WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION La Société des Bains de Mer et du cercle des étrangers à Monaco v. Oded Keinan, Traffic Label Limited Case No. D2008-1388 1. The Parties
The Complainant is La Société des Bains de Mer et du cercle des étrangers à Monaco, of Monaco, représente by De Gaulle Fleurance & Associés, France.
The Respondent is Oded Keinan, Traffic Label Limited, of United Kingdom. 2. The Domain Names and Registrars
The disputed domain names and are registered with Ace of Domains, Inc. and D LLC. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 10, 2008. On September 12, 2008, the Center transmitted by email to Ace of Domains, Inc. and D LLC a request for registrar verification in connection with the domain names at issue. On September 19, 2008 and September 23, 2008, Ace of Domains, Inc. and D LLC transmitted by email to the Center their verification response confirming that the Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on September 29, 2008. The Center verified that the Complaint together with the amendment to the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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 September 30, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was October 20, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on October 21, 2008.
The Center appointed William F. Hamilton as the sole panelist in this matter on October 29, 2008. 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
In 1863, the Principauté de Monaco granted the Société des Bains de Mer et du cercle des étrangers à Monaco a casino and gambling monopoly within Monaco. For over 140 years, the Société has operated a casino and gambling business in Monaco.
The Société owns the trademark CASINO DE MONTE-CARLO, filed on August 13, 1996 and renewed on October 10, 2006, with the Monaco Trademark Office. The Société obtained and utilizes the domain name to promote its casino, gambling, and resort business.
The Respondent registered the domain names and on May 9, 2008. The domain name currently resolves to a landing page offering a variety of links to gambling related websites. 5. Parties' Contentions A. Complainant
The Complainant asserts the two disputed domain names are confusingly similar to the Complainant's trademark and domain name. The disputed domain name incorporates the principle terms of the Complainant's trademark omitting only the immaterial “de” and a hyphen and uses the letter “k” to transform “casino” to “kasino”. The second contested domain name similarly mimics the Complainant's trademark while replacing the letter “c” with a “k” and omitting the “de”.
The Complaint further asserts that the Respondent has no rights or legitimate interest in the Complainant's mark. The Complainant has not licensed nor in any manner authorized the use of its mark by the Respondent.
The Complainant lastly asserts the contested domain names were registered and used in bad faith with the obvious intent to trade on the Complainant's well-known mark. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
Under paragraph 4(a) of the Policy, the Complainant must prove each of the following:
(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.
The Complainant must carry its burden of proof by a preponderance of evidence. Bootie Brewing Company v. Deanna D. Ward and Grabebootie Inc.,WIPO Case No. D2003-0185. A. Identical or Confusingly Similar
The disputed domain names are confusingly similar to the Complainant's mark. The domain name consists of the exact words in the Complainant's mark. The sequence of words is identical to the Complainant's domain name. With respect to the mark, the order of the words is inverted leaving out the “de” and a hyphen present in the Complainant's mark while also changing the letter “c” to a “k”. Such minimal changes are insufficient to avoid confusion. See Société des Bains de Mer et du Cercle des Etrangers à Monaco v. Netsymmetrics,WIPO Case No. D2005-0339; Disney Enterprises, Inc. v. John Zuccarini, Cupcake City and Cupcake Patrol,WIPO Case No. D2001-0489. The domain name also omits the immaterial “de” present in the Complainant's mark while changing the initial letter from a “c” to a “k”. Such a change is immaterial and of no significance in avoiding confusion. See La Société Anonyme Des Bains De Mer Et Du Cercle Des Etrangers A Monaco v. Gest Trading S.R.L.,WIPO Case No. D2000-1320; A, Inc. v. Steven Newman a/k/a Jill Wasserstein a/k/a Pluto Newman,WIPO Case No. D2006-0517 (transferring domain names involving “typosquatting”). B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy sets out in particular, but without limitation, three circumstances which, if proved by the Respondent, shall be evidence of the Respondent's rights to or legitimate interests in the domain name for the purpose of paragraph 4(a)(ii), namely:
(i) before any notice of the dispute to the Respondent, the Respondent's use of, or demonstrable preparation to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods and services; or
(ii) the Respondent (as an individual, business, or other organization) has been commonly known by the domain name, even if the Respondent has acquired no trademark or service mark rights; or
(iii) the Respondent is making a 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.
The Respondent has not provided an explanation for its use of the Complainant's mark. The Respondent's use is not authorized and Respondent has never been a licensee of the Complainant. It is apparent that the Respondent intends to utilize the contested domains names for commercial gain. There is no evidence that the Respondent is making a legitimate noncommercial or fair use of the disputed domain names. Policy, paragraph 4(c)(iii).
Accordingly, the Complainant has established that the Respondent has no rights or interest in the disputed domain names. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out four circumstances which, without limitation, shall be evidence of the registration and use of the domain name in bad faith, namely:
(i) circumstances indicating that the Respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of the Complainant, for valuable consideration in excess of the Respondent's documented out-of-pocket costs directly related to the domain name; or
(ii) The Respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the Respondent has engaged in a pattern of such conduct; or
(iii) The Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent's website or other on-line location, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the Respondent's website or location or of a product.
The Panel has no difficulty in concluding that the Respondent registered and is using the disputed domain names to attract Internet users to the Respondent's websites by confusing Internet users in violation of Policy paragraph 4(b)(iv). It is beyond doubt that the Respondent was aware of Complainant's well-known mark and domain name. See Société des Bains de Mer et du Cercle des Etrangers à Monaco v. Corril Holding N.V.,WIPO Case No. D2005-1342. Moreover, Respondent's bad faith is illustrated by the change of a single, phonetically similar letter in the disputed domain names to differentiate in a confusing manner the disputed domain names from Complainant's mark and domain name. See Volvo Trademark Holding AB v. Unasi, Inc.,WIPO Case No. D2005-0556; CPP, Inc. v. Virtual Sky,WIPO Case No. D2006-0201. 7. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain names and be transferred to the Complainant.
William F. Hamilton
Sole Panelist
Dated: November 12, 2008
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