The Complainant is Veikkaus Oy of Veikkaus, Finland, represented by Eversheds Solicitors, Finland.
The Respondent is Super Privacy Service c/o Dynadot of San Mateo, California, United States of America. 2. The Domain Names and Registrar
The Disputed Domain Names and are registered with Dynadot, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 11, 2015. On November 11, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Names. On November 11, 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.
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 the Respondent of the Complaint, and the proceedings commenced on November 30, 2015. In accordance with the Rules, paragraph 5, the due date for Response was December 20, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 21, 2015.
The Center appointed Charné Le Roux as the sole panelist in this matter on January 11, 2016. 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 private company incorporated in Finland and the owner of the trade mark VEIKKAUS. It has used this trade mark since its incorporation in the 1940s. It was also at that time that the Complainant was provided with a sole and exclusive licence to organize lotteries and betting games and services in Finland. As of 2012, the said license was extended to the Complainant by statute, being the Finnish Lotteries Act. The Complainant is the proprietor of six registrations for the VEIKKAUS trade mark, obtained from the Finland Trade Marks Office from as early as 1993. The Complainant is also the owner of two Community Trade Mark registrations for the VEIKKAUS trade mark, dated 2009 and 2010 respectively. The Complainant’s registrations cover goods and services in classes 9, 16, 25, 28 and 41, mostly for advertising, gaming and online gaming services. The Complainant furthermore owns the domain name .
The first Disputed Domain Name, , was registered on July 6, 2012 and the website associated with it, whilst in Finnish, appears to offer casino and gaming services and includes sponsored links to similar products. The second Disputed Domain Name, , was registered on September 24, 2015 and the website associated with it is virtually identical to the website associated with the first Disputed Domain Name.
The Complainant sent a cease and desist letter, written in Finnish, to the Respondent on September 17, 2015 requiring a response on September 24, 2015. No response was received to this letter. A second letter was sent by the Complainant to the Registrar, with a request to disclose information regarding the Respondent. The Registrar’s reaction to that letter was to refer the Complainant to the provisions of the UDRP. 5. Parties’ Contentions A. Complainant
The Complainant submits that it has acquired rights in the VEIKKAUS trade mark by virtue of:
a. Six registrations obtained from the Finnish Trade Marks Office for the said mark, as well as two Community Trade Mark registrations.
b. Its use of the VEIKKAUS trade mark for over 7 decades in relation to lotteries and betting games in Finland.
The Complainant argues that the Disputed Domain Names are confusingly similar to its registered VEIKKAUS trade mark in that firstly, the Disputed Domain Names wholly incorporate the trade mark. Secondly, in respect of the first Disputed Domain Name, the addition of the generic “fi” (which refers to the Internet country code of Finland) does not add anything distinctive to the Disputed Domain Name. In fact, it mimics the Complainant’s Finnish domain name and so actually increases the risk of confusion. Insofar as the second Disputed Domain Name is concerned, the Complainant points out that the phrase “jarahapelit” is translated from Finnish to English as “money games” and that this generic term does not make a difference to the overall impression of the second Disputed Domain Name.
The Complainant contends that the Respondent lacks rights or legitimate interests in the Disputed Domain Names in that:
a. The Respondent is not authorized to use the Complainant’s VEIKKAUS trade mark.
b. The Respondent is not commonly known by the VEIKKAUS trade mark and in fact only uses the Complainant’s trade mark to mislead Internet users.
c. The term “veikkaus” is an invented word and is not descriptive of playing a monetary bet in connection with games, its meaning being “guess”, “forecast” or “prediction”. As such, the VEIKKAUS trade mark is associated only with the Complainant.
d. The Respondent is not engaged in a bona fide offering of goods and services, as the websites associated with the Disputed Domain Names provide services in competition with the Complainant.
e. The Respondent’s registration of the second Disputed Domain Name, which occurred after the Complainant sent a cease and desist letter to it (and on the same day as the due date for a reply to the letter), demonstrates an absence of legitimate rights.
f. The Respondent’s selection of the Disputed Domain Names was not based on a right or legitimate interest, but a desire to mislead Internet users as to the ownership and sponsorship of the websites maintained at the Disputed Domains Names at issue, in order to reap a financial reward from the pay-per-click links to competing products.
The Complainant further contends that the Disputed Domain Names were registered and are being used in bad faith. According to the Complainant, the nature and duration of the Complainant’s operations and the existence of its trade mark rights make it impossible for the Respondent to have been unaware that the registration and use of the Disputed Domain Names would violate the Complainant’s rights. Also, the Respondent’s bad faith is exacerbated by the fact that the second Disputed Domain Name was registered directly after the Complainant had sent a cease and desist letter.
The Complainant argues that the Respondent intentionally, for commercial gain, attracts Internet users to the Respondent’s websites and further also to third party websites through pay-per-click links, by creating a likelihood of confusion with the Complainant’s trade mark and its earlier domain name . The Complainant also argues that the Respondent demonstrates its bad faith conduct by acting, at all accounts, in contravention of the Finnish Lotteries Act, which grants exclusive rights to the Complainant to provide lotteries and betting games in Finland, due to the Respondent seemingly offering such services to Finnish consumers. The Complainant points out that the websites associated with the Disputed Domain Names are in Finnish and that this language is largely used and understood only in Finland.
