The Complainant is bwin Interactive Entertainment AG of Vienna, Austria, represented by Brandl & Talos Rechtsanwaelte GmbH, Austria.
The Respondent is qushaobing of Luoyang, Henan, the People’s Republic of China. 2. The Domain Name and Registrar
The disputed domain name is registered with Xin Net Technology Corp. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 17, 2011. On January 17, 2011, the Center transmitted by email to Xin Net Technology Corp. a request for registrar verification in connection with the disputed domain name. On January 18, 2011, Xin Net Technology Corp. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. On January 19, 2011, the Center transmitted an email to the parties in both Chinese and English language regarding the language of proceedings. On January 20, 2011, the Complainant confirmed its request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding by the specified due date.
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 February 1, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was February 21, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 22, 2011.
The Center appointed Kimberley Chen Nobles as the sole panelist in this matter on February 28, 2011. 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 Complaint was submitted in the English language. The Center transmitted an email to the parties in both Chinese and English regarding the language of the proceedings. While the Complainant confirmed its request that English be the language of the proceeding, the Respondent did not comment on the language of the proceeding by the specified due date. In addition, the website operated under the disputed domain name was available in English. These proceedings are thus being conducted in the English language. 4. Factual Background
The Complainant is bwin Interactive Entertainment AG registered in the companies register of the commercial court Vienna under number FN 166449d. Complainant, the bwin-group, is a provider of online gambling and gaming entertainment. The Complainant is the parent company of the bwin-group and has been listed on the Vienna Stock Exchange as of March 2000. The Complainant performs functions such as finance, marketing, IT, project management, international business development, brand management, human resources and corporate communications for its affiliates.
The Complainant’s affiliates offer sports betting, poker, casino games, soft games and skill games, and audio and video streaming on sports events. The Complainant also runs an online market together with its subsidiaries. These services are all provided under the Complainant’s trademark BWIN via Internet and many of them are also available through other digital distribution channels, such as mobile phones. The bwin-group derives its revenues primarily from sports betting and poker. bwin’s main website is operated under the domain name by bwin International Ltd, a company located in Gibraltar, on the basis of gambling licenses issued in Gibraltar under the supervision of the government of Gibraltar. bwin International Ltd. is a wholly owned subsidiary of the Complainant.
The Complainant has provided excerpts of its 2009 annual report, which cites that the end of 2009, the bwin-group had total revenues of around EUR 423 million. The Complainant also provided excerpts of its 2010 semi annual statement, which cites that the total revenues in the first three quarters of 2010 were EUR 308 million.
The Complainant has trademark and name rights for the term BWIN. The term BWIN (International Registration No. 886220) was registered as an international trademark on February 3, 2006 and the logo BWIN (International Registration No. 896530) was registered as an international trademark on March 16, 2006. Additionally, both trademarks are registered as national trademarks in various countries, such as: Argentina, Austria, Andorra, Brazil, Chile, Colombia, India, Japan, Macedonia, Mexico, Peru and the Republic of South Africa. The Complainant also notes that the bwin-group owns many domain names containing the mark BWIN. 5. Parties’ Contentions A. Complainant
The Complainant provides online gambling and gaming entertainment. The Complainant maintains that due to its marketing activities, the trademark BWIN is known for online sports bets, poker, casino and other additional services like audio and video streaming. The Complainant cites bwin Interactive Entertainment AG v. wp,WIPO Case No. DES2009-0018, which acknowledged the worldwide reputation of the trademark BWIN (see also bwin Interactive Entertainment AG v. Andrei Gladchih,WIPO Case No. D2009-0167).
The Complainant also notes that it has been listed at the Vienna Stock Exchange as of March 2000. Since July 21, 2006, the name under which the Complainant is listed is bwin Interactive Entertainment AG. In addition, the bwin-group owns a number of domain names containing the mark BWIN.
The Complainant maintains that the Respondent has not and did not provide any content of his own under the disputed domain name. The Complainant also notes that the Respondent’s manner of use of the domain name is an intentional attempt to exploit the Complainant’s trademark and its reputation to divert customers to the websites of the Complainant’s competitors and their services.
In addition, the Complainant notes that the Respondent has no international or CTM-trademarks or names related to the terms “bwin” or “bbwin”. Furthermore, the Complainant has not licensed the Respondent to use its trademark.
The Complainant requests that the disputed domain name be transferred to the Complainant. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Confusingly Similar
The disputed domain name differs from the Complainant’s trademark only in one letter, namely the domain name contains an additional “b” preceding “bwin” and, beyond that, contains the Complainant’s trademark as a whole. The Complainant cites several WIPO panel decisions which have established that when a domain name wholly incorporates a complainant’s registered trademark, solely this fact may be sufficient to establish confusing similarity.
The Complainant also cites Pfizer Inc. v. ZJ,WIPO Case No. D2007-0050 and Interwetten AG v. BMG Media, Inc.,WIPO Case No. D2005-0744, in which the disputed domain names (as in this case) differed only in one position. In these cases, the deciding panels ruled that there was confusing similarity.
Accordingly, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
The Complainant has trademark and name rights for the term BWIN. The term BWIN (International Registration No. 886220) was registered as an international trademark on February 3, 2006 and the logo BWIN (International Registration No. 896530) was registered as an international trademark on March 16, 2006. Additionally, both trademarks are registered as national trademarks in various countries, as noted above.
The disputed domain name was registered on September 10, 2010. The Respondent did not provide any content of his own under the disputed domain name. At present, the website of the Respondent is not accessible.
There is no evidence in the record indicating that the Respondent has any rights or legitimate interests in the term “bwin” or “bbwin”.
There is no evidence that the Respondent has any rights to or legitimate interests in the disputed domain name. Based on the record, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
The term and the logo BWIN have respectively been registered as international trademarks in February and March, 2006. The Complainant has a subsidiary for the Asian market in the country of the Respondent, namely, bwin Beijing Management & Consulting Co. Ltd, with its registered office in Beijing, China. The Respondent registered the disputed domain name on September 10, 2010. At the time the Complainant became aware of the Respondent’s website, November 16, 2010, various links were established on the website to other companies acting in the same business as the Complainant. The Complainant sent a cease and desist letter to the Respondent on November 16, 2010. The Respondent did not reply to the letter.
There is thus evidence suggesting that the links displayed on the Respondent’s website were efforts to trade off the goodwill of the Complainant’s trademark. The incorporation of third party links acting in the same business as the Complainant supports a finding that a domain name registrant was aware of the Complainant’s mark at the time the domain name was registered.
The content at the time the Complainant became aware of Respondent’s website also suggests that the Respondent is aware of the Complainant. In addition, the Respondent is based in a country where the Complainant has significant marketing activity.
By registering the disputed domain name and offering links to third party services directly competitive with those of the Complainant, the Respondent is diverting traffic from the Complainant’s main website at the domain name . This is a violation of paragraph 4(b)(iv) of the Policy. There is no evidence in the record to refute this contention.
Accordingly, the Panel finds that the Complainant has 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 name be transferred to the Complainant.
Kimberley Chen Nobles
Sole Panelist
Dated: March 11, 2011
Full & Egal Universal Law Academy