The Complainant is K Limited of St. Julians, Malta, represented by Origin Ltd., United Kingdom.
The Respondent is WhoisGuard, Inc. of Panama City, Panama / Nguyen Hung Manh of Ha noi, Viet Nam. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with eNom (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 22, 2014. On August 22, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On August 25, 2014, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name, which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on August 26, 2014 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on August 26, 2014.
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 August 27, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was September 16, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 17, 2014.
The Center appointed Willem J. H. Leppink as the sole panelist in this matter on September 24, 2014. 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 following relevant facts are not contested.
The Complainant is the owner of various trademarks worldwide consisting of or containing the word elements CANDY CRUSH and CANDY CRUSH SAGA as a word mark or as text in a combined word/device mark.
In particular, the Complainant has rights in the Community Trade Mark (word mark) CANDY CRUSH SAGA with registration number 10,718,542, applied for on March 12, 2012, and in the United States Trademark for the word mark CANDY CRUSH SAGA with registration number 4,541,423, having March 12, 2012 as a priority date, both registrations for goods and services in classes 9, 25 and 41 (the “Trademark”).
The Domain Name was registered on September 28, 2013. 5. Parties’ Contentions A. Complainant
Insofar as relevant, the Complainant contends the following:
The Complainant is a leading interactive entertainment company for the mobile world. Complainant’s mission is to provide highly engaging content to its audience to match their mobile lifestyles: anywhere, anytime and on any device.
In December 2013, an average of 128 million daily active users played Complainant’s games more than 1.2 billion times per day. The Complainant develops and markets online social and mobile games, including the successful “Candy Crush Saga”, “Farm Heroes Saga”, “Papa Pear Saga” and “Pet Rescue Saga” games.
The games Candy Crush Saga, Pet Rescue Saga, Farm Heroes Saga and Bubble Witch 2 Saga currently hold the top four spots on most popular games on Facebook. Also Candy Crush Saga and Farm Heroes Saga hold two out of five of the top spots for top grossing games.
The Complainant’s Candy Crush Saga game has been positioned as the most popular game on Facebook and iOS and is available on several online platforms in numerous countries worldwide. Candy Crush Saga had 93 million average Daily Active Users (DAU) and 1,085 million average daily games played across all platforms in December 2013. The game challenges players to match sweets in a combination of three or more and has become a worldwide phenomenon and remains one of the most played titles in the world.
The game Candy Crush Saga is an expanded version of the Complainant’s game Candy Crush, which was released by the Complainant’s group company, M Limited, in March 2011.
As a result the Trademark has been used extensively.
The Domain Name incorporates and is identical or clearly at least confusingly similar to the Trademark and/or the other trademarks in which the Complainant has rights.
The Respondent has no rights or legitimate interests in respect of the Domain Name. The Policy sets forth a list of circumstances that can demonstrate a respondent’s right or legitimate interest in a domain name. None of these are present in this case. To the contrary, the Respondent is making use of the Complainant’s trademarks for attracting website traffic to the websites resolving at the Domain Names to provide what purports to be unauthorized copies of the Complainant’s game. In summary, there are (i) no bona fide offerings of goods or services or demonstrable preparations for such offerings, (ii) the Respondent is not commonly known by the Domain Name, and (iii) the Respondent is not making a legitimate noncommercial or fair use of the Domain Name.
The Domain Name was registered and is being used in bad faith. The Policy lists several circumstances that constitute evidence of the registration and use of a domain name in bad faith. The Respondent has in this case registered and is using the Domain Name with an intent to attract Internet users to the Respondent’s web site, by creating a likelihood of confusion with the Complainant’s marks as to the source, sponsorship, affiliation, or endorsement of the Respondent’s web site and/or of a product on the Respondent’s web site or location.
The Domain Name was registered several years after the launch of Candy Crush and well over a year after the release of Candy Crush Saga.
The Respondent clearly noticed the success of the Complainant’s games before registering the Domain Name. In fact, the Respondent registered the Domain Name because of the games’ success. Innocent use is not plausible as the content of the website to which the Domain Name resolves, clearly indicates that the Respondent was (and is) aware of and registered the Domain Name with knowledge of the Complainant’s trademarks.
The website to which the Domain Name resolves, purports to provide non-authorized copies of the Complainant’s game. The site uses the Complainant’s Candy Crush Saga family of marks and copyrighted artwork in such a manner as to appear to a visitor to be an official site for Complainant or a site being endorsed or affiliated with the Complainant.
