WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Delaware Racing Association v. The unidentified Registrant of disputed domain name, Case No. D2009-0951 1. The Parties
The Complainant is Delaware Racing Association of Wilmington, Delaware, United States of America, represented by Potter Anderson & Corroon, LLP, United States.
The Respondent is The unidentified Registrant of disputed domain name, of China. 2. The Domain Name and Registrar
The disputed domain name is registered with eNom. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 14, 2009. On July 15, 2009, the Center transmitted by email to eNom a request for registrar verification in connection with the disputed domain name. On July 15, 2009, eNom transmitted by email to the Center its verification response which disclosed only the Respondent's country of origin, telephone number and email address. In response to Center's email communication of July 16, 2009 for further verification with regard to Respondent's identity, the Registrar informed that the details disclosed in its email communication is all the information they had for the disputed domain name and that the contact email is invalid. The Registrar also advised that the domain name is currently on registrar hold due to ICANN WhoIs information violations. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on July 22, 2009. 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” 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on July 23, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was August 12, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on August 13, 2009.
The Center appointed Adam Samuel as the sole panelist in this matter on August 17, 2009. 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 has been running a horse racing track since 1937 using the tradename DELAWARE PARK. Using the same name, it also carries on the businesses of offering customers slot machine gambling and intends to offer them opportunities to bet on horse races following a recent change in Delaware law. The Complainant owns United States of America trademark registrations for DELAWARE PARK, Registration Numbers 2,334,386 and 2,334,387, both registered on March 28, 2000 and 2,337,277, registered on April 4, 2000.
The disputed domain name was first created on February 15, 2007. 5. Parties' Contentions A. Complainant
What follows is a summary of the Complainant's contentions. It does not follow that the Panel accepts any or all of them.
The disputed domain name is confusingly similar to the Complainant's service mark, DELAWARE PARK. The Complainant is also the registrant of a number of domain names including:
In or around May 2009, the Complainant learned that sports betting would soon become legal in the US State of Delaware, the Complainant's principal place of business. In anticipation of this change, the Complainant sought to register additional domain names relevant to the anticipated legalization of sports betting. To that end, the Complainant sought to register the domain name . The Complainant learned, however, that the disputed domain name had been previously registered by the Respondent.
The webpages to which the disputed domain name resolved contained an uncountable number of links to Internet webpages wholly unrelated to the Complainant and apparently unrelated to the unidentified Respondent. A small example of various links to other Internet searches available at the website included: “Sport Betting,” “Sportsbetting,” “Betting,” “Sport,” “Sport Bet,” “Sportsbet”, “Online Gambling,” “Gambling,” “Casino,” “Football Tickets,” “Sport Tickets,” “Nfl (sic) Jerseys,” “Delaware Incorporation,” “Grants,” “Football Equipment,” “poker Chip Clearance Sale (sic),” “Online Texas Hoidem (sic),” “Up to 85% Off poker Chips (sic),” “Treasure Island poker (sic),” “poker Chips (sic),” and “poker Chips Sets For Sale (sic).”
These webpages also included what were represented to be “Sponsored Listings” such as: “Play Slot Machines,” “Casino L'auberge, La,” “Betus Sports,” “Us Players Sites,” and “Crystal Palace Casino” and direct links to domain names unrelated to the Complainant.
None of the multitude of the webpages displayed or linked to the disputed domain name actually offered actual goods or services for sale.
The disputed domain name is identical to Complainant's registered service mark DELAWARE PARK. Domain names are not case sensitive and cannot include spaces, Appending the generic and descriptive element “sportsbetting” to the Complainant's registered mark “DelawarePark” does not mitigate the confusing nature of the disputed domain name. The Respondent's inclusion of “sportsbetting” in the disputed domain name is likely to increase rather than mitigate confusion because the Complainant has an established reputation with horse racing and slot machines and intends to expand its operations to include sports betting later in 2009.
While the identity of the Respondent is unknown, on information and belief, the Respondent possesses no rights or legitimate interests in respect of the domain name that is the subject of the Complaint because the Complainant has not authorized anyone to use the disputed domain name. Moreover, many of the plethora of disparate links available on the Respondent's website are unrelated to the disputed domain name. The resolved webpages include links and searches for such varied goods and services as legal services, real estate, sporting equipment, rental cars, health insurance, mortgages, credit reports, credit card applications, hotels, and airline tickets. Such a wide variety of unrelated links, and the absence of any direct sales of goods or services whatsoever, demonstrates that the Respondent has no intent to use the domain name for a bona fide offering of goods or services, but rather seeks to derive revenue by linking visitors to other websites.
