Complainant is Cube Limited, United Kingdom, represented by Farrer & Co, United Kingdom.
Respondent is WhoisGuard Protected, WhoisGuard, Inc., Panama / Hienz Zabel, Indonesia. 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 May 24, 2019. On May 24, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On the same date, 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 Complainant on May 31, 2019, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on June 3, 2019.
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 Respondent of the Complaint, and the proceedings commenced on June 6, 2019. In accordance with the Rules, paragraph 5, the due date for Response was June 26, 2019. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on June 27, 2019.
The Center appointed Haig Oghigian as the sole panelist in this matter on July 10, 2019. 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
Based on the record, which consists of the Complaint and its attachments, and case documents received from WIPO, the Panel finds the following are uncontested:
- Complainant operates an online gambling service from its website “www.188BET.com” since 2006.
- Complainant is the owner of various trademarks, including 188, 188BET and 188BET with the “188” in white letters within an asymmetrical orange pentagon and “BET” in grey letters. Most of these have been registered since 2009 and remain valid.
- Complainant has invested in creating a well-recognized brand in the online gambling industry.
- Respondent operates a competing online gambling site through the disputed domain name , which was registered on or about November 18, 2017. 5. Parties’ Contentions A. Complainant
Complainant makes assertions regarding the three elements of the Policy. Complainant, inter alia, asserts that Respondent is wrongfully using Complainant’s marks and property to operate a competing online gambling website, trading off the goodwill of its marks and reputation, thereby enriching itself to Complainant’s detriment. Complainant indicates that it has not licensed or otherwise authorized Respondent to use its names, logos or designs in any way. Complainant seeks the transfer of the disputed domain name from Respondent. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The disputed domain name incorporates the Complainant’s mark 188BET in its entirety. The simple addition of “4d” to the end of Complainant’s well-known mark in the online gambling industry, does not prevent a finding of confusing similarity under the first element. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.8. B. Rights or Legitimate Interests
The Panel finds it impossible that Respondent independently came up with this confusingly similar mark and decided to use it in the Internet gambling market, some 12 years after Complainant first used it and liberally marketed it in the online game industry. Complainant claims it has not licensed the name/rights to Respondent in any way, and we find no evidence to the contrary. Accordingly, under the precepts of Policy, paragraph 4(a)(ii); Rules, paragraph 3(b)(ix)(2), bwin Services AG v. shenoyan,WIPO Case No. D2011-0901, and Sportswear Company S.P.A. v. Tang Hong,WIPO Case No. D2014-1875, this Panel finds Respondent has no rights or legitimate interests in registering or using the disputed domain name. C. Registered and Used in Bad Faith
As indicated above, Respondent’s disputed domain name is confusingly similar to Complainant’s domain name . Further Respondent is operating a webpage using Complainant’s registered and famous trademarks to conduct a competing online gambling website for its own commercial gain and to the detriment of Complainant. Respondent’s registration of the disputed domain name occurred some 12 years after Complainant’s initial use and after years of Complainant establishing its brand in the online gambling industry.
Accordingly, the Panel finds this sufficient to establish registration and use in bad faith, as under the precepts set forth by Policy, paragraphs 4(a)(iii), 4(b); Rules, paragraph 3(b)(ix)(3), WIPO Overview 3.0, section 3.1.4 and cases including Microgaming Software Systems Limited v. E Net Marketing Ltd.,WIPO Case No. D2007-0013, Educational Testing Services v. ETS ETS,WIPO Case No. D2009-0363, Compagnie Générale des Etablissements Michelin (Michelin) v. BMtexnologiya MMC, Tural Malikov,WIPO Case No. D2010-2150, Sixt AG v. DSA QWE Inc.,WIPO Case No. D2013-0504.
The Panel finds this particularly persuasive considering that an individual visiting Respondent’s website, finds a web banner at the upper left portion of the webpage showing “188BET” with the “188” in an orange asymmetric pentagon and “BET" in grey characters, which appears identical to Complainant’s registered mark. The “4D” that follows is in a large orange script appearing separate from the other mark. This gives the appearance that the website is affiliated with Complainant’s brand and website through confusing similarity.
The Panel finds that the disputed domain name was 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 Complainant.
Haig Oghigian
Sole Panelist
Date: July 19, 2019
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