The Complainant is Take-Two Interactive Software, Inc. of Los Angeles, California, United States of America, represented by Mitchell, Silberberg & Knupp, LLP, United States of America.
The Respondent is Howard Clark of Cebu City, CEB, Philippines. 2. The Domain Name and Registrar
The disputed domain name is registered with 1&1 Internet AG (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 10, 2013. On April 11, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 12, 2013, the Registrar 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 April 17, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was May 7, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 8, 2013.
The Center appointed Michael J. Spence as the sole panelist in this matter on May 16, 2013. 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 global leader in the development and supply of consumer video games, including the immensely successful GRAND THEFT AUTO or GTA. The Complainant has rights in the trade mark GTA. GTA is one of the most successful video games of all time. GTA V was released in November 2011 and was, the Complainant contends, "one of the most anticipated games in the world". A 'beta' version of a video game is a "pre-release version that provides early access to a limited number of users for the purpose of testing the game". 5. Parties’ Contentions A. Complainant
The Complainant contends that the disputed domain name is identical or confusingly similar to its trade mark; that the Respondent has no rights or legitimate interests in the disputed domain name; and that it has been registered and is being used in bad faith. 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 contains the Complainant's trade mark in its entirety. The addition of “5betakeysgiveaway” does nothing to distinguish the disputed domain name from the Complainant's trade mark. This is because the number “5” suggests an allusion to version five of the GTA game and the term “betakeysgiveaway” may be taken to refer to the video game industry practice of pre-releasing 'beta' versions, suggesting that in this case “keys” area available at the web site operating under the disputed domain name that will give access to a “beta” version of the game at no charge. Far from distinguishing the disputed domain name from the Complainant's trade mark, this reinforces the suggestion of a connection with the Complainant's successful game.
The Panel therefore finds that the Complainant has established the first element of paragraph 4(a) of the Policy in relation to the disputed domain name. B. Rights or Legitimate Interests
It is for the Complainant to establish, at least prima facie that the Respondent has no rights or legitimate interests in the disputed domain name (Croatia Airlines D.D. v. Modern Empire Internet Ltd. D2003-0455, Belo did. v. WACHEM dodo. WIPO Case No. D2004-0110).
In this case the Respondent has no connection with the Complainant’s trade mark. The likelihood of confusion is very strong. Moreover, the Respondent is using the disputed domain name for a site that purports to offer a “beta” version of the Complainant's game, though no such version has ever been released. The site appears to constitute a so-called “phishing” scheme in which user's personal information is gathered by false pretenses for unlawful purposes. It is clear that such use cannot give rise to rights or legitimate interests in the disputed domain name.
The Panel therefore finds that the Complainant has established the second element of paragraph 4(a) of the Policy in relation to the disputed domain name. C. Registered and Used in Bad Faith
As indicated above, in this case the Respondent appears to be attempting to exploit the strong likelihood of confusion between the disputed domain name and the Complainant's trade mark for commercial gain. Such circumstances constitute perhaps the clearest case of registration and use in bad faith.
The Panel therefore finds that the Complainant has established the third element of paragraph 4(a) of the Policy in relation to the disputed domain name. 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 disputed domain name be transferred to the Complainant.
Michael J. Spence
Sole Panelist
Date: May 30, 2013
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