The Respondent cannot reasonably claim the use of the disputed domain name with a bona fide offering of goods and services. Indeed, the disputed domain offers no goods or services whatsoever beyond a “click through” to other websites offering everything from sporting equipment, to online gambling, to real estate, to legal services. The Respondent also cannot reasonably claim legitimate noncommercial or fair use of the domain name without intent for commercial gain. The Respondent has also demonstrated its bad faith in registering and using the domain name by registering anonymously and failing to provide any information about its/his/her identity or contact information. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
Under the Policy, the Complainant must prove that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which it has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The disputed domain name consists of a trademark which the Complainant has owned since 2000 and which represents the name of its race course, the two generic words “sports” and “betting”, both of which involve activities in which the Complainant is commercially involved and the generic top level domain “.com”. The Complainant's trademark consists of the name of a US state and the generic word “park”. It only means anything as the name of a racetrack of the same name.
The same issue arose in National Football League v. Online Marketing International also known as International Marketing Group,WIPO Case No. D2008-2006. There, the word “gambling” was added to the Complainant's trademarks in a number of the disputed domain names. The Panel said:
“The Panel is satisfied that the Complainant has proved this part of its Complaint.
First, the Complainant has established that it is the registered proprietor in the United States of America of the word marks NFL and SUPER BOWL. Each of the 19 Domain Names includes one of those marks.
Panels deciding cases under the Policy have frequently held that it is sufficient to establish confusing similarity under paragraph 4(a)(i) of the Policy, if a disputed domain name includes in its entirety the complainant's mark. … For similar reasons, the Panel finds that the Domain Names , , and , are confusingly similar to the Complainant's NFL mark. In each case, the Complainant's NFL mark stands apart, separated by hyphens from other generic, non-distinctive words, and appearing as the second or third expression in the Domain Name.
Turning to the four Domain Names which include the expressions “superbowl” or “super-bowl”, the Panel finds that these four Domain Names are also confusingly similar to the Complainant's SUPER BOWL mark. Two of these Domain Names, , and , have the “super bowl” or “super-bowl” at the beginning, separated by hyphens from strings of non-distinctive, generic words. In the Panel's view, Internet users would immediately associate these two Domain Names with the Complainant's Super Bowl football game. Similarly, in the Domain Name , the expression “superbowl” appears as the second word in the Domain Name, separated from a number of non-distinctive words by a hyphen on either side. The Panel is satisfied that the expression ‘superbowl' is the dominant and distinctive part of that particular Domain Name.”
For these reasons, the Panel concludes that the disputed domain name is confusingly similar to the Complainant's trademark. B. Rights or Legitimate Interests
There is no evidence that the Respondent is called “Delaware Park” or anything similar and does not appear to trade under that or any related name. There is no evidence that the Complainant has authorized the Respondent to use its trademark. The Respondent has never asserted any rights or legitimate interests in that name. For these reasons, and on the basis of the available record, notably the absence of a Response, the Panel concludes that the Respondent has no rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith
The disputed domain name is essentially a combination of the Complainant's distinctive trademark and two aspects of its business: sport and betting. The trademark has no meaning except as a US State and the generic word “park” and is in practice meaningless except as the name of the racetrack from which the Complainant does business. One would only have registered the domain name knowing of the Complainant's business and its probable or actual trademark rights to the name DELAWARE PARK.
The only explanation of what has happened seems to be that the Respondent's motive in registering and using the site is to do at least one of three things: disrupt the Complainant's relationship with its customers or potential customers, attempt to attract Internet users for potential gain or persuade the Complainant to buy the domain name from him for an amount in excess of the Respondent's out-of-pocket expenses. These each constitute evidence of registration and use in bad faith: paragraph 4(b)(i), (ii) and (iii) of the Policy.
For these reasons, the Panel concludes that the Respondent has both registered and used the domain name in issue in bad faith. 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 name be transferred to the Complainant.
Adam Samuel
Sole Panelist
Dated: August 20, 2009
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