The Complainant is Navasard Limited of Limassol, Cyprus, represented by Giorgos Landas LLC, Cyprus.
The Respondent is WhoisGuard Protected, WhoisGuard, Inc. of Panama city, Panama / Alex Bazderov, Pulse of Moscow, Russian Federation. 2. The Domain Name and Registrar
The disputed domain name is registered with NameCheap, Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 23, 2018. On January 23, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 23, 2018, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on January 25, 2018 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 January 25, 2018.
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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on January 26, 2018. In accordance with the Rules, paragraph 5, the due date for Response was February 15, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 16, 2018.
The Center appointed Antony Gold as the sole panelist in this matter on March 2, 2018. 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 company based in Cyprus which provides sports betting services, particularly in Eastern Europe, under the brand 1XBET. The Complainant has registered the following trademarks to protect its trading style;
- European Union Trade Mark: 1XBET (logo), registration number 013914254, registered on February 27, 2015 in Nice classes 35, 41 and 42;
- European Union Trade Mark: 1XBET (word), registration number 014227681, registered on September 29, 2015 in Nice classes 35, 41 and 42.
The trademarks are operated by companies affiliated with the Complainant under the terms of an Intellectual Property Lease agreement.
The disputed domain name was registered on November 23, 2017. It points to a directory page which contains a number of links, in both Russian and Latin script, to third party websites. Under the heading “Ads”, on the central portion of the page, are link descriptors such as “Cruising Bikes”, “Amusement Park Rides sale” and “Beach Cruiser Handlebars”. On the left-hand side of the page, under the heading “Related Links”, there is a separate column of links. The first link under this column is to “Fonbet”. At the foot of the webpage there is a notice that “The Sponsored Listings displayed above are served automatically. Neither Parkingcrew nor the domain name owner maintain any relationship with the advertisers”. 5. Parties’ Contentions A. Complainant
The Complainant provides details of its trademarks for 1XBET, set out above. It says that the disputed domain name is identical to those trademarks.
The Complainant asserts that the Respondent is illegally using the disputed domain name for the purpose of confusing the Internet users into thinking that the disputed domain name is operated under the brand of the Complainant. It says that the link to “Fonbet”, on the directory page to which the disputed domain name points, is of particular significance in that “Fonbet” is the trading name of one of its online competitors in the Russian Federation. Moreover, whilst many of the links on the Respondent’s website change periodically, the link to “Fonbet” is one of three links on the website which remain constant. The Complainant adds that the “sport32” element of the Respondent’s contact email address is the same as the name used for a nascent, and currently non-functioning, Russian betting website it has located through an Internet search.
The Complainant says that the website to which the disputed domain name points does not offer any services other than the provision of links to other websites and that the Respondent does not intend to make any legitimate use of it. The Respondent is not operating in the field of online sports betting but in the business of selling Internet traffic and thereby deriving “pay-per-click” revenue from its website. This does not create a legitimate interest in the disputed domain name; see Lardi Ltd v. Belize Domain WHOIS Service Lt,WIPO Case No. D2010-1437. Moreover, the Respondent is not making any noncommercial or fair use of the disputed domain name.
Finally, the Complainant says that the Respondent registered the disputed domain name in bad faith. In particular, by using the disputed domain name, it has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s mark as to the source, affiliation, and endorsement of the Respondent’s website. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Paragraph 14(b) of the Rules provides that if a party, in the absence of exceptional circumstances, does not comply with a provision of, or requirement under, these Rules, the panel shall draw such inferences from this as it considers appropriate.
Paragraph 4(a) of the Policy requires that the Complainant proves each of the following three elements in order to succeed in its Complaint:
(i) identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) the Respondent has no rights or legitimate interests with respect to the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The Complainant has, though the provision of the details of its registered trademarks, as set out above, established that it has rights in 1XBET.
When considering whether a domain name is identical or confusingly similar to a complainant’s trademark, the generic Top-Level Domain (“gTLD”) component of the domain name (that is “.bid” in the case of the disputed domain name) is disregarded as it is a technical requirement of registration.
