The Complainant is Danske Spil A/S of Brøndby, Denmark, represented by Zacco Denmark A/S, Denmark.
The Respondent is Domain Admin of California, United States of America. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 11, 2011. On February 15, 2011, the Center transmitted by email to GoD, Inc. a request for registrar verification in connection with the disputed domain name. On February 16, 2011, GoD, Inc. 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 February 24, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was March 16, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 24, 2011.
The Center appointed Fabrizio La Spada as the sole panelist in this matter on April 13, 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. 4. Factual Background
The Complaint contains very few facts, only parts of which are supported by evidence. These facts can be summarized as follows.
The Complainant is a gaming company. The Complainant is the owner of a trademark DANSKE SPIL + device, nr. VR 2001 00116, registered in Denmark on January 5, 2001 in international classes 9, 16, 28, 35, 36, 41, 42, and 43.
The disputed domain name was registered on March 15, 2008. It resolves to a web page showing commercial links that are automatically generated, some of which compete with the Complainant’s activities and others which link to sites offering dating services. 5. Parties’ Contentions A. Complainant
Concerning the first test under the Policy, the Complainant submits that it owns the trademark DANSKE SPIL in Denmark and that the disputed domain name “consists of the Complainant’s Danish company name and trademark which is wellknown in Denmark”.
Concerning the second test under the Policy, the Complainant submits that it has exclusive rights to the DANSKE SPIL trademark and that “no licence/permission/authorization respectively consent has been granted to use DANSKE SPIL in the domain name ”. The Complainant also points out that the Respondent is a United States based company which uses the disputed domain name in connection with a pay-per-click website and is not known by the name Danske Spil. Further, according to the Complainant, the Respondent has no other rights or legitimate interests in respect of the disputed domain name.
Finally, concerning the third test under the Policy, the Complainant contends that it is obvious that the Respondent is using the disputed domain name for commercial gain and with the purpose of capitalizing on the fame of the Complainant’s trademark. According to the Complainant, by using the disputed domain name, the Respondent is intentionally misleading the consumers and confusing them by making them believe that the website to which the domain name resolves is associated or recommended by the Complainant. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
In accordance with paragraph 4(a) of the Policy, in order to succeed in these proceedings and obtain the transfer of the disputed domain name, the Complainant must prove that each of the three following elements is satisfied:
(i) The domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights (see below, section A); and
(ii) The Respondent has no rights or legitimate interests in respect of the domain name (see below, section B); and
(iii) The domain name has been registered and is being used in bad faith (see below, section C).
Paragraph 4(a) in fine of the Policy states that the burden of proof with regard to these elements lies with the Complainant. A. Identical or Confusingly Similar
This question raises two issues: (1) does the Complainant have rights in a trademark or service mark; and (2) is the domain name identical or confusingly similar to such trademark or service mark.
As regards the first issue, the Complainant has provided documentary evidence that it is the owner of a trademark consisting of the words DANSKE SPIL + device, in which the words “Danske Spil” clearly predominate compared to the figurative element of the mark.
Concerning the second issue, the Panel finds that the domain name is confusingly similar to the Complainant’s DANSKE SPIL trademark, as it is identical to the word elements of the Complainant’s trademark.
The Panel therefore finds that the domain name is confusingly similar to a trademark in which the Complainant has rights. B. Rights or Legitimate Interests
According to paragraph 4(c) of the Policy, a respondent may establish its rights or legitimate interests in a domain name, among other circumstances, by showing any of the following elements:
“(i) before any notice to you [Respondent] of the dispute, your use 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) you [Respondent] (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you [Respondent] are making a legitimate non-commercial 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.”
In the present case, the Respondent has not filed a response to the Complaint. However, based on the evidence on record, the Panel is satisfied that the Respondent has no rights or legitimate interests in the domain name, for the following reasons.
First, there is no indication that the Respondent has used or prepared to use the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services. The use of the disputed domain name for third-party advertising cannot be considered a use in connection with a “bona fide offering of goods or services”, where the domain name incorporates a distinctive trademark (not, for example, a dictionary word or descriptive phrase) and the website links to advertising for products that compete with the Complainant’s (see, e.g., Rolex Watch U.S.A., Inc. v. Vadim Krivitsky,WIPO Case No. D2008-0396). Concerning distinctiveness of the trademark, the Panel notes that the words “danske spil” have no meaning in English, country where the Respondent is from, and there is no indication that the Respondent is a Danish entity, has any relationship with Denmark or intended to use the domain name to offer any products or services specifically directed to Denmark or Danish customers.
Second, the Respondent has no connection or affiliation with the Complainant, which has not licensed or otherwise authorized the Respondent to use or apply for any domain name incorporating the Complainant’s trademark.
Third, the Respondent does not appear to be commonly known as “Danske Spil” or by a similar name, and there is no indication on record that could justify rights and/or legitimate interests in the disputed domain name.
Fourth, the Respondent does not appear to make any legitimate use of the disputed domain name for non-commercial activities. On the contrary, the website to which the disputed domain name resolves is used to display commercial links. Whether or not the Respondent itself derives revenue from the links is irrelevant (see, e.g., Villeroy & Boch AG v. Mario Pingerna,WIPO Case No. D2007-1912).
Finally, there are no other elements on record, nor explanations by the Respondent (which did not file a response in the course of these proceedings), indicating that the Respondent would have rights or legitimate interests in respect of the disputed domain name.
Therefore, the Panel finds that the Respondent does not have rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out four circumstances which, without limitation, shall be evidence of the registration and use of a domain name in bad faith. In particular, Paragraph 4(b)(iv) provides as an instance of registration and use in bad faith, circumstances indicating that:
“(iv) by using the domain name, you [Respondent] have intentionally attempted to attract, for commercial gain, Internet users to your 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 your website or location or of a product or service on your website or location.”
The Panel is satisfied that these circumstances are fulfilled in this case. Indeed, the Respondent uses the Complainant’s trademark (which also corresponds to the Complainant’s name) in its entirety. As set out above, this trademark has no meaning in English. Based on the evidence on record, the Panel can conceive of no other reason for the Respondent’s registration and use of the disputed domain name than to intentionally attempt to attract users to its website by creating a likelihood of confusion with the Complainant’s mark.
Therefore, the Panel finds that the domain name was registered and is being used in bad faith. 7. Decision
For 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.
Fabrizio La Spada
Sole Panelist
Dated: May 2, 2011
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