The Complainant is Groupe Partouche of Paris, France, represented by SafeNames Ltd., United Kingdom of Great Britain and Northern Ireland.
The Respondents are Madarin Data Ltd of Harworth, Yorkshire, United Kingdom of Great Britain and Northern Ireland (hereinafter referred to as the “First Respondent”), MDP of Le Mans, France (hereinafter referred to as the “Second Respondent”) and Raymond Pousaz of Lake Mary, United States of America (hereinafter referred to as “the Third Respondent”). 2. The Domain Names and Registrars
The disputed domain names , and are registered with R and GoD, Inc. (collectively the “disputed domain names” unless expressly stated otherwise). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 7, 2010 against the First Respondent. On October 7, 2010, the Center transmitted by email to R and GoD, Inc. a request for registrar verification in connection with the disputed domain names. On October 7, 2010, R transmitted by email to the Center its verification response for confirming that the First Respondent is listed as the registrant and providing the contact details. On October 8, 2010, GoD, Inc. transmitted by email to the Center its verification response for and confirming that the Second Respondent is listed as the registrant of , and that the Third Respondent is listed as the registrant of and provided the contact details. The Complainant filed an amended Complaint on October 22, 2010.
The Center verified that the Complaint together with the amended 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 paragraphs 2(a) and 4(a) of the Rules, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 28, 2010. In accordance with paragraph 5(a) of the Rules, the due date for Response was November 17, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 19, 2010.
The Center appointed Brigitte Joppich as the sole panelist in this matter on December 3, 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 paragraph 7 of the Rules. 4. Factual Background
The Complainant was founded in 1973 and is a leading international provider of online gaming and entertainment services. The Complainant operates a total of 55 casinos in France, Belgium, Spain, Switzerland and Turkey. The Complainant also manages 19 hotels and 130 restaurants, and runs the “Partouche Poker Tour”, which is one of the largest poker events in the world and was broadcast on the Eurosport network in 59 countries in 2008 and 2009.
The Complainant is the registered owner of numerous trademarks containing the word Partouche, including French Trademark Registration No. 03 3 263728 “GROUPE PARTOUCHE”, registered on December 18, 2003, International Trademark Registration No. 982668 “GROUPE PARTOUCHE”, registered on July 22, 2008, and French Trademark Registration No. 06/3439797 “PARTOUCHE”, registered on July 10, 2006 (hereinafter referred to as the “PARTOUCHE Marks”).
The disputed domain names have been registered on February 13, 2006 for ; on June 23, 2008; and on March 13, 2002
As of the date of this decision, the disputed domain name has been used in connection with a blank website containing only the ULR “www.”. The disputed domain name has been used in connection with a casino related web log which included advertising links to one of the Complainant’s direct competitors, Group 770. The disputed domain name has been used in connection with a blank website stating that the “server is down”. 5. Parties’ Contentions A. Complainant
The Complainant contends that each of the three elements specified in paragraph 4(a) of the Policy has been met in the present case:
(1) The disputed domain names are confusingly similar to the Complainant’s distinctive PARTOUCHE Marks as such marks have been incorporated in the disputed domain names in their entirety and as the additional words “casino”, “casinos” and “poker tour” are ordinary and descriptive words which, given that they are descriptive of the Complainant’s business, are increasing the risk of confusion by reinforcing the connection between the word PARTOUCHE and the Complainant’s trademark which covers gambling services.
(2) The Respondent has no rights or legitimate interests in the disputed domain names. The Complainant contends that the Respondent is in fact Madarin Data Ltd, an entity also known as Mandarin Data Processing. The Complainant contends that such companies are associated with its competitor, Casino 770. The Complaint states that the Respondent was previously involved in several domain name disputes involving the PARTOUCHE Marks where the respective panels found that the Respondent had no legitimate interests in domain names containing the term “Partouche”. The Complainant further contends that the Respondent has not registered any trademarks including the term “Partouche”, that the word “Partouche” is not a generic term or a common word but the surname of the founder of the Complainant. The Complainant states that two of the disputed domain names do not resolve to active websites, that the Respondent is not using those domain names in connection with a bona fide offering of goods or services and that there is no evidence that the Respondent plans to make use of a name corresponding to those domain names in connection with an offering of goods or services. The Complainant also contends that the third of the disputed domain names currently resolves to a site that acts as a direct portal to websites of the Complainant’s competitor, Casino 770, which does not constitute a bona fide offering of goods and services under the Policy. The Complainant further contends that the Respondent has not been licensed by the Complainant or authorized in any way to use the PARTOUCHE Marks in the registration of the domain names, that it is not affiliated with the Complainant in any way and could not make any legitimate use of the domain names given the fame, reputation and goodwill associated with the Complainant and its business.
