission to register the Trademarks as a domain name. The Website is used to promote the Registrar’s services. The Website has previously been used for sponsored links. Bearing in mind the reputation and distinctiveness in the Trademarks, there is no believable or realistic reason for registration or use of the Domain Name other than to take advantage of the Trademarks. The Domain Name is not being used in relation to a bona fide offering of goods or services and the Respondent is not making legitimate or fair use of the Domain Name. There is no evidence that the Respondent has become commonly known as “Bets10” and/or “Mobilbahis”. Further, there is no indication that the Respondent is planning to use the Domain Name for any legitimate business. The usage of the Domain Name strongly suggests that the Domain Name is only registered to gain commercial profit by misleading consumers searching for information about the Complainant’s business. The Trademarks were registered and used by the Complainant well before the Respondent became the owner of the Domain Name. It is obvious that the Respondent was well aware of the Complainant’s business when registering the Domain Name. The Domain Name consists of a combination of the Trademarks which clearly indicates knowledge about the Trademarks. The Complainant has submitted a cease-and-desist letter which was sent to the Respondent. The Complainant did not receive a response to this letter. B. Respondent The Respondent did not submit a formal Response, but has sent a few short emails to the Center, which will be discussed below. 6. Discussion and Findings Pursuant to paragraph 4(a) of the Policy, the Complainant must prove each of the following three elements: (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 must demonstrate that it has rights in a trademark or service mark and, if so, the domain name must be shown to be identical or confusingly similar to that mark. The Complainant has shown that it has rights in the Trademarks. The Panel finds that the Domain Name is confusingly similar to the Trademarks as the Domain Name incorporates both the BETS10 Trademark and the MOBILBAHIS Trademark in their entirety. The combination of the two Trademarks in the Domain Name does not serve to distinguish the Domain Name from the Trademarks. Thus, the Panel finds that the Domain Name is confusingly similar to the Trademarks. For all the foregoing reasons, the Panel is satisfied that the first element of the Policy is met. B. Rights or Legitimate Interests Except for some email communications with the Center, the Respondent did to provide a Response to the Complainant’s contentions. For that reason, the Panel has carefully considered the factual allegations that have been made by the Complainant and are supported by the submitted evidence. In particular, the Respondent has failed to offer the Panel any of the types of evidence set forth in paragraph 4(c) of the Policy from which the Panel might have concluded that the Respondent has rights or legitimate interests in the Domain Name, such as: (i) use or preparation to use the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services prior to notice of the dispute; or (ii) being commonly known by the Domain Name (as an individual, business or other organization) even if the Respondent has not acquired any trademark or service mark rights; or (iii) making legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue. There is no evidence in the case file that the Respondent has any rights or legitimate interests in the Domain Name. The Respondent does not seem to be affiliated with the Complainant in any way. There is no evidence that “bets10mobilbahis” is the Respondent’s name or that the Respondent is commonly known as “bets10mobilbahis”. There is also no evidence that the Respondent is, or has ever been, a licensee of the Complainant or that the Respondent has ever asked, or has ever been permitted in any way by the Complainant to register or use the Complainant’s Trademark, or to apply for or use any domain name incorporating the Trademark. Furthermore, the use of the Domain Name cannot be considered a bona fide offering of goods or services. In particular, the Respondent did not demonstrate any use or demonstrable preparation to use the Domain Name in connection with a bona fide offering of goods or services. It is also clear that the Respondent is not making any legitimate noncommercial or fair use of the Domain Name. Finally, given the circumstances of this case, the Panel finds that the Respondent’s lack of rights or legitimate interests in the Domain Names may also be inferred by the fact that no formal, substantive response was filed by the Respondent. According to earlier UDRP panels, “non-response is indicative of a lack of interests inconsistent with an attitude of ownership and a belief in the lawfulness of one’s own rights” (see GA Modefine S.A. and Giorgio Armani S.p.A. v. Yoon-Min Yang , WIPO Case No. D2005-0090 ; and Pomellato S.p.A. v. Richard Tonetti , WIPO Case No. D2000-0493 ). The Panel has considered that the Respondent has alleged in one of his emails to the Center that the “mobil” and “bahis” are Turkish words for “mobile” and “betting”. The Panel considers this to be irrelevant for the decision in this matter as even if the MOBILBAHIS Trademark could be invalidated, the combination with BETS10 Trademark in the Domain Name, still does not give Respondent a legitimate interest or right. Therefore, based on the evidence, the Panel is satisfied that the second element of the Policy is met. C. Registered and Used in Bad Faith In light of the evidence filed by the Complainant and the absence of a reply, the Panel finds that the Complainant’s Trademarks and activities are well-known. In the Panel’s view there is no other plausible explanation why the Respondent registered the Domain Name, other than the Respondent being aware of the Complainant and the Trademarks. This is emphasized by the fact that the Domain Name incorporates both the BETS10 Trademark and the MOBILBAHIS Trademark. Although the lack of a substantive reply by the Respondent as such cannot by itself lead to the conclusion that there is use in bad faith, the cumulative circumstances as outlined in the decision are sufficient for the Panel to find that the use of the Domain Name by the Respondent is in bad faith. In addition, and in accordance with WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), in the Panel’s view it contributes to a finding of bad faith that the Respondent uses a privacy shield to hide its identity. In light of the above circumstances, including the use of the Domain Name in connection with advertisements promoting competing gambling services, the Panel is satisfied that the third element of the Policy is met and 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 Domain Name <bets10mobilbahis.com> be transferred to the Complainant. Willem J. H. Leppink Sole Panelist Date: April 23, 2018
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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