The Complainant is Gamesys Limited of London, United Kingdom, represented by Hogan Lovells International LLP, United Kingdom of Great Britain and Northern Ireland (“United Kingdom”).
The Respondent is Andrew Thomasson of Leesport, Pennsylvania, United States of America (“USA”). 2. The Domain Name and Registrar
The disputed domain name (“Disputed Domain Name”) is registered with PDR Ltd doing business as PublicDomainR (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 14, 2018. On June 14, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 16, 2018, 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 June 21, 2018. In accordance with the Rules, paragraph 5, the due date for Response was July 11, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 13, 2018.
The Center appointed Philip N. Argy as the sole panellist in this matter on July 25, 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. All other administrative requirements appear to have been satisfied. 4. Factual Background
The following facts, taken from the Complaint, remain uncontested.
The Complainant and its affiliates have registered GAMESYS and GAMESYS AFFILIATES as trademarks in multiple countries including the UK and USA.
Since 2001 the Complainant has also developed substantial reputation and goodwill in the Gamesys brand by widespread promotion in multiple countries including the UK and USA. As a consequence, the public associates the GAMESYS trademarks with the Complainant and the Complainant thereby has acquired common law trademark rights in addition to its statutory rights in multiple jurisdictions.
The Disputed Domain Name was registered on April 20, 2018. 5. Parties’ Contentions A. Complainant
The Disputed Domain Name incorporates the Complainant’s GAMESYS mark, followed by a hyphen, followed by the universally recognized geographical designator UK for the United Kingdom. There is nothing in the Disputed Domain Name to differentiate it from the Complainant’s trademark GAMESYS. Neither the geographical designator does so nor the hyphen nor the “.com” Top-Level Domain. Indeed the addition of the geographical designator simply reinforces a consumer’s assumption that the registrant of the Disputed Domain Name is the Complainant or has some association with the Complainant.
The Respondent does not appear to be the registrant of any trademarks resembling GAMESYS, nor associated with any business of that name or any similar name. Nor has the Complainant authorised the Respondent to use its trademark or name in any way.
The Disputed Domain Name does not resolve to any website but it is the subject of an MX record which is being used to send emails which include “@” to employees and affiliates of the Complainant. Since the Disputed Domain Name appears designed to deceive recipients of emails from that domain name into making unnecessary payments, the requirements of paragraph 4(c)(i) of the Policy are not met. Nor can phishing be regarded as a bona fide offering of goods or services. The Complainant also contends that the Respondent must have been aware of the Complainant and its trademarks based on the high profile nature of the brand amongst the gaming community, the targeted nature of the spear phishing engaged in, and the low probability that a rudimentary search would not have revealed the reputation of the GAMESYS trademarks.
The Complainant cites Pfizer Inc v. Michael Chucks,WIPO Case No. D2014-0887 in support of the proposition that use of a domain name for the purposes of conducting a fraudulent phishing scheme constitutes bad faith under the Policy.
The Complainant also seeks to invoke subparagraphs 4(b)(iii) and (iv) of the Policy. As to 4(b)(iii), the Complainant notes that the Respondent has registered 76 domain names, 72 of which were registered in the same month as the Disputed Domain Name, take advantage of third party trade mark rights, and cite the same email contact as the Respondent in the case of the Disputed Domain Name. As to (iv), the Complainant submits that by using the Disputed Domain Name for email phishing he has attempted to attract for commercial gain users to an online location for fraudulent purposes. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
As the Complainant bears the onus of proving each element of the Policy, the failure of the Respondent to reply to the Complaint cannot result in an automatic finding in favour of the Complainant. The Panel must make positive findings in favour of the Complainant on each of the grounds of the Policy on which it relies in order for the Complainant to succeed. The three grounds of the Policy which the Complainant must make out on the balance of probabilities are: that the Disputed Domain Name is identical or confusingly similar to a trademark in which it has rights, that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name, and that the Disputed Domain Name was registered and is being used in bad faith.
Having considered the Complainant’s submissions and the extensive unchallenged evidence filed in support of those submissions, the Panel makes findings as follows: A. Identical or Confusingly Similar
The Disputed Domain Name comprises the Complainant’s registered trademark GAMESYS followed by the country abbreviation for the United Kingdom, “UK” suffixed by the “.com” TLD. It is in all material respects identical to or, at best for the Respondent, confusingly similar to, the GAMESYS trademarks registered in the name of the Complainant (including in both UK and USA), and the Panel so finds. B. Rights or Legitimate Interests
In the absence of a Response, it is hard for the Panel to discern how the Respondent, as an individual apparently residing in Pennsylvania in the USA, could have any rights or legitimate interests in respect of the Disputed Domain Name, as it connotes a business operating in the United Kingdom. He asserts none, and the Complainant has not authorised him to use its trademark.
Accordingly, the Panel is satisfied that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name and so finds. C. Registered and Used in Bad Faith
The clear evidence is that the Disputed Domain Name is being used to send fraudulent “spear phishing” emails, that is to say, targeted emails to employees or associates of the Complainant, in an attempt to steal money from the Complainant.
Whilst the Panel is not empowered to make findings of criminality, the Panel is satisfied beyond doubt that the Disputed Domain Name is being used in bad faith and was most likely registered for that purpose. In any event, the Panel accepts the Complainant’s contentions that subparagraphs 4(b)(iii and (iv) of the Policy are applicable to the Respondent’s conduct. 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.
Philip N. Argy
Sole Panelist
Date: August 7, 2018
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