(3) The disputed domain names have been registered and are being used in bad faith. The Complainant states that it is not possible to conceive a plausible scenario where the Respondent would have not been aware of the Complainant at the time of registration of the disputed domain names, given that the Complainant owns numerous trademark registrations in France and internationally and has a wide reputation associated with the name Partouche, in addition to the complainant’s notoriety in the poker industry. The Complainant further submits that the Respondent registered the disputed domain names in order to prevent the Complainant from registering domain names, naturally corresponding to its name, which is well known to be Partouche. The Complainant asserts that the inactivity of the domains and should be considered as passive holding by the Respondent. The Complainant asserts that the Respondent has previously engaged in a pattern of registering third parties’ trademarks as domain names as he has already been involved in proceedings under the UDRP. Finally, the Complainant contends that the Respondent purposefully registered the disputed domain names to disrupt the Complainant’s business. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
The first issue to be dealt with in this matter is the identity of the Respondent(s).
The Complainant claims that the Respondents shall be regarded as one Respondent for the purposes of this proceeding. The Complainant provided the following evidence in support of its contention that all of the named Respondents are somehow related to one of the Complainant’s direct competitors, Group 770:
- Group 770 provides online gaming and entertainment services and has several different companies within its corporate structure which are readily identifiable by the term “Mandarin” in their name:
- The natural person listed with the First Respondent in the WhoIs database for the domain name , Mr. Raymond Pousaz, is also registered as owner of the domain name .
- The domain name , which provides online services offered by Group 770, is registered at the address of the First Respondent, which is also the registered owner of .
- The Third Respondent, an acronym for “MANDARIN DATA PROCESSING” is named as operator of “Casino 770” at “”, a third party website providing information on casino games and online casinos.
- The General Terms and Conditions at “” state that the service is provided by MANDARIN GAMING NV, and the address of Mandarin Gaming NV is used as the administrative contact address in the WhoIs database for the domain name , registered by the First Respondent.
- The Second Respondent was listed in the WhoIs information in connection with domain registrations in the name of “mandarin data processing” and “Madarin Data Ltd”, which were transferred to the Complainant in previous UDRP actions, namely Groupe Partouche v. Domains Discreet / mandarin data processing, raymond pousaz,WIPO Case No. D2010-0618 and Group Partouche v. Madarin Data Ltd, Pousaz Raymond,WIPO Case No. D2010-1478.
The Respondent(s) did not deny the Complainant's contentions with regard to the identity of the Respondent(s).
Based on the evidence before the Panel, the Panel is satisfied that the disputed domain names are all controlled by the same person or entity and will proceed accordingly in treating the Respondents as a single entity and consider the disputed domain names in the same proceeding. In the following decision, the Panel will refer to the Respondents collectively as “the Respondent”.
Under paragraph 4(a) of the Policy, the Complainant must prove that each of the following three elements is present:
(i) the domain name is identical or confusingly similar to the Complainant’s trade mark; and
(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. A. Identical or Confusingly Similar
The disputed domain names fully incorporate the Complainant’s PARTOUCHE Marks in which the Complainant has exclusive rights.
The Panel finds that the additional words “casino”, “casinos” and “poker tour” following the term Partouche in the disputed domain names are merely generic and describe the Complainant’s services. It is well established that a domain name that wholly incorporates a trademark may be confusingly similar to such trademark for purposes of the Policy despite the addition of common or generic words, such as “casino”, “casinos” and “poker tour” (See i.e..Microgaming Software Systems Limited v. Navedyne Entertainment Inc.,WIPO Case No. D2010-1596; Raha-automaattiyhdistys v. Matti Metsala,WIPO Case No. D2010-1686; Groupe Partouche v. Domains Discreet / mandarin data processing, raymond pousaz,WIPO Case No. D2010-0618; Donald J. Trump and Trump Hotels & Casino Resorts Inc v. Lucky Penny Enterprises Inc., NAF Claim No. 102810; Groupe Partouche v. Mandarin Data Processing, Eric Richard,WIPO Case No. D2010-1618).
