Complainant is BML Group Limited of Ta Xbiex, Malta, represented by Domain and Intellectual Property Consultants, DIPCON AB, Sweden.
Respondent is Proxy My Whois AB of Sergipe, Sweden, self-represented. 2. The Domain Name and Registrar
The disputed domain name (the "Disputed Domain Name") is registered with GoD, LLC (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on October 28, 2015. On October 28, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On October 28, 2015, the Registrar transmitted by email to the Center its verification response confirming that 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 and 4, the Center formally notified Respondent of the Complaint, and the proceeding commenced on November 10, 2015. In accordance with the Rules, paragraph 5, the due date for Response was November 30, 2015. The Response was filed with the Center on November 30, 2015.
The Center appointed Richard W. Page as the sole panelist in this matter on December 11, 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
Complainant is a limited liability company which was established in Malta. Complainant runs a well-known game site "" under the name BETSSON where a wide range of first-class online gambling products and games in a safe user-friendly gaming environment are provided. Complainant is today one of the leading suppliers of online gaming products worldwide, with over 450,000 customers from over 100 different countries. Complainant has been able to establish itself as one of the most trusted and reliable gaming companies in the market.
The Disputed Domain Name was registered on December 20, 2003.
Complainant has numerous trademarks with European registrations (the "BETSSON Mark") dating from December 2, 2005.
A cease and desist letter regarding the Disputed Domain Name was sent to Respondent via email on October 5, 2015. 5. Parties' Contentions A. Complainant
Complainant alleges that the Disputed Domain Name is confusingly similar to the BETSSON Mark because the Disputed Domain Name contains the entirety of the BETSSON Mark. The difference is the deletion of the final letter "n" in the Disputed Domain Name. Complainant further alleges that "betsso" is an intentional misspelling of the word "betsson".
Complainant contends that Respondent does not have any rights or legitimate interests in the Disputed Domain Name. Respondent has no license from Complainant or any other right to use the BETSSON Mark. Complainant further contends that the Disputed Domain Name is parked and contains sponsored links, suggesting that it was registered to commercially profit from misleading consumers searching for information about the Complainant's business. Complainant submits that a parked website is not sufficient to create rights or legitimate interests for Respondent in the Disputed Domain Name.
Complainant alleges that Respondent has not been commonly known by the Disputed Domain Name or is making a legitimate noncommercial or fair use of the Disputed Domain Name.
Complainant asserts that Respondent registered the Disputed Domain Name in bad faith. At the time of registration of the Disputed Domain Name on December 20, 2003, Complainant was already conducting business under the domain name registered on March 4, 2001. Complainant argues that it is therefore likely that Respondent was well aware of Complainant's trademarks and business when registering the Disputed Domain Name. Complainant further argues the fact that the Disputed Domain Name was redirected to Complainant's website implies knowledge of Complainant's trademarks and business.
Complainant asserts that Respondent is trying to take advantage of the BETSSON Mark in order to draw traffic to its website. Complainant further asserts that the Disputed Domain Name has been registered to commercially profit from the likelihood of confusion between the Disputed Domain Name and the BETSSON Mark. B. Respondent
Respondent contends that the Disputed Domain Name is several years older than the application for registration of the BETSSON Mark. Respondent further contends that the Disputed Domain Name has worldwide effect, whereas the applications for the BETSSON Mark show limited geographical scope (including Sweden and the Netherlands).
Respondent asserts that it does not market in any of the classes identified in the BETSSON Mark applications: clothing (25), financial services (36), telecommunications (33) and gaming (41).
Respondent argues that the BETSSON Mark is a family name "Bets-son" or descriptive of "bets-on" for gambling. Respondent further argues that "betsso" in the Disputed Domain Name has nothing to do with either connotation of the BETSSON Mark and is not confusingly similar.
