The Complainant is Ritzio Purchase Limited of Nicosia, Cyprus, Dareos Inc. of Majuro, Republic of Marshall Islands, and Dareos Ltd. of Nicosia, Cyprus, represented by Mapa Trademarks SL, Spain.
The Respondent is Registration Private, Domains By Proxy, LLC of Scottsdale, Arizona, United States of America / Natalia Zelenina, Kiev, Ukraine. 2. The Domain Names and Registrars
The disputed domain names , , , , , and are registered with Moniker Online Services, LLC. The disputed domain name is registered with GoD, LLC. The disputed domain names and are registered with Key-Systems GmbH dba . 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 6, 2018. On April 6, 2018, the Center transmitted by email to the Registrars a request for registrar verification in connection with the disputed domain names. On April 9, 10, 17, 18, and 19, 2018, the Registrars transmitted by email to the Center their verification responses disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on April 20, 2018 providing the registrant and contact information disclosed by the Registrars, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on April 20, 2018.
The Center verified that the Complaint together with the amended 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 April 24, 2018. In accordance with the Rules, paragraph 5, the due date for Response was May 14, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 29, 2018.
The Center appointed Dr. Clive N.A. Trotman as the sole panelist in this matter on June 5, 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 Ritzio Purchase Limited (“Ritzio”) has been in the business of gaming, casinos and related activities including Internet gaming since about 1992. Most of its clientele are Russian. It is in the process of transferring assets including trademarks to Dareos Inc., and Dareos Ltd., which are partners or umbrella companies. The Complainant refers in places to the Ritzio Group and it will be appropriate to refer to the Complainant in the singular. The Complainant had revenues of about USD 5.5 billion between 2006 and 2010 and employed 2000 people.
The Complainant owns some 47 trademarks for ВУЛКАН in Russian and its English translations VULKAN and VOLCANO, of which the following are selected by the Panel as representative for the purposes of this proceeding:
ВУЛКАН, design mark, Russian Federation, registered January 28, 2008, registration number 342290, in classes 3, 9, 16, 18, 21, 24, 26, 26, 27, 28, 30, 32, 33, 34, 35, 36, 37, 38, 39, 41, 42, 43, 45 (registered to Ritzio but stated by the Complainant to be now owned by Dareos Inc.);
VULKAN, international trademark, registered August 11, 2008, registration number 984297, in classes 9, 16, 21, 28, 32, 35, 38, 39, 41, 42, 43, 45 (registered to Dareos Ltd.);
VOLCANO, international trademark, registered August 11, 2008, registration number 989103, in classes 9, 16, 21, 25, 28, 35, 38, 39, 41, 42, 43, 45 (registered to Dareos Ltd.);
V, figurative in colours white, orange, red, blue and dark-blue, international trademark, registered January 26, 2007, registration number 949162, in classes 3, 9, 16, 18, 21, 24, 25, 26, 27, 28, 30, 32, 33, 24, 35, 36, 37, 38, 39, 41, 42, 43, 45 (registered to Dareos Ltd.).
The Respondent has not provided any background information except for the address of Natalia Zelenina in Kiev, Ukraine, provided to the respective Registrars for the purposes of registration of the disputed domain names. These were registered on the following dates:
registered on February 27, 2013
registered on September 12, 2017
registered on November 27, 2017
registered on November 27, 2017
registered on November 27, 2017
registered on June 20, 2017
registered on September 12, 2017
registered on June 14, 2016
registered on April 22, 2015
registered on September 13, 2016
Each of the disputed domain names resolves to a similar Russian-language gaming site, in some instances (, and ) by redirection to “”. 5. Parties’ Contentions A. Complainant
The Complainant’s extensive contentions include the following.
The Complainant requests that the disputes in respect of the ten disputed domain names be consolidated, on grounds including: all resolved websites are identical; all websites are marked “Internet gaming club “Vulcan” © 2018. Club Vulcan - online slot machines” and name the gaming operator to be “FABISONY LIMITED, Karava 2, Ergates, 2643 Nicosia, Cyprus”; the common registration dates of certain disputed domain names, the common registrant name Zelenina Natalia, and the common use of Privacy Services; the common support contact telephone and email address of the websites resolved to; the common login and password facility to gain access to all the websites.
The Complainant asserts rights in the trademarks ВУЛКАН, VULKAN and VOLCANO and has produced copies of a number of registration documents including for those listed in section 4 above.
The Complainant contends that each disputed domain name is confusingly similar to one of its trademarks. The disputed domain names are in part virtually identical to the English translation of its trademarks and sound identical to them. The disputed domain names incorporate various generic terms such as “casino”, which add to confusing similarity because of the Complainant’s association with casinos and gaming. Some of the disputed domain names contain the wording of a trademark, or a variation on a trademark, or contain “vlk” as an acronym for VULKAN, but all refer to the Complainant’s business and trademarks with intention to deceive users.
The Complainant owns a registered trademark for V, figurative in certain colours, which it says is used particularly on some of its gaming halls, and says the disputed domain names containing “vlk” also incorporate the trademark V.
