The Complainants are Dareos Ltd., Cyprus, (the “First Complainant”) and Dareos Inc., Marshall Islands, (the “Second Complainant”), represented by Mapa Trademarks, Spain.
The Respondents are Evgeniy Khlintsev, Russian Federation/Ruslan Belokrynytskyi, Ukraine/Vasja Belok, Private Person, Ukraine/Tamara Dolotova, Private Person, Ukraine/Makar Petrenko, Russian Federation. 2. The Domain Names and Registrars
The disputed domain names The disputed domain names The disputed domain names The three registrars above are jointly referred to in this decision as the “Registrars”. 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 1, 2020. On July 1, 2020, the Center transmitted by email to the Registrars a request for registrar verification in connection with the disputed domain names. On July 2, 2020, the three 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 July 20, 2020 providing the registrant and contact information disclosed by the Registrars, and inviting the Complainant to submit an amendment to the Complaint. On the same date, the Center sent the language of proceeding email in English and in Russian to the Parties and invited the Complainant to respond by July 23, 2020 and the Respondent to comment on the Complainant’s response by July 25, 2020. On July 23, 2020, the Complainant filed an amended Complaint and a request for English to be the language of the proceeding. The Respondent did not file any comments on this request of the Complainant. 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 August 5, 2020. In accordance with the Rules, paragraph 5, the due date for Response was August 25, 2020. The Respondents did not submit any response. Accordingly, the Center notified the Respondents’ default on August 26, 2020. The Center appointed Assen Alexiev as the sole panelist in this matter on September 7, 2020. 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 First Complainant is the owner of the following trademark registrations: - the International Trademark ВУЛКАН (transliterated in the Latin alphabet as “VULKAN”) with registration No. 791038, registered on September 3, 2002 for services in International Class 41; - the International Trademark ВУЛКАН (transliterated in the Latin alphabet as “VULKAN”) with registration No. 977713, registered on August 12, 2008 for goods and services in International Classes 3, 9, 16, 18, 21, 24, 25, 26, 27, 28, 30, 32, 33, 34, 35, 36, 37, 38, 39, 41, 42, 43, and 45; and - the International Trademark VULKAN with registration No. 984297, registered on August 11, 2008 for goods and services in International Classes 9, 16, 21, 28, 32, 35, 38, 39, 41, 42, 43, and 45. The Second Complainant is the owner of the following trademark registrations: - the Russian Federation trademark ВУЛКАН (transliterated in the Latin alphabet as “VULKAN”) with registration No. 342290, registered on January 28, 2008 for goods and services in International Classes 3, 9, 16, 18, 21, 24, 25, 26, 27, 28, 30, 32, 33, 34, 35, 36, 37, 38, 39, 41, 42, 43, and 45; and - the Russian Federation trademark VULKAN with registration No. 353692, registered on June 25, 2008 for goods and services in International Classes 9, 16, 21, 28, 32, 35, 38, 39, 41, 42, 43, and 45. All the above trademark registrations are jointly referred to in this decision as the “VULKAN trademark”. The company Ritzio Purchase Limited is a licensee of the Complainants in respect of the VULKAN trademark. Since 1992 it has provided gaming, casino and entertainment products and services, such as gaming halls, games of chance, interactive real-money games through a computer network, and other related products and services under the VULKAN trademark. Ritzio Purchase Limited is a leading gaming operator with more than 2,000 employees, more than 230 Вулкан or Vulkan branded gaming clubs and more than 6,300 gaming machines deployed throughout Europe. The company MatchBet LLC, registered in the Russian Federation, is also a licensee of the VULKAN trademark and has provided online betting services through its website at ”vulkanbet.ru” since 2016. The Respondent Evgeniy Khlintsev is the registrant of the disputed domain names The Respondent Vasja Belok, Private Person is the registrant of the disputed domain name The Respondent Tamara Dolotova, Private Person, is the registrant of the disputed domain name The Respondent Makar Petrenko is the registrant of the disputed domain names The Respondent Ruslan Belokrynytskyi is the registrant of the disputed domain name At the time of filing of the Complaint, all disputed domain names resolved to similar websites operating as online casinos under the brand ВУЛКАН or VULKAN. 5. Parties’ Contentions A. Complainant The Complainants claim that the disputed domain names are confusingly similar to the VULKAN trademark, as most of them include the word element “vulkan”, which is identical to the word element of the trademark and to its Latin transliteration. According to the Complainants, the addition of the numbers “12” and “13” in the disputed domain names According to the Complainants, the Respondents have no rights or legitimate interests in respect of the disputed domain names, as they are not known under them and have not been licensed to use the VULKAN trademark, whose use was commenced more than 20 years before the registration of the disputed domain names. The Respondents are not carrying out a legitimate business under the VULKAN trademark and are not using the disputed domain names in connection with a bona fide offering of goods or services. According to the Complainants, the Respondents have registered and are using the disputed domain names in bad faith in order to intentionally attract, for commercial gain, Internet users to the Respondents’ websites by creating a likelihood of confusion with the Complainants’ VULKAN trademark. The websites at the disputed domain names copy the look and feel of the Complainants’ gaming clubs, incorporate the VULKAN trademark and provide online gaming services that are competitive to those offered under authorization by the Complainants and thus attract consumers interested in the Complainant