Respondent further asserts that there has been no traffic to the Disputed Domain Name and the website to which it resolves, except for the testing done by Complainant. Respondent argues that it got no commercial gain from the testing traffic. Respondent further argues that the "" website is affiliated with Complainant and that Complainant itself (for free) is the only beneficiary of such traffic.
Respondent contends that the Disputed Domain Name has had the same use for its entire existence, and that the Disputed Domain Name is not indexed for search engines. Respondent further contends that any parking of the Disputed Doman Name with sponsored links was done independently by the Registrar when this proceeding was filed. 6. Discussion and Findings
Paragraph 15(a) of the Rules instructs the Panel as to the principles the Panel is to use in determining the dispute: "A Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules, and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:
(i) that the Disputed Domain Name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) that Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and
(iii) that the Disputed Domain Name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
Complainant contends that it has numerous registrations of the BETSSON Mark and that its trademark registrations serve as prima facie evidence of its ownership and the validity of the BETSSON Mark.
Previous UDRP decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive. Respondent has the burden of refuting this assumption. See, e.g., EAuto, L.L.C. v. Triple S. Auto Parts d/b/a Kung Fu Yea Enterprises, Inc.,WIPO Case No. D2000-0047.
Respondent has not contested the assertions by Complainant that it has valid registrations of the BETSSON Mark. However, Respondent has argued that the scope of the BETSSON Mark is limited geographically, because the registrations are in Sweden and the Netherlands.
In any event, the Panel finds that any geographical limitation is immaterial, because Respondent is located in Sweden and two of the registrations appear to be in Sweden. Therefore, the Panel finds that Complainant, for purposes of this proceeding, has enforceable rights in the BETSSON Mark.
Complainant further contends that the Disputed Domain Name is identical with and confusingly similar to the BETSSON Mark pursuant to paragraph 4(a)(i) of the Policy.
Numerous UDRP decisions have recognized that incorporating a trademark in its entirety can be sufficient to establish that a domain name is identical or confusingly similar to a registered trademark. See The Nasdaq Stock Market, Inc. v. Green Angel,WIPO Case No. D2001-1010; Kabushki Kaisha Toshiba d/b/a/ Toshiba Corporation v. Distribution Purchasing & Logistics Corp.,WIPO Case No. D2000-0464.
The Panel notes that the primary difference between the BETSSON Mark and the Disputed Domain Name is the deletion of an "n" to make "betsso". Respondent argues that this difference distinguishes the Disputed Domain Name in meaning. The Panel finds that the sound and appearance of "betsso" are sufficiently similar to "betsson" as to be confusingly similar.
Therefore, the Panel finds that the Disputed Domain Name is confusingly similar to the BETSSON Mark pursuant to paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
Complainant contends that Respondent has no rights or legitimate interests in the Disputed Domain Name pursuant to paragraph 4(a)(ii) of the Policy.
Paragraph 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0") states that once a complainant makes a prima facie case in respect of the lack of rights or legitimate interests of a respondent, the respondent carries the burden of demonstrating it has rights or legitimate interests in the domain name. Where the respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy.
Paragraph 4(c) of the Policy allows three nonexclusive methods for the Panel to conclude that Respondent has rights or legitimate interests in the Disputed Domain Name:
(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 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.
Complainant alleges that its controls run on Respondent's website indicate that the Disputed Domain Name is immediately re-directed to Complainant's website. Therefore, Respondent is not using the Disputed Domain Name in connection with a bona fide offering of goods or services.
Complainant alleges that Respondent has not been commonly known by the Disputed Domain Name or is making a legitimate noncommercial or fair use of the Disputed Domain Name.
Complainant further alleges that Respondent has no license from Complainant or any other right to use the BETSSON Mark. Complainant further contends that the Disputed Domain Name is parked and contains sponsored links, suggesting that it was registered to commercially profit from misleading consumers searching for information about Complainant's business. Complainant submits that a parked website is not sufficient to create rights or legitimate interests for Respondent in the Disputed Domain Name.
