WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Danske Spil A/S v. Zhenxing Group, Cao Yinghai Case No. D2010-0087 1. The Parties
The Complainant is Danske Spil A/S of Denmark, represented by Zacco Denmark A/S, Denmark.
The Respondent is Zhenxing Group, Cao Yinghai of People's Republic 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 January 19, 2010. On January 19, 2010, the Center transmitted by email to eNom a request for registrar verification in connection with the disputed domain name. On January 19, 2010, eNom transmitted by email to the Center its verification response, providing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on January 21, 2010.
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 proceeding commenced on January 25, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was February 14, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on February 15, 2010.
The Center appointed Ross Wilson as the sole panelist in this matter on March 1, 2010. 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 is a gaming company created by the Danish Parliament in July 1948 following the passing of the Danish Pools Act. The Danish State holds 80% of the shareholdings. Danske Spil Group is among the largest 50 companies in Denmark with an annual turnover of DKK 10.9 billion. The gaming business includes all types of betting and lottery games distributed through authorized agents and businesses. The Complainant owns numerous betting shops and uses electronic communication between players and the company.
The Complainant owns the registered trademark DANSKE SPIL. The earliest registration was January 5, 2001.
On November 17, 2009 the Complainant sent a letter to the Respondent, requesting among other things that the Respondent cancelled the disputed domain name. The Respondent did not reply, but changed the use of the domain name from the website providing information about the Complainant to a portal website.
The disputed domain name was registered on August 8, 2008. 5. Parties' Contentions A. Complainant
The Complainant contends that the disputed domain name is confusingly similar to the trademark DANSKE SPIL, in which the Complainant has trademark rights under the Policy paragraph 4(a)(i).
The Complainant argues that the Respondent has not made and does not make use of the disputed domain name in connection with a bona fide offering of goods or services. Instead, the domain name was initially used for a website with information about the Complainant and it is now used to link to a commercial website with sponsored links constituting a “commercial” use of the disputed domain name. The website contains links to “different gaming sites” which are not connected with the Complainant.
The Complainant asserts that the Respondent is in no way connected with the Complainant and has not been given authorisation to use any of the Complainant's DANSKE SPIL trademarks. Such use is unfair to the Complainant and is damaging to the Complainant's name, trademark and business.
The Complainant also contends that there is no indication on the website that the Respondent had made a bona fide use of the disputed domain name. The Complainant considers the sole use of the disputed domain name by the Respondent was to bother the Complainant and later on to divert Internet traffic to gain revenues for the diverted traffic.
The Complainant maintains that the registration of the disputed domain name was made in bad faith because the trademark DANSKE SPIL is well-known and is clearly known by the Respondent, proven by the fact that the website of the Respondent previously contained information about the Complainant. Again, the purpose of registering the disputed domain name by the Respondent was either to bother the Complainant or to divert Internet users seeking information about the Complainant.
The Complainant asserts that the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent's on-line location, by creating a likelihood of confusion with the Complainant's mark and company name as to the source, sponsorship, affiliation, or endorsement of the Respondent's website. The Complainant contends that such action is evidence of bad faith. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
The onus is on the Complainant to prove each of the three elements set out in paragraph 4(a) of the Policy, as follows:
(i) the disputed 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 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 Complainant provided evidence that it has registered rights in the trademark DANSKE SPIL.
The disputed domain name consists of the Complainant's trademark in full together with the suffix gTLD “.org”. As previously held by numerous UDRP panels the suffix only indicates that the domain name is registered under that gTLD and is not distinctive.
Also, it has been held in many previous cases that incorporating a trademark in its entirety is typically sufficient to establish that a domain name is identical or confusingly similar to a registered trademark (see The Stanley Works and Stanley Logistics, Inc. v. Camp Creek Co. Inc.,WIPO Case No. D2000-0113 and World Wrestling Federation Entertainment, Inc. v. Ringside Collectibles,WIPO Case No. D2000-1306).
