WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION bwin Interactive Entertainment AG v. Medios International S.A. Case No. D2009-1112 1. The Parties
Complainant is bwin Interactive Entertainment AG of Vienna, Austria, represented by Brandl & Talos Rechtsanwaelte GmbH, Austria.
Respondent is Medios International S.A. of Panama City, Panama. 2. The Domain Name and Registrar
The disputed domain name is registered with Epag Domainservices GmbH. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 18, 2009. On August 19, 2009, the Center transmitted by email to EPAG Domainservices GmbH a request for registrar verification in connection with the disputed domain name. On August 25, 2009, Epag Domainservices GmbH transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
On September 25, 2009, the Center informed the parties that the language of the administrative proceedings should be the language of the registration agreement and that the language of the relevant registration agreement was German. On September 28, 2009, Complainant requested that English shall be the language of the administrative proceedings. Respondent did not reply.
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 in both English and German the Respondent of the Complaint, and the proceedings commenced on September 1, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was September 21, 2009. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on September 23, 2009.
The Center appointed William F. Hamilton as the sole panelist in this matter on October 2, 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 is satisfied that, in the circumstances of the present case, the appropriate language of proceedings is English. Among other things, the Panel notes that Respondent was given a fair opportunity (in both English and German) to comment or object on language, and did not do so, nor indeed submit any response in these proceedings. 4. Factual Background
Complainant is the parent company of the bwin-Group, one of the world's leading providers of online gaming entertainment. Complainant has been listed on the Vienna Stock Exchange since March 2000. The mark BETANDWIN.COM was registered as an international trademark (IR No. 741099) on July 28, 2000 (the BETANDWIN.COM Mark). It is registered for various services, including the creation of software, advertising, entertainment (in particular performance of sports bets) and Internet services. Complainant and related companies also own many domain names containing the term “betandwin”, including , , , , , , , and . See bwin Interactive Entertainment AG v. Interagentur AG, WIPO Case No. D2008-1454.
The disputed domain name was first registered on June 10, 2004. 5. Parties' Contentions A. Complainant
Complainant contends that the disputed domain name is confusingly similar to Complainant's registered marks and domain names. Complainant asserts that the disputed domain name is a classic example of “typo-squatting.” Complainant contends Respondent has no rights or legitimate interests in the disputed domain name as Complainant has never licensed the use of its marks to Respondent and that the disputed domain does not appear to support any commercial or business activity. Complainant contends the disputed domain name was initially registered in bad faith by a previous registrant who had also registered , and that the disputed domain name was transferred to the current Respondent before the disputed domain name could be included in the prior proceeding. Complainant further notes that Respondent has not answered Complainant's cease and desist letter and demand for transfer of the disputed domain name. B. Respondent
Respondent did not reply to Complainant's contentions. 6. Discussion and Findings
Under paragraph 4(a) of the Policy, Complainant must prove each of the following:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) 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.
Complainant carries the 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 Panel finds the disputed domain name is confusingly similar to Complainant's registered marks. The disputed domain name merely transposes two letters in the Complainant's marks and is confusingly similar. A Inc. v. Steven Newman a/k/a Jill Wasserstien Pluto Newman, WIPO Case No. D2006-0517; Pfizer v. ZJ, WIPO Case No. D2007-0050). Complainant has carried its burden under Paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
The Panel finds that Respondent lacks any rights or legitimate interests in the disputed domain name. The disputed domain name is being passively held for no apparent purpose. While a domain name may legitimately be passively held during a period good faith planning and development, this case presents no such circumstances. The apparent transfer of the disputed domain name immediately prior to a previous domain name proceeding coupled with the failure to respond to either the Complaint or Complainant's cease and desist letters are circumstances with support a finding that Respondent lacks any rights or legitimate interests in the disputed domain name. Ebay Inc. v. E and Tony Caranci, WIPO Case No. D2000-1632. Complainant has made out a prime facie case which Respondent has not rebutted. Société AIR FRANCE v. yichengo yao,WIPO Case No. D2008-0007. Complainant has thus satisfied the requirements of Paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
The Panel finds Complainant has demonstrated that the disputed domain name was registered and is being used in bad faith as required under Paragraph 4(a)(iii) of the Policy. Respondent became the registrant upon transfer of the disputed name for the purpose of applying the Policy. MC Enterprises v. Mark Segal (N), WIPO Case No. D2005-1270. Based upon the totality of circumstances discussed in the above paragraph, the Panel finds that the registration of the disputed domain name was in bad faith. Respondent's passive holding of the disputed domain name supports the finding that the disputed domain name is being used in bad faith to block the disputed domain name from legitimate use by Complainant, to block a defensive registration of the disputed domain name by Complainant, or to improperly exploit the disputed domain name. Deutsche Telekom AG v. Kaththea Sias, WIPO Case No. D2008-1665. 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 Complainant.
William F. Hamilton
Sole Panelist
Dated: October 16, 2009
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