The Respondent does not have the permission to use the Complainant’s copyrighted works or registered trade marks, and has not tried to seek permission from the Complainant to incorporate the Complainant’s copyrighted works or trade mark into the website. Such unauthorized use of the Complainant’s intellectual property on the website of the Domain Name constitutes further evidence of the Respondent’s bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Pursuant to paragraph 4(a) of the Policy, the Complainant must prove each of the following three elements:
(i) the Domain Name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) the Domain Name registered by the Respondent has been registered and is being used in bad faith. A. Identical or Confusingly Similar
As also described in paragraph 1.2 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), the generic Top-Level Domain, in this case, “.mobi”, would usually be disregarded under the test to be applied.
The Domain Name contains the Trademark in its entirety. Therefore the Domain Name is identical to a trademark in which the Complainant has rights.
For the foregoing reason, the Panel finds that the Complainant has met its burden under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
The Respondent did not reply to the Complainant’s contentions. For that reason, the Panel has taken careful note of the factual assertions that have been made and supported by evidence by the Complainant.
In particular, the Respondent has failed to offer the Panel any of the types of evidence set forth in paragraph 4(c) of the Policy from which the Panel might conclude that the Respondent has rights or legitimate interests in the Domain Name, such as:
(i) use or preparation to use the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services prior to notice of the dispute; or
(ii) being commonly known by the Domain Name (as an individual, business or other organization) even if the Respondent has not acquired any trademark or service mark rights; or
(iii) making legitimate noncommercial 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.
There is no evidence in the case file that the Respondent has any rights or legitimate interests in the Domain Name.
The Respondent does not seem to be affiliated with the Complainant in any way. There is no evidence that Candy Crush Saga is the Respondent’s name or that the Respondent is commonly known as Candy Crush Saga. There is also no evidence that the Respondent is, and has ever been, a licensee of the Complainant and that the Respondent has ever asked, and has ever been permitted in any way by the Complainant to register or use the Complainant’s marks, or to apply for or use any domain name incorporating any of the marks.
Furthermore, the use of the Domain Name cannot be considered a bona fide offering of goods or services. In particular, the Respondent did not demonstrate any use or demonstrable preparation to use the Domain Name in connection with a bona fide offering of goods or services as the Respondent is using the Domain Name for the sole purpose of misleading Internet users.
It is also clear that the Respondent is not making any legitimate noncommercial or fair use of the Domain Name.
Finally, given the circumstance of this case, the Panel finds that the Respondent’s lack of rights or legitimate interests in the Domain Name may also be inferred by the fact that no response was filed by the Respondent. According to earlier UDRP decisions “non-response is indicative of a lack of interests inconsistent with an attitude of ownership and a belief in the lawfulness of one’s own rights” (see Pomellato S.p.A. v. Richard Tonetti,WIPO Case No. D2000-0493 and GA Modefine S.A. and Giorgio Armani S.p.A. v. Yoon-Min Yang,WIPO Case No. D2005-0090).
Therefore, based on the evidence, the Panel is satisfied that the second element of the Policy is met. C. Registered and Used in Bad Faith
The Panel finds that the Domain Name was registered and is being used in bad faith.
In light of the evidence filed by the Complainant and the absence of a reply, the Panel finds that the Complainant’s trademarks and activities are well-known throughout the world. Accordingly, in the Panel’s view, the Respondent must have been aware of the Complainant’s existence and rights when it registered the Domain Name. This is emphasized by the fact that the website to which the Domain Name resolves, includes trademarks in which the Complainant has rights, graphical elements of the games that the Complainant markets and the website provides links where the user can click and download a file that purports to be the game Candy Crush Saga.
This behavior of the Respondent fits the example of paragraph 4(b)(iv) of the Policy, i.e. that by using the Domain Name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s web site or location or of a product or service on the Respondent’s web site or location.
Although the lack of a reply by the Respondent as such cannot by itself lead to the conclusion that there is use in bad faith, the cumulative circumstances as outlined in the decision are sufficient for the Panel to find that the use by the Respondent is in bad faith.
In light of the above circumstances, the Panel is satisfied that the third element of the Policy is met and 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.
Willem J. H. Leppink
Sole Panelist
Date: September 28, 2014
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