In view of the above, the Panel finds that the Complainant has proven that the disputed domain name is confusingly similar to the trademark in which it has demonstrable rights. The Complainant therefore has satisfied the first element of the Policy. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy sets out how a respondent can demonstrate rights to or legitimate interests in a disputed domain name. In this case, the Respondent has chosen not to file any submission or evidence to demonstrate its rights or legitimate interests in the disputed domain name. In this situation, paragraph 14(b) of the Rules allows the Panel, in the absence of exceptional circumstances, to draw such inferences from the absence of a Response from the Respondent as it considers appropriate.
The Respondent has chosen to use a domain name that contains the Complainant's trademark in its entirety without authorisation by the Complainant. As a consequence, the disputed domain name suggests a website related to the services of the Complainant. Instead, the website was initially used by the Respondent to provide several pages of factual information about the Complainant and was subsequently linked to a commercial website with numerous sponsored links, including links to gaming sites not connected with the Complainant.
The evidence provided by the Complainant indicates that the Respondent has used the Complainant's trademark in the disputed domain name initially to divert Internet users seeking information about the Complainant and later to attract Internet users to an active website to generate revenue. Clearly, no rights or legitimate interests derive from this type of use of another's trademark. The act of redirecting Internet users to other websites by using the reputation and goodwill of the Complainant's trademark does not constitute bona fide offering of goods and services (see Fox News Network, LLC v. Warren Reid,WIPO Case No. D2002-1085; Madison Square Garden L.P., Radio City Trademarks, LLC v. Great Camanoe Investments Ltd / Belize Domain Names Whois Service Lt,WIPO Case No. D2007-0819; Lance Armstrong Foundation v. Chris Angeles,WIPO Case No. D2005-0888, Baudville, Inc. v. Henry Chan,WIPO Case No. D2004-0059 and Sanofi-aventis v. Milton R. Benjamin,WIPO Case No. D2005-0544).
There is no evidence before the Panel to show that the Respondent was acting in pursuance of any rights or legitimate interests when registering the disputed domain name. Moreover, the Complainant has denied having any connection with the Respondent or providing any authorisation at all.
Despite the opportunity through this dispute process, the Respondent has chosen not to rebut the Complainant's case or assert any rights in the disputed domain name.
Based on the above, the Panel considers the Complainant has made out a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, which the Respondent not rebutted. The Panel is satisfied that the Complainant has proven the second element of the Policy. C. Registered and Used in Bad Faith
For the purposes of determining if there was bad faith registration and use, the Panel considered the circumstances of the registration and use of the disputed domain name in light of paragraph 4(b) of the Policy, noting that it does not impose any limitation on how the registration and use of a domain name in bad faith is evidenced.
The Panel considers that the Complainant has made a case that the Respondent is attempting to confuse Internet users seeking information about the Complainant and attract them to its website for commercial gain. The evidence provided indicates that after receiving a cease and desist letter from the Complainant the disputed domain name resolved to a website containing sponsored links, including competitive gaming sites. Such activity represents bad faith as envisaged by paragraph 4(b)(iv) both in respect to registration and use of the disputed domain name.
Noting that the Respondent has not rebutted any of the Complainant's claims, the Panel considers that there has to be a strong probability that the Respondent's awareness of the Danske Spil business was the motivation for registering and using the disputed domain name. Also, the Panel considers the Respondent's choice of the words Danske Spil was not merely coincidental but was a deliberate action to gain some sort of commercial advantage.
On the basis of the above and the evidence provided by the Complainant, the Panel is satisfied that the Respondent's conduct falls within paragraph 4(b)(iv) of the Policy. Therefore, the Panel finds that the Complainant has demonstrated that the disputed domain name was 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 disputed domain name be transferred to the Complainant.
Ross Wilson
Sole Panelist
Dated: March 15, 2010
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