WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Microgaming Software Systems Limited v. Ekremyikilmaz Case No. D2009-1299 1. The Parties
The Complainant is Microgaming Software Systems Limited of Isle of Man, United Kingdom of Great Britain and Northern Ireland, represented by Bowman Gilfillan Inc., South Africa.
The Respondent is Ekremyikilmaz of Ankara, Turkey. 2. The Domain Name and Registrar
The disputed domain name is registered with DSTR Acquisition VII, LLC d/b/a D. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 30, 2009. On October 2, 2009, the Center transmitted by email to DSTR Acquisition VII, LLC d/b/a D a request for registrar verification in connection with the disputed domain name. On October 2, 2009, DSTR Acquisition VII, LLC d/b/a D 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 October 12, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was November 1, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on November 2, 2009.
The Center appointed Nicoletta Colombo as the sole panelist in this matter on November 3, 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 following uncontested facts are found by the Panel and established as true.
The Complainant is the exclusive licensee of a number of pending and registered trademarks consisting of or incorporating the word MICROGAMING in various jurisdictions including the United States of America, United Kingdom of Great Britain and Northern Ireland, the European Union, Canada and Australia. The trademarks cover in general computer software for games of chance, gaming or casino style gaming, entertainment, gaming and online casino management services.
The Complainant is the owner of the domain name .
The Complainant was founded in 1994 and developed and released the world's first true online casino software. The Complainant has advertised and promoted every year its online casino and gaming software by means of brochures, search engines, online casino and gaming sites, print ads, trade magazines, and industry expos.
The disputed domain name was registered on May 12, 2006. 5. Parties' Contentions A. Complainant
The Complainant contends that each of the three elements specified in paragraph 4(a) of the Policy are applicable to the domain name subject of this dispute.
The Complainant contends the following:
- the disputed domain name (composed of the words “highroller” and “microgaming”) is confusingly similar to the Complainant's trademarks. The combination of the word “microgaming” with the words “high” and “roller” creates a domain name that cannot be anything but confusingly similar to the Complainat's well-known trademarks;
- the addition of a generic word is insufficient to give any distinctiveness to the domain name, with the conclusion that the disputed domain name is confusingly similar to the trademarks of the Complainant.
- the Respondent has no rights or legitimate interests in the domain name and it is neither an agent nor a licensee of the Complainant and has no connection or affiliation with the Complainant;
- the Respondent has not been commonly known by the disputed domain name and the Respondent has not acquired any trade mark or service mark rights in and to the disputed domain name; The Respondent, at the time of the registration of the disputed domain name, was surely aware of the trademarks of the Complainant taking into consideration that the disputed domain name has been registered:
- 11 years after the Complainant's domain name registration on 18 August 1996,
- 12 years after the Complainant first used the MICROGAMING trade mark in commerce in 1994, and
- 7 years after the Complainant's licensor had registered the trade mark in several countries;
- at the date of the submission of the Complaint, the disputed domain name pointed to a generic search engine website providing information about casino and gaming services and through which websites competing and/or related goods and services to those of the Complainant can be accessed. Therefore, the Respondent does not use the disputed domain name in connection with a bona fide offering of goods and services.
The Complainant requests the Panel to transfer the disputed domain name to it. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The Complainant has several trademarks registrations for MICROGAMING in several countries and in Europe. Therefore, it has been proved that the Complainant has rights in the MICROGAMING trademark.
The only difference between the disputed domain name and the Complainant's trademark is the addition of the words “high” and “roller”. The addition of the words “high” and “roller” (which are generic terms) does not add a distinctive element to the disputed domain name.
Several WIPO UDRP decisions state that confusing similarity, for the purposes of the Policy, is established when a domain name wholly incorporates a complainant's mark and only adds a generic word (see i.e., Deutsche Telekom AG v. Maggie Eliger,WIPO Case No. D2008-0173; F. Hoffmann-La Roche AG v. Bobik Marley,WIPO Case No. D2007-0694; Dr. Ing. h.c. F. Porsche v. Lyn Davis, WIPO Case No. D2006-1098; Société del Hotels Méridien v. Mr. Cuneyt Ozarici, WIPO Case No. D2005-0201; ACOR, Society Anonyme a Directoire et Conseil de Surveillance v. SEOCHO, WIPO Case No. D2002-0517; Telstra Corporation Limited v. Ozurls, WIPO Case No. D2001-0046).