The Complainant further contends that the Respondent does not have rights or legitimate interests in respect of the disputed domain names. The Respondent has no authorisation to use the Complainant’s trademarks. The Respondent has no legitimate interest relating to the Complainant’s trademarks, has never been commonly known by the disputed domain names and is not using them noncommercially.
The Complainant further contends that the disputed domain names were registered and are being used in bad faith. They are being used for full-function online casinos and proclaim that winners have won millions of Russian rubles. By using the Complainant’s trademarks in the disputed domain names, the Respondent has intended to attract Internet users by confusion for commercial gain.
The Complainant says furthermore in respect of bad faith that on pages of the websites to which the disputed domain names resolve, Internet visitors are shown unauthorised copies of the Complainant’s trademark, and a false copyright claim by the Respondent in the form “© 2018 Club Vulcan”. There is also the offer of a plug-in application to bypass any block instituted by an Internet service provider against particular websites. The Complainant says the Respondent’s use of a privacy service to conceal its identity is a factor in bad faith.
The Complainant has cited and quoted from a number of previous decisions under the Policy, including cases decided in favour of this Complainant.
The Complainant requests the transfer of the disputed domain names. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identity of the Respondent
The registrant name and technical contact name in respect of according to the WhoIs is Zelenina Natalia.
All of the other disputed domain names, namely , , , , , , , and , have the registrant name reversed, i.e., Natalia Zelenina, but with the same street address, street number and post code in Kiev as for the registrant of . This second group has a common registrant telephone number and the technical organisation name is Moniker Online Services, LLC, which both differ from those for .
The Notification of Complaint and Commencement of Administrative Proceeding was sent to Natalia Zelenina; M; Fabisony Ltd.; Registration Private; and to Moniker Privacy Services, at all available email addresses in respect of each disputed domain name. The Written Notice of the dispute was sent by courier to Natalia Zelenina; M; Fabisony Ltd.; Registration Private; and to Moniker Privacy Services, in accordance with the physical contact details available. The package addressed to Natalia Zelenina was signed for by “Zelenina AAB244962” on May 2, 2018. The package addressed to Moniker Privacy Services was apparently undelivered and permission to destroy was sought by the courier on April 30, 2018. Fax copies of the Written Notice of the dispute sent to Moniker Online Services LLC could not be delivered.
The Center also sent a notice through the message box of the website “www./feedback” stating that the Complaint in respect of all the disputed domain names had been filed against Natalia Zelenina and notifying the due date for a Response.
Neither Natalia Zelenina nor Zelenina Natalia of the same address has contested being a Respondent and in all the circumstances the Panel considers these to be alternative expressions of the name of the same person.
The Panel is satisfied that the Center has fulfilled its obligations to attempt to contact the Respondent in service of the Complaint in accordance with paragraph 2 of the Rules.
The Panel is satisfied that it is appropriate for the multiple domain name disputes in this case to be consolidated (paragraph 10(e) of the Rules: “A Panel shall decide a request by a Party to consolidate multiple domain name disputes in accordance with the Policy and these Rules”).
Paragraph 4(a) of the Policy states that the Respondent is required to submit to a mandatory administrative proceeding in the event that the Complainant asserts to the applicable dispute-resolution provider, in compliance with the Rules, that:
“(i) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) you have no rights or legitimate interests in respect of the domain name; and
(iii) your domain name has been registered and is being used in bad faith”.
The Complainant has made the relevant assertions as required by the Policy. The dispute is properly within the scope of the Policy and the Panel has jurisdiction to decide the dispute. B. Identical or Confusingly Similar
The disputed domain names , , , , and all feature the word “vulkan”, followed by a generic word, a string of letters, or both, which in each instance the Panel finds to be non-distinguishing. The generic Top-Level Domain in each case may be disregarded in the determination of confusing similarity. The Panel finds each of these six domain names to be confusingly similar to the Complainant’s trademark VULKAN under paragraph 4(a)(i) of the Policy.
The disputed domain name comprises “wulkan” and “slots”. It is common knowledge that in some languages the letter “w” is pronounced “v”, and in some languages is referred to as double-v. “Wulkan” is Polish for “volcano”. The word “slots” in the context alludes to gambling slot machines and is found by the Panel to be non-distinguishing. The Panel finds this disputed domain name to be confusingly similar, especially phonetically, to the Complainant’s trademarks VULKAN and VOLCANO.
The Panel finds the disputed domain name , comprising “volcano” and the generic word “club”, to be confusingly similar to the Complainant’s trademark VOLCANO.
The disputed domain names and comprise “vlk” and a generic word or abbreviation. Confusing similarity is generally assessed on the basis of an objective comparison of a domain name with a trademark. As reviewed in the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) at section 1.15, on the question of whether the website associated with a domain name is relevant in determining confusing similarity, “In some instances, panels have however taken note of the content of the website associated with a domain name to confirm confusing similarity whereby it appears prima facie that the respondent seeks to target a trademark through the disputed domain name”. In the present instance the contents of the respective websites to which all the disputed domain names have resolved, directly or indirectly, are to all intents and purposes identical. To that extent it is clear to the Panel, on balance, that the disputed domain names and are intended to target the Complainant in an identical manner to the other eight presently disputed domain names, and furthermore, that the Respondent has chosen to incorporate “vlk” into them in the expectation they will be confused with the Complainant’s trademark VULKAN.