The Domain Name System is not case sensitive and the remaining element of the disputed domain name, 1xbet, is identical to the Complainant’s 1XBET trademark. The Panel accordingly finds that the disputed domain name is identical to a trademark in which the Complainant has rights B. Rights or Legitimate Interests
The Policy sets out at paragraph 4(c) examples of circumstances, without limitation, by which a respondent may demonstrate rights or legitimate interests in a disputed domain name, namely that:
(i) before any notice of the dispute, it can show 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) it can show that it has been commonly known by the domain name, even if no trademark or service mark rights have been acquired; or
(iii) it can demonstrate 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.
Dealing with these grounds in reverse order, the use of the disputed domain name to point to a directory page containing pay-per-click links is plainly not noncommercial in character. Nor is there any evidence that might suggest that the Respondent is commonly known by the disputed domain name. As to whether the use to which the disputed domain name is being put might amount to a bona fide offering of goods and services, the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) explains at section 2.9 that “Applying UDRP paragraph 4(c), panels have found that the use of a domain name to host a parked page comprising PPC links does not represent a bona fide offering where such links compete with or capitalize on the reputation and goodwill of the complainant’s mark or otherwise mislead Internet users”. The inclusion within the Respondent’s directory page of a prominent link to the Complainant’s competitor, Fonbet, is, due to the identicality of the disputed domain name with the Complainant’s trademark, apt to redirect some Internet users who were seeking the Complainant, towards its competitor. The website does not therefore comprise a bona fide offering of goods and services.
How Paragraph 4(c) of the Policy is usually applied in practice is explained in, section 2.1 of the WIPO Overview 3.0; “…where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element.”
As outlined above, none of the grounds set out at 4(c) of the Policy appear applicable to the current facts. The Complainant has made out a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name and the burden of production therefore shifts to the Respondent to show that it does have such rights or interests. As the Respondent has failed to respond to the Complaint, it has not satisfied this burden.
Accordingly, the Panel finds that the Respondent does not have any rights or legitimate interests with respect to the disputed domain name. C. Registered and Used in Bad Faith
As at the time of registration of the disputed domain name, the Complainant had been established for over two and a half years. It has not produced any specific evidence to support its claim that its 1XBET brand is “one of the most recognized online sporting brands in the territory of Eastern Europe”. However, its trademark is distinctive. The directory page to which the disputed domain name points features a link to one of the Complainant’s competitors in the Russian Federation and the name used by the Respondent’s in its email address is the same as that of a part-constructed Russian gambling website. Taking all these factors into account, it is, on a balance of probabilities, appreciably more likely than not, that the disputed domain name was registered by the Respondent as a result of its awareness of the Complainant’s reputation and its trademarks and in order to take advantage of them.
Whilst the use of a domain name to point to parking pages hosting pay-per-click sponsored links is not inherently objectionable, it has been well established in previous decisions under the Policy that such conduct can constitute bad faith use if the combination of the characteristics of a domain name and the nature of the links on the website to which it points are intended to mislead Internet users. See, for example, Yahoo! Inc. v. Hildegard Gruener,WIPO Case No. D2016-2491, in which the panel explained that “the use, to which the disputed domain names are put, namely parking pages featuring sponsored advertising links, is calculated to attract Internet users to the site in the mistaken belief that they are visiting a site of or associated with the Complainant. The object has to be commercial gain, namely pay-per-click or referral revenue achieved through the visitors to the site clicking on the sponsored advertising links. Even if visitors arriving at the websites to which the disputed domain name resolve become aware that these websites are not such of the Complainant, the operators of these websites will nonetheless have achieved commercial gain in the form of a business opportunity, namely the possibility that a proportion of those visitors will click on the sponsored links”.
The facts point to the Respondent having registered the disputed domain name in circumstances similar to those outlined in Yahoo! Inc. v. Hildegard Gruener (supra). Such conduct falls within the example of bad faith registration and use set out at paragraph 4(b)(iv) of the Policy namely that, by using the disputed domain name, the Respondent has intentionally attempting to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of that website.
Lastly, the purported disclaimer at the foot of the Respondent’s website does not change the position; as explained at section 3.5 of the WIPO Overview 3.0; “Particularly with respect to “automatically” generated pay-per-click links, panels have held that a respondent cannot disclaim responsibility for content appearing on the website associated with its domain name (nor would such links ipso facto vest the respondent with rights or legitimate interests)”.
The Panel accordingly finds that the disputed domain name was both 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 disputed domain name be transferred to the Complainant.
Antony Gold
Sole Panelist
Date: March 14, 2018
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