The addition of the generic top level domain extension “.com” does not eliminate the similarity (see Deutsche Telekom AG v. Maggie Eliger,WIPO Case No. D2008-0173; Société des Bains de Mer et du Cercle des Etrangers à Monaco v. Grande Media,WIPO Case No. D2007-0840; Crédit Industriel et Commercial S.A v. Name Privacy,WIPO Case No. D2005-0457).
There is no doubt that the domain name is confusingly similar to the trademarks of the Complainant. Therefore, the Panel finds that the Complainant has satisfied the first element of the Policy. B. Rights or Legitimate Interests
The Panel finds that as a result of the default, the Respondent has failed to rebut any of the factual assertions that are made and supported by the evidence submitted by the Complainant.
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 conclude that the Respondent has any 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 record that the Respondent has any rights or legitimate interests in the domain name.
The Complainant has not licensed or otherwise permitted or authorized the Respondent to use its trademark, or to apply for or to use the domain name incorporating said mark.
The Respondent has not submitted any evidence to demonstrate any rights or legitimate interests in the disputed domain name, and there is prima facie indication in the case file that there are no rights or legitimate interests on the part of the Respondent in the domain name, see paragraph 4(c) of the Policy (see Société des Bains de Mer et du Cercle des Etrangers à Monaco v. Grande Media,WIPO Case No. D2007-0840; UPIB, Inc. v. Texas Internet,WIPO Case No. D2004-0073).
On the contrary, the Complainant has several trademarks registrations for MICROGAMING. Therefore it has been proved that the Complainant has right in this trademark.
Accordingly, the Panel holds that the Respondent has no rights or legitimate interests in the disputed domain name and under these circumstances, finds that the Complainant has satisfied the second element of the Policy. C. Registered and Used in Bad Faith
Based on the evidence presented by the Complainant, the Panel considers that the Respondent registered and used the disputed domain name in bad faith.
As sufficient evidence of registration in bad faith, the Panel finds that the Respondent registered the disputed domain name (which corresponds to a widely known trademark with the addition of the words “high” and “roller”) most probably with knowledge of the Complainant's rights. Only someone who was familiar with the Complainant's marks would have registered the confusingly similar domain name (see Aventis, Aventis Pharma SA. v. John Smith, WIPO Case No. D2004-0850; AT&T Corp. v. Xinzhiyuan Management Consulting Co., Ltd.,WIPO Case No. DCC2004-0001; British Sky Broadcasting Group plc, v. Mr. Pablo Merino and Sky Services S.A,WIPO Case No. D2004-0131; Deutsche Telekom AG v. Britt Cordon,WIPO Case No. D2004-0487).
There is no information as to the business activity of the Respondent that would justify the registration and the use of the disputed domain name; nor is there evidence of any rights or legitimate interest in said domain name by the Respondent. The Panel believes that, in the absence of any rights or legitimate interests and in the absence of any contrary evidence from the Respondent, the Respondent's registration of domain name confusingly similar to the Complainant's trademark was done in bad faith (see Accor v. Howell Edwin,WIPO Case No. D2005-0980; Ferrero S.p.A. v. Publinord S.r.l.,WIPO Case No. D2002-0395; Banca Sella S.p.A. v. Mr. Paolo Parente,WIPO Case No. D2000-1157; Parfums Christian Dior v. Javier Garcia Quintas and C,WIPO Case No. D2000-0226).
Even if the Complainant has not submitted any evidence in order to prove that the disputed domain name pointed to a generic search engine website providing information about casino and gaming services, the Panel accepts the Complainant's statement.
The Panel is of the opinion that the Respondent has registered the disputed domain name with the intent to profit from the reputation of the famous trademark of the Complainant by using a domain name that is confusingly similar to the Complainant's mark. Taken together with the fact that the Respondent has not filed any Response in this proceeding in support of any good faith registration or use, the Panel believes that the Complainant has demonstrated that the disputed domain name has been registered and used 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.
Nicoletta Colombo
Sole Panelist
Dated: November 16, 2009
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