The Complainant also submits that the use by the Respondent of the Registrar’s privacy service to conceal its identity and address is indicative of bad faith.
The Complainant requests that the Disputed Domain Names be transferred to it. 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, for this Complaint to succeed in relation to the Disputed Domain Names, the Complainant must prove on a balance of probabilities:
(i) that the Disputed Domain Names are identical or confusingly similar to a trade mark or service mark in which it has rights;
(ii) that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Names; and
(iii) that the Disputed Domain Names have been registered and are being used in bad faith. A. Identical or Confusingly Similar
The Complainant has obtained several trade mark registrations at the Finnish Trade Mark Registry for the term “veikkaus”. It also obtained, for the same trade mark, two Community Trade Mark Registrations. These registrations cover, inter alia, casinos and gaming services. The Complainant also asserts that it has made use of the VEIKKAUS trade mark since the 1940s.
The Panel gives recognition to these registrations and the stated use and, absent any challenge by the Respondent, finds that the Complainant has established rights in the trade mark VEIKKAUS for Policy purposes.
Both the Disputed Domain Names wholly incorporate the registered trade mark VEIKKAUS and in addition, include descriptive matter being, in the first instance, the addition of the Internet country code for Finland being “fi” and in the second instance, the term “jarahapelit”, which is a Finnish term that means “money games”. The Panel is satisfied that these additions do not distinguish the Disputed Domain Names from the registered trade mark. In fact, the additional matter increases the confusing similarity in referring, insofar as the first Disputed Domain Name is concerned, to a country in which the Complainant operates and the Complainant’s earlier Finnish domain name and, with respect to the second Disputed Domain Name, activities that are commonly associated with the industry in which the Complainant operates.
Accordingly, the Panel finds that the Disputed Domain Names are confusingly similar to a trade mark in which the Complainant has rights.
The Complainant has satisfied this Policy requirement. B. Rights or Legitimate Interests
Paragraph 4(a)(ii) of the Policy requires the Complainant to prove a negative, namely that the Respondent lacks rights or legitimate interests in the Disputed Domain Names. This is accomplished as follows:
“Therefore a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such a prima facie case is made, the production shifts to the respondent to come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such appropriate allegations or evidence, the complainant is generally deemed to have satisfied paragraph 4(a)(ii) of the UDRP. If the respondent does come forward with some allegations or evidence of relevant rights or legitimate interests, the panel then weighs all the evidence with the burden of proof always remaining on the complainant.” See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, (“WIPO Overview 2.0”) at paragraph 2.1 in this regard.
The facts of this matter are that the Respondent registered the first Disputed Domain Name in July 2012 and the second in September 2015 (shortly after the dispatch of the Complainant’s cease and desist letter). At that time, the Complainant already owned registered trade marks for VEIKKAUS and had been operational for decades. The websites associated with the Disputed Domain Names, whilst in Finnish, clearly promote betting and gaming services either by the Respondent or third parties, in competition with those offered by the Complainant. On face value therefor, the Disputed Domain Names were adopted and have been used purely to create confusion and attract Internet users to the websites associated with the Disputed Domain Names for profit.
The Panel finds that the Complainant has made out a prima facie case in terms of paragraph 4(a)(ii) of the Policy and that there is a case for the Respondent to answer. However, the Respondent has not filed any answer or come forward with circumstances that indicate that it does have a right or legitimate interest in the Disputed Domain Names.
The Complainant’s contentions therefore stand unchallenged. Accordingly, the Panel finds that the Complainant has succeeded in meeting the burden of proof under this Policy requirement. C. Registered and Used in Bad Faith
As indicated above, the Respondent registered and set up its websites at a time when the Complainant had an established reputation and registrations for its VEIKKAUS trade mark. In fact, the Disputed Domain Name was registered after the Complainant had already sent a cease and desist letter to the Respondent, which, absent any plausible explanation by the Respondent, demonstrates bad faith behavior. Also, the Complainant’s trade mark is for all intents and purposes an invented word, having no meaning to anyone who does not speak the Finnish language. The Respondent’s selection of this trade mark and its use of it in connection with two domain names to promote services in competition with the Complainant, to the same Finnish market in which the Complainant primarily operates, suggests that the Respondent has not been unaware of the Complainant’s rights. Against this backdrop, a finding that there has been deliberate targeting of the Complainant by the Respondent seems difficult to avoid.
The Respondent’s concealment of its identity and address, coupled with the fact that it provides gaming services seemingly in contravention of the Finnish Lotteries Act (in terms of which exclusive rights to provide lotteries and betting games in Finland had been provided to the Complainant) add further to the evidence of a lack of good faith conduct on the part of the Respondent.
The Respondent clearly selected and registered the Disputed Domain Names to reap advantage of the Complainant’s reputation and trade mark and, taking all of the circumstances of this case into account, as well as the fact that the Respondent had an opportunity in this proceeding to demonstrate its rights or legitimate interest, or its good faith conduct, or to challenge the Complainant’s contentions, but elected not to take this up, the Panel finds that the Disputed Domain Names were registered and are being used in bad faith within the meaning of paragraph 4(b)(iv) 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 Names and be transferred to the Complainant.
Charné Le Roux
Sole Panelist
Date: January 25, 2016
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