The Complainant is NetBet Enterprises Ltd. of Pieta, Malta, represented by SafeNames Ltd., United Kingdom of Great Britain and Northern Ireland (“United Kingdom”).
The Respondent is Lijianlin of Beijing, China. 2. The Domain Name and Registrar
The disputed domain name is registered with Xin Net Technology Corp. (the “Registrar”). 3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on November 6, 2018. On November 6, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 7, 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.
On November 7, 2018, the Center sent a communication to the Parties, in English and Chinese, regarding the language of the proceeding. On the same day, the Complainant confirmed its request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding.
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, in English and Chinese, of the Complaint, and the proceeding commenced on November 16, 2018. In accordance with the Rules, paragraph 5, the due date for Response was December 6, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 7, 2018.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on December 20, 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 A. Complainant
The Complainant is a company incorporated in Malta.
The Complainant has, since 2006, been providing online casino and betting services under the trade mark NETBET (the “Trade Mark”).
The Complainant is the owner of registrations in numerous jurisdictions for the Trade Mark, including European Union registration No. 008916314, with a registration date of May 16, 2012. The Complainant is also the owner of numerous domain names comprising the Trade Mark. B. Respondent
The Respondent is an individual apparently with an address in China. C. The Disputed Domain Name
The disputed domain name was registered on April 5, 2018. D. The Website at the Disputed Domain Name
The disputed domain name resolves to a Chinese language online casino and betting website (the “Website”). 5. Parties’ Contentions A. Complainant
The Complainant contends that the disputed domain name is identical or confusingly similar to the Trade Marks, the Respondent has no rights or legitimate interests in respect of the disputed domain name, and the disputed domain name was registered and is being used in bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1 Language of the Proceeding
The language of the Registration Agreements for the disputed domain name is Chinese. Pursuant to the Rules, paragraph 11, in the absence of an agreement between the parties, or unless specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement.
Paragraph 11(a) of the Rules allows the panel to determine the language of the proceeding having regard to all the circumstances. In particular, it is established practice to take paragraphs 10(b) and (c) of the Rules into consideration for the purpose of determining the language of the proceeding, in order to ensure fairness to the parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes. Language requirements should not lead to undue burdens being placed on the parties and undue delay to the proceeding.
The Complainant has requested that the language of the proceeding be English, for the following reasons:
(i) The Respondent has registered several thousand domain names comprising English language words, which demonstrates that the Respondent is at least competent in English; and
(ii) Conducting the proceeding in English would involve unnecessary additional expense and delay.
The Respondent did not file any submissions regarding the language of the proceeding and did not submit any response in this proceeding.
In exercising its discretion to use a language other than that of the Registration Agreement, the Panel has to exercise such discretion judicially in the spirit of fairness and justice to both Parties, taking into account all relevant circumstances of the case, including matters such as the Parties’ ability to understand and use the proposed language, time and costs.
The Panel notes that, although the evidence demonstrates that the Respondent has registered thousands of English language domain names, the Website is a Chinese language website. The Panel finds there is insufficient evidence to suggest the likely possibility that the Respondent is conversant in (as opposed to merely competent in) English. The Panel is however mindful of the need to ensure the proceeding is conducted in a timely and cost effective manner. The Panel has also taken into account the fact the Respondent, having been notified of the proceeding and of the Complainant’s language request, in English and Chinese, has chosen to take no part in this proceeding.
In all the circumstances, the Panel therefore finds it is not foreseeable that the Respondent would be prejudiced, should English be adopted as the language of the proceeding.
Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that the language of the proceeding shall be English. 6.2 Substantive Elements of the Policy
The Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail. A. Identical or Confusingly Similar
The Trade Mark is recognizable within the disputed domain name. The disputed domain name consists of a common, obvious, or intentional misspelling of the Trade Mark (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.9).
The Panel therefore finds that the disputed domain name is confusingly similar to the Trade Mark. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a disputed domain name:
(i) Before any notice to the respondent of the dispute, the respondent’s use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or
(ii) The respondent (as an individual, business, or other organization) has been commonly known by the disputed domain name even if the respondent has acquired no trade mark or service mark rights; or
(iii) The respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.
The Complainant has not authorised, licensed, or permitted the Respondent to register or use the disputed domain name or to use the Trade Mark. The Panel finds on the record that there is therefore a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, and the burden is thus on the Respondent to produce evidence to rebut this presumption.
The Respondent has failed to show that the Respondent has acquired any trade mark rights in respect of the disputed domain name or that the disputed domain name has been used in connection with a bona fide offering of goods or services. To the contrary, the undisputed evidence on the record shows that the disputed domain name has been used in respect of an online casino and betting Website, in direct competition with the gambling products and services offered for many years online by the Complainant under the Trade Mark.
There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name; and there has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name.
The Panel finds that the Respondent has failed to produce any evidence to rebut the Complainant’s prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
In light of the manner of use of the disputed domain name highlighted in Section B. above, the Panel finds that the requisite element of bad faith has been made out, under paragraph 4(b)(iv) of the Policy.
For all the foregoing reasons, the Panel concludes that the disputed domain name has been 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.
Sebastian M.W. Hughes
Sole Panelist
Dated: January 3, 2019
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