1.1 The Complainant is Supercell Oy of Helsinki, Finland, represented by Roschier Brands, Attorneys Ltd., Finland.
1.2 The Respondent is Don Renne of Rockvale, Tennessee, United States of America. 2. The Domain Name and Registrar
2.1 The disputed domain name (the "Domain Name") is registered with GoD, LLC (the "Registrar"). 3. Procedural History
3.1 The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on July 3, 2015. On July 3, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On July 6, 2015 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.
3.2 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").
3.3 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 July 9, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was July 29, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on July 30, 2015.
3.4 The Center appointed Matthew S. Harris as the sole panelist in this matter on August 6, 2015. 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
4.1 The Complainant is a company that is incorporated and is based in Finland. The term "Oy" in the name "Supercell Oy", is an abbreviation of Osakeyhtiö, the Finish equivalent of, for example, the term "Limited" in the United Kingdom of Great Britain and Northern Ireland.
4.2 The Complainant was founded in 2010 and is engaged in the business of mobile games for mobile devices. Examples include "Clash of Clans", "Boom Beach" and "Hay Day". The Complainant's revenues in 2014 were in excess of Euros 1.5 billion.
4.3 The Complainant is the owner of various registered trade marks that comprise or incorporate the term "Supercell". These include:
(i) Community trade mark no 009704446 for the word mark SUPERCELL filed on February 2, 2011 in classes 9, 28 and 41; and
(ii) United States registered figurative trade mark no 4705895 filed on October 16, 2013, in classes 9, 28, 41 and 42, which takes the following form:
4.5 The Complainant has engaged in extensive marketing activity in the United States and elsewhere. It reportedly spent USD 9 million for an advertisement that was shown during the Super Bowl American football match in February 2015.
4.6 The Domain Name was registered on May 24, 2015.
4.7 The Respondent would appear to be an individual located in the United States.
4.8 Since registration a GoDaddy parking page has been displayed from the Domain Name incorporating various sponsored links. 5. Parties' Contentions A. Complainant
5.1 The Complainant refers to the Complainant's various registered marks and contends that the second level of the Domain Name is identical to the Complainant's SUPERCELL word marks and the dominant element of the Complainant's figurative marks.
5.2 The Complainant contends that the Respondent had not registered "Supercell" as a trade mark or company name anywhere in the world, has not used the mark for any offering of goods and services and is not known by the term "Supercell". It also asserts the Complainant has not licensed or otherwise permitted the Complainant to use its marks. It contends that it has thereby made out a prima face case so far as lack of rights or legitimate interests is concerned and that the burden of proof passes to the Respondent in this respect.
5.3 So far as bad faith is concerned the Complainant contends that this is a case where the Domain Name has been passively held in bad faith and relies in this respect on the decision in Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003.
5.4 In this respect it gives details of nature and scope of the Complainant's business activities and contends that:
"The significant popularity of [the Complainant] and its games makes it very likely that the Respondent has known of [the Complainant's] trade [ ] mark rights at the time of registering the [Domain Name]" B. Respondent
5.5 The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
6.1 There are no exceptional circumstances within paragraph 5(e) of the Rules so as to prevent this Panel from determining the present dispute based upon the Complaint, notwithstanding the failure of the Respondent to lodge a formal Response.
6.2 Notwithstanding this default, it remains incumbent on the Complainant to make out its case in all respects under paragraph 4(a) of the Policy. Namely, the Complainant must prove that:
(i) the Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights (Policy, paragraph 4(a)(i)); and
(ii) the Respondent has no rights or legitimate interests in respect of the Domain Name (Policy, paragraph 4(a)(ii)); and
(iii) the Domain Name has been registered and is being used in bad faith (Policy, paragraph 4(a)(iii)).
6.3 However, under paragraph 14 of the Rules, where a party does not comply with any provision of the Rules, the panel shall "draw such inferences therefrom as it considers appropriate". A. Identical or Confusingly Similar
6.4 The Panel accepts that the most sensible reading of the Domain Name as the term "Supercell" in combination with the ".mobi" top level domain ("TLD"). The Complainant is also the owner of several trade marks that comprise or incorporate the term "Supercell". Given this, the Panel finds that the Domain Name is confusingly similar to a number of trade marks in which the Complainant has rights.
6.5 In the circumstances, the Complainant has made out the requirements of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
6.6 The Complainant has expressed its case as one where it has prima facie shown that the Respondent has no rights or legitimate interests in the Domain Name and that therefore the burden of production on this issue passes to the Respondent.
6.7 This is an approach that has been adopted by many panelists in the past. It is identified as a "consensus" view in paragraph 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0").
6.8 This Panel prefers to adopt a more direct approach to this issue. For reasons that it sets out in greater detail when considering bad faith registration and use later on in this decision, the Panel has reached the view that the most likely explanation for the Respondent's registration and holding of the Domain Name is not because of any descriptive use of the term "Supercell", but because the Respondent intended to take unfair advantage of the Complainant's SUPERCELL trade marks by reason of the similarity of the Domain Name to those marks. Such activity does not provide a right or legitimate interest within the purposes of the Policy (see paragraph 2.2 of the WIPO Overview 2.0) and this is a case where it constitutes positive evidence that such a right or interest does not exist.
6.9 In the circumstances, the Complainant has made out the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
6.10 It is possible to conceive of some descriptive or generic use of the term "supercell". For example, although there are no submissions before the Panel on this point, the Panel is aware of the use of this term for a certain type of thunderstorm.
6.11 However, the Panel accepts that the Respondent was well aware of the Complainant's business at the time that the Domain Name was registered. In this respect, it takes account of the extent of the Complainant's business and marketing activities both world wide and in the United States in particular.
6.12 Further, there is the fact that the Domain Name incorporates the TLD ".mobi". It is well known that ".mobi" is an abbreviation for the term "mobile" and that ".mobi" domain names are intended to indicate websites that have been optimised for mobile devices. The Complainant business activities primarily involve the creation and promotion of games for mobile devices.
6.12 Given this the only sensible conclusion for this Panel that can be reached in this case on the material before the Panel, is that the Domain Name was registered and has been held, not just with knowledge of the Complainant's trade marks, but with the intention of taking some unfair commercial advantage of those marks. This is sufficient for a finding of bad faith registration and use (see, for example, M, LP v. Bill Zag and NWLAWS.ORG,WIPO Case No. D2004-0230).
6.13 The use made of the Domain Name to display a GoDaddy parking page with sponsored links to third party sites, also most likely falls within the scope of paragraph 4(b)(iv) of the Policy. This is so even if the Respondent has not personally benefited from any revenue generated from such links (see for example, Express Scripts, Inc. v. Windgather Investments Ltd. / Mr. CartwrightWIPO Case No. D2007-0267).
6.14 In the circumstances, the Complainant has made out the requirements of paragraph 4(a)(iii) of the Policy. 7. Decision
7.1 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.
Matthew S. Harris
Sole Panelist
Date: August 20, 2015
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