In respect of all the disputed domain names, the Panel finds confusing similarity with a trademark of the Complainant under paragraph 4(a)(i) of the Policy. C. Rights or Legitimate Interests
The Complainant states a prima facie case to the effect that the Respondent does not have rights or legitimate interests in respect of the disputed domain names and has not been granted any licence or permission to use the Complainant’s trademarks.
Paragraph 4(c) of the Policy provides for the Respondent to contest the Complainant’s prima facie case under paragraph 4(a)(ii) of the Policy and to establish rights or legitimate interests in each disputed domain name by demonstrating, without limitation:
“(i) before any notice to you 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 (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 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”.
The Respondent has not contested the Complaint and has not asserted any rights or legitimate interests in the disputed domain name with reference to paragraphs 4(c)(i), (ii) or (iii) of the Policy, or otherwise.
Screen captures of the websites to which the disputed domain names refer show them all to have resolved to gaming sites with pages promoting a wide variety of gaming activities including tournaments, jackpots, game room, lottery, gifts, and notably a page is named “Cashbox” with facilities for the use of MasterCard or Visa, which are stated to be preferred, and other payment options. The disputed domain names are unquestionably in use in connection with an offering of goods or services. Since they rely on domain names that have been found to be confusingly similar to and which appear to target the Complainant’s trademarks, such use is excluded from being bona fide in the terms of paragraph 4(c)(i) of the Policy.
In the terms of paragraph 4(c)(ii) of the Policy the Respondent has produced no evidence of having been commonly known as an individual or business by any of the disputed domain names. The use of the disputed domain names is clearly commercial and cannot be noncommercial under paragraph 4(c)(iii) of the Policy.
The Panel finds that the Respondent does not have rights or legitimate interests in any of the disputed domain names within the meaning of paragraph 4(a)(ii) of the Policy. D. Registered and Used in Bad Faith
The Complainant must prove under paragraph 4(a)(iii) of the Policy that the disputed domain names have been registered and are being used in bad faith. Paragraph 4(b) of the Policy lists four alternative circumstances that shall be evidence of the registration and use of a domain name in bad faith by a respondent, namely:
“(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(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 website or location or of a product or service on your website or location”.
The provisions of paragraph 4(b) of the Policy are without limitation and bad faith may be found alternatively by the Panel. The Complainant has based its Complaint principally on paragraph 4(b)(iv) of the Policy in respect of bad faith.
The Respondent projects through its websites the impression of a comprehensive online gaming operation offering numerous different types of games through which punters may gamble. Facilities are provided for users to pay by credit card and to sign up with a username and password in anticipation of return visits. The ten disputed domain names resolve, directly or indirectly, to ten apparently identical clones of the Respondent’s website, consistent with a determination to gather as much relevant Internet traffic as possible. Whilst the Complainant has chosen not to produce a screen capture of its own website, and a comparison of its features with those of the Respondent’s websites is not possible, it is noted that the Respondent’s websites feature a complex logo based upon the word ВУЛКАН (Russian equivalent of VULKAN) in which the letter “Л” (equivalent to “L”) is highly distorted and stylised in the nature of lightning, surmounted by a flash and stars, the whole under a sky-like dome. This logo as it appears on the Respondent’s website is to all intents and purposes identical to at least five of the Complainant’s trademarks, three of which are registered in Ukraine, being the Respondent’s stated domicile.
The Panel finds on the evidence, and on the balance of probabilities, that the Respondent has intended to create confusion between the disputed domain names and the Complainant’s trademarks in order to cause Internet visitors to believe they will arrive or have arrived at a website belonging to the Complainant, and the Respondent has done so for commercial gain. It is of no consequence if the disputed domain names and , when viewed as domain names prior to a visit, do not immediately evoke the name or trademark of the Complainant. The issue is that on arrival at the corresponding website for whatever reason, the visitor is clearly expected to accept the combination of cues presented, such as the reproduction of the Complainant’s distinctive trademarked logo and the assertion at the bottom of the landing and other pages “Internet gaming club ‘Vulcan’ © 2018 Club Vulcan - online slot machines”, as convincing evidence that the proprietor of the business is the Complainant, which it is not. The Panel does not distinguish between “vulkan” and its English spelling “vulcan”.
On the totality of the evidence, the Panel finds the disputed domain names to have been used in bad faith in the terms of paragraph 4(b)(iv) of the Policy, and to have been registered for the same bad faith purpose. Accordingly the Panel finds for the Complainant under paragraph 4(a)(iii) of the Policy.
There are many potentially legitimate reasons why a registrant of a domain name may wish to use a privacy service. In this instance, since the Respondent apparently signed for the couriered Written Notice of the dispute, evidence of a scheme to avoid service of the Complaint is lacking.
The Panel does not find it necessary to consider the Respondent’s offer of an application to bypass blocked websites in this instance. 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.
Dr. Clive N.A. Trotman
Sole Panelist
Date: June 12, 2018
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