The Panel finds that Complainant has come forward with a prima facie case that Respondent lacks rights or legitimate interests in the Disputed Domain Name. The burden of production now switches to Respondent.
Respondent counters that there has been no traffic to the Disputed Domain Name and the website to which it resolves, except for the testing done by Complainant. Respondent got no commercial gain from the testing traffic. Respondent argues that the "" website is affiliated with Complainant, and that Complainant itself (for free) is the only beneficiary of such traffic.
Respondent contends that the Disputed Domain Name has had the same use for its entire existence, which use is noncommercial testing and research. Respondent continues that the Disputed Domain Name is not indexed for search engines. Respondent further contends that any parking of the Disputed Doman Name with sponsored links was done independently by the Registrar when this proceeding was filed.
The Panel finds that the use of the Disputed Domain Name described by Respondent does not constitute the bona fide offering of goods or services and Respondent is not commonly known by the Disputed Domain Name.
The Panel further finds that the explanation of Respondent that it only uses the Disputed Domain Name and the website to which it resolves for internal testing purposes and that Respondent routed all traffic to Complainant's website is not persuasive. This explanation lacks sufficient corroboration by Respondent to refute Complainant's allegation of the commercial intent of Respondent.
Therefore, the Panel determines that Respondent has no rights or legitimate interests in the Disputed Domain Name and Complainant has prevailed in its case under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
Complainant contends that Respondent registered and is using the Disputed Domain Name in bad faith in violation of paragraph 4(a)(iii) of the Policy.
Paragraph 4(b) of the Policy sets forth four nonexclusive criteria for Complainant to show bad faith registration and use of domain name. The pertinent paragraph for the Panel's decision is paragraph 4(b)(iv) of the Policy:
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site 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 web site or location or of a product.
Complainant contends that Respondent registered the Disputed Domain Name in bad faith. At the time of registration of the Disputed Domain Name on December 20, 2003, Complainant was already conducting business under the domain name . Complainant argues that it is therefore likely that Respondent was well aware of Complainant's trademarks and business when registering the Disputed Domain Name. Complainant further argues the fact that the Disputed Domain Name was redirected to Complainant's website implies knowledge of Complainant's trademarks and business.
Complainant asserts that Respondent is trying to take advantage of the BETSSON Mark in order to draw traffic to its website. Complainant further asserts that the Disputed Domain Name has been registered to commercially profit from the likelihood of confusion between the Disputed Domain Name and the BETSSON Mark.
Respondent contends that the Disputed Domain Name is several years older than the application for registration of the BETSSON Mark. Respondent further contends that the Disputed Domain Name has worldwide effect, whereas the application for the BETSSON Mark show limited geographical scope (including Sweden and the Netherlands).
Respondent contends that there has been no traffic to the Disputed Domain Name and the website to which it resolves, except for the testing done by Complainant. Respondent got no commercial gain from the testing traffic. Respondent argues that the "" website is affiliated with Complainant and that Complainant itself (for free) is the only beneficiary of such traffic.
Respondent contends that the Disputed Domain Name has had the same use for its entire existence and that the Disputed Domain Name is not indexed for search engines. Respondent further contends that any parking of the Disputed Doman Name with sponsored links was done independently by the Registrar when this proceeding was filed.
The Panel finds that Complainant has established by a preponderance of the evidence that Respondent was aware of Complainant's trademarks and business. The Panel previously found that the Disputed Domain Name is confusingly similar to the BETSSON Mark. The Panel also previously found that the explanation of Respondent that it only uses the Disputed Domain Name and the website to which it resolves for internal testing purposes and that Respondent routed all traffic to Complainant's website is not persuasive. This explanation lacks sufficient corroboration by Respondent to refute Complainant's allegation of the commercial intent of Respondent.
Therefore, the Panel finds that Complainant has proved bad faith under paragraph 4(b)(iv) of the Policy and paragraph 4(a)(iii) of the Policy. 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 Complainant.
Richard W. Page
Sole Panelist
Date: January 11, 2016
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