Furthermore, it is well established that the specific top level domain is generally not an element of distinctiveness that can be taken into consideration when evaluating the identity or confusing similarity between the complainant’s trademark and the disputed domain name (See i.e.. Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr.,WIPO Case No. D2000-1525; Rollerblade, Inc. v. Chris McCrady,WIPO Case No. D2000-0429; and Phenomedia AG v. Meta Verzeichnis Com,WIPO Case No. D2001-0374).
Therefore, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy sets out three illustrative circumstances as examples which, if established by a respondent, shall demonstrate its rights to or legitimate interests in the domain name for purposes of paragraph 4(a)(ii) of the Policy, i.e.
(i) before any notice to the respondent of the dispute, the use by the respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent (as an individual, business or other organization) has been commonly known by the domain name, even if the respondent has acquired no trademark or service mark rights; or
(iii) the respondent is making a legitimate non commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
Even though the Policy requires the complainant to prove that the respondent has no rights or legitimate interests in the disputed domain name, it is the consensus view among panelists that a complainant has to make only a prima facie case to fulfill the requirements of paragraph 4(a)(ii) of the Policy. As a result, the burden of proving that the respondent has rights or legitimate interests in the disputed domain name will then shift to the respondent.
The Complainant has substantiated that the Respondent has no rights or legitimate interests in the disputed domain name. The Panel finds that the Complainant has fulfilled its obligations under paragraph 4(a)(ii) of the Policy.
The Respondent did not deny these assertions in any way. Based on the evidence before the Panel, the Panel cannot find any rights or legitimate interests of the Respondent either. Accordingly, the Panel finds that the Complainant has proven that the Respondent has no rights or legitimate interests in respect of the disputed domain names under paragraphs 4(a)(ii) and 4(c) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which are evidence of the registration and use of the domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy, i.e.:
(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the complainant who is the owner of the trade mark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out of pocket costs directly related to the domain name; or
(ii) the respondent has registered the domain name in order to prevent the owner of the trade mark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on its website or location.
The Panel is satisfied that the Respondent registered the disputed domain names with full knowledge of the Complainant and its rights in the PARTOUCHE Marks, as the Respondent is a direct competitor of the Complainant. Furthermore, the Respondent has been involved in earlier proceedings under the UDRP regarding domain names including the Complainant’s PARTOUCHE Marks, namely:
- Groupe Partouche v. Mandarin Data Processing, Eric Richard,WIPO Case No. D2010-1618, involving the domain names: , and ;
- Group Partouche v. Madarin Data Ltd, Pousaz Raymond,WIPO Case No. D2010-1478, involving the domain name ;
- Groupe Partouche v. Domains Discreet / Madarin Data Ltd Pousaz Raymond,WIPO Case No. D2010-0589 involving the domain name ; and
- Groupe Partouche v. Domains Discreet / mandarin data processing, raymond pousaz,WIPO Case No. D2010-0618 involving the domain name .
It is clear to the Panel that the Respondent would not have registered the disputed domain names without knowledge of the Complainant and its business.
With regard to bad faith use, the Panel is satisfied that the Respondent registered the disputed domain names primarily for the purpose of disrupting the Complainant’s business and therefore in bad faith under paragraph 4(b)(iii) of the Policy.
Furthermore, the finding of bad faith is supported by the fact that the Respondent was ordered to transfer domain names to the Complainant in at least four earlier proceedings where registration and use in bad faith were established. Therefore the Panel finds that the Respondent has engaged in a pattern of conduct aimed at preventing owners of a trademark or service mark from reflecting their marks in a corresponding domain name as required under paragraph 4(b)(ii) of the Policy.
Consequently, the Panel finds that the Respondent registered and used the disputed domain names in bad faith and that the Complainant satisfied the requirements of paragraph 4(a)(iii) 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 names , and be transferred to the Complainant.
Brigitte Joppich
Sole Panelist
Date: December 14, 2010
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