WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION bwin Interactive Entertainment AG v. Obaman Rute Case No. D2009-0956 1. The Parties
The Complainant is bwin Interactive Entertainment AG of Vienna, Austria, represented by Brandl & Talos Rechtsanwälte GmbH, Austria.
The Respondent is Obaman Rute of Kenya. 2. The Domain Name and Registrar
The disputed domain name is registered with Korea Information Certificate Authority Inc. d/b/a DomainCa.com. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 15, 2009. On July 16, 2009, the Center transmitted by email to Korea Information Certificate Authority Inc. d/b/a DomainCa.com a request for registrar verification in connection with the disputed domain name. On July 17, 2009, Korea Information Certificate Authority Inc. d/b/a DomainCa.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 4, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was August 24, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on August 25, 2009.
The Center appointed Professor Ilhyung Lee as the sole panelist in this matter on August 28, 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.
The Panel determines that English will be the language of the proceeding, as discussed herein. 4. Factual Background
The Complainant is an Austrian-based parent company of a group of entities that provide “online gaming entertainment,” which includes sports betting, poker, and casino games. The Complainant has used the mark BWIN (originating from “betandwin,” as the Complainant was previously known) for its business operations. In the U.S. jurisdiction, the Complainant obtained from the Patent and Trademark Office, multiple registrations of the BWIN mark, including those on March 6, 2007, and May 8, 2007.
The Complainant has also registered various domain names that incorporate its mark, including: , on June 14, 2005; , on August 22, 2005; and (the “de” designation indicating the country code top level domain for Germany, or Deutschland), apparently last updated on March 2, 2007.
The Respondent registered the disputed domain name on August 15, 2008. 5. Parties' Contentions A. Complainant
The Complainant contends that: (i) the disputed domain name is identical or confusingly similar to the mark in which the Complainant has rights; (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. B. Respondent
The Respondent did not reply to the Complainant's contentions.
Paragraphs 5(e) and 14(a) of the Rules permit the Panel to decide the dispute based on the Complaint. The Panel may also draw appropriate inferences from the Respondent's default, under paragraph 14(b). 6. Discussion and Findings
Initially, the Panel must address the language of the proceeding. Paragraph 11(a) of the Rules provides that the language of the administrative proceeding shall be the language of the Registration Agreement, unless otherwise agreed by the parties. Importantly, paragraph 11(a) also states that the determination of the language of the proceeding is “subject to the authority of the Panel . . ., having regard to the circumstances of the administrative proceeding.”
The registrar's verification response to the Center indicates that the language of the registration agreement is Korean. The same verification also reports that the Respondent's address of record is in Kenya. With the language of the registration agreement in mind, the Center's correspondence to the parties (regarding the language of the proceeding, the commencement of the action, and the Respondent's default) was transmitted in both Korean and English. The Respondent did not submit any response, and has defaulted. The Complainant, now the only active party remaining in the proceeding, has requested that English be the language of the proceeding. Considering all circumstances, the Panel agrees. A. Identical or Confusingly Similar
The Panel determines that the Complainant has demonstrated that the disputed domain name is identical or confusingly similar to the mark in which the Complainant has rights – BWIN. The first four letters of the domain name merely repeat the Complainant's mark in full. In the Panel's view, the addition of the letter “de” is not sufficient to defeat the confusing similarity. In this regard, the Panel is mindful of the fact that the Complainant had previously registered the domain name , and that Internet users who refer to this domain name are automatically transferred to the website for the Complainant's domain name .
The first element is established. B. Rights or Legitimate Interests
The Complainant urges that the Respondent has no rights or legitimate interests in respect of the disputed domain name, and has met its initial burden of making a prima facie showing. The burden shifts to the Respondent to demonstrate any such rights or legitimate interests. The Respondent has defaulted. The Panel is unable to ascertain any evidence that would demonstrate the Respondent's rights or legitimate interests in the disputed domain name, as described in paragraph 4(c) of the Policy, or otherwise.
The second element is satisfied. C. Registered and Used in Bad Faith
In order to prevail, the Complainant must also show that the disputed domain name “has been registered and is being used in bad faith,” as set forth in paragraph 4(a)(iii) of the Policy. Paragraph 4(b) provides a non-exhaustive list of circumstances that are evidence of bad faith in the registration and use of a domain name. The Panel determines that paragraph 4(b)(iv) is most applicable here.
Internet users who refer to the disputed domain name are taken to a website whose content includes various links related to air travel – with specific references to “BWI” (Baltimore Washington International) Airport – and bicycling. Although there is no specific mention of the Complainant or its gaming entertainment business, this does not avoid the Panel's conclusion that the Respondent, by using the domain name, 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, under paragraph 4(b)(iv).
The third element is present. 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.
Ilhyung Lee
Sole Panelist
Dated: September 8, 2009
Full & Egal Universal Law Academy