WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Microgaming Software Systems Limited v. Dopici Nasrat/PrivacyP Case No. D2010-0266 1. The Parties
The Complainant is Microgaming Software Systems Limited of Douglas, Isle of Man, the United Kingdom of Great Britain and Northern Ireland, represented by Bowman Gilfillan Inc., South Africa.
The Respondent is Dopici Nasrat/PrivacyP of Vavau, Tonga. 2. The Domain Name and Registrar
The disputed domain name is registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainR. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 19, 2010. On February 22, 2010, the Center transmitted by email to Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainR a request for registrar verification in connection with the disputed domain name. On February 25, 2010, Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainR. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on March 2, 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 proceedings commenced on March 4, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was March 24, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on March 25, 2010.
The Center appointed Richard Hill as the sole panelist in this matter on April 30, 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 has been using its mark since 1994, to provide software for games of chance and online casinos.
The Complainant's mark and website are well-known in the online gambling business.
The Respondent registered the disputed domain name in 2009 and is using it to point to a website offering referral links to various gambling-related services.
The Respondent appears to obtain revenue from the referral links.
The Complainant did not authorize or license the Respondent to use the Complainant's mark. 5. Parties' Contentions A. Complainant
The Complainant alleges that it is the exclusive licensee of a number of registered trade marks consisting of or incorporating the term MICROGAMING in various jurisdictions around the world. The mark covers computer software for games of chance and casino style gambling.
The Complainant states that it was founded in 1994 and provides online casino software. The software is widely used and the Complainant's mark is well-known in relation to online casinos and gaming-related software.
According to the Complainant, the disputed domain name is confusingly similar to the Complainant's mark because it consists of the mark plus the two generic descriptive terms “free” and “slots”.
The Complainant alleges that the Respondent has no rights or legitimate interests in the disputed domain name. The disputed domain name points to a page that provides links to a number of gambling-related sites, some of which compete with the Complainant. The Respondent was not authorized or licensed to use the Complainant's mark.
According to the Complainant, the Respondent cannot have any rights or legitimate interests in the disputed domain name, because the Complainant's mark is well-known in relation to casino and gaming services, and the Respondent is using the disputed domain name to promote such services, thus creating consumer confusion.
Further, says the Complainant, this behavior is indicative of bad faith registration and use of the disputed domain name, in particular because the disputed domain name was registered some 15 years after the Complainant began to use its mark.
Indeed, continues the Complainant, the presence of the terms “free” and “slots” in the disputed domain name is further evidence of the fact that the Respondent deliberately registered the disputed domain name in order to take advantage of the Complainant's reputation in the gambling business. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The disputed domain name consists of the Complainant's mark, plus the descriptive term “free” and the word “slots”. In the context of gambling, “slots” clearly refers to slot machines, a device used for gambling. Thus, in the context of gambling, “slots” is a generic term. In the context of gambling, the disputed domain name can be understood to refer to free slot machines offered by the Complainant, who is well-known under the mark MICROGAMING.
Thus the Panel finds that the disputed domain name is confusingly similar, in the sense of the Policy, to the Complainant's mark. See MasterCard International Incorporated v. Juan Curtis,WIPO Case No. D2008-1295 (finding that the word “free” was descriptive and did not eliminate the similarity to the Complainant's mark) and Microgaming Software Systems Limited v. DomainsByP and BB1Webs,WIPO Case No. D2008-0870 (finding that the inclusion of the generic word “slots” did not add distinctive matter so as to distinguish the disputed domain name from the Complainant's mark). B. Rights or Legitimate Interests
The Respondent does not have any license or other authorization to use the Complainant's mark. It is using the disputed domain name to operate a website that contains referrals to merchants offering the sale of various products and services, some of whom appear to compete with the Complainant. The Respondent appears to obtain revenue from the referrals.
The Panel finds that the Respondent is redirecting Internet users interested in the Complainant's products and services to its own website for commercial gain and that such use does not fall within the parameters of a bona fide offering of goods or services pursuant to paragraph 4(c)(i) of the Policy or a legitimate noncommercial or fair use pursuant to paragraph 4(c)(iii) of the Policy. See The Royal Bank of Scotland Group PLC, Direct Line Insurance PLC, and Privilege Insurance Company Limited v. Demand Domains, c/o C.S.C., NAF Case No. FA 714952 (finding that the operation of a commercial web directory displaying various links to third-party websites was not a use in connection with a bona fide offering of goods or services pursuant to Policy paragraph 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy paragraph 4(c)(iii), as the respondent presumably earned “click-through” fees for each consumer it redirected to other websites); see also Damien Persohn c/o CPPD SAS / Têtu v. Joshua Lim c/o Webxel Consulting Pte Ltd, NAF Case No. FA 874447 (finding that the respondent was not using a disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use by redirecting Internet users to a commercial search engine website with links to multiple websites that may be of interest to the complainant's customers and presumably earning “click-through fees” in the process).
And see the very similar case Microgaming Software Systems Limited v. DomainsByP and BB1Webs, supra.
The Panel finds that the Complainant has satisfied its burden of proof for this element of the Policy. C. Registered and Used in Bad Faith
It seems highly unlikely that the Respondent was not aware of the Complainant's marks when it registered and started using the disputed domain name.
The Respondent (who did not reply) has not presented any plausible explanation for its use of the Complainant's mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from the Respondent's failure to reply as it considers appropriate. Accordingly, the Panel finds that the Respondent did not have a legitimate use in mind when it registered the disputed domain name.
Indeed the Respondent's actual use of the disputed domain name (as noted above) is clearly not bona fide, because the Respondent operates a website that contains referrals to products and services that compete with the Complainant. This indicates that the Respondent has registered and is using the disputed domain name to take advantage of the confusing similarity between the disputed domain name and the Complainant's mark in order to profit from the goodwill associated with the mark in bad faith under paragraph 4(b)(iv) of the Policy. See Zee TV USA, Inc. v. Aamir Siddiqi c/o DotC, NAF Case No. FA 721969 (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant's mark to offer links to third-party websites that offered services similar to those offered by the complainant); see also The Association of Junior Leagues International Inc. v. This Domain Name My Be For Sale c/o Legend .name, NAF Case No. FA 857581 (holding that the respondent's use of the disputed domain names to maintain pay-per-click sites displaying links unrelated to the complainant and to generate click-through revenue suggested bad faith registration and use under Policy paragraph 4(b)(iv)).
And see the very similar case Microgaming Software Systems Limited v. DomainsByP and BB1Webs, supra.
The Panel finds that the Complainant has satisfied its burden of proof for this element of the Policy. 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.
Richard Hill
Sole Panelist
Dated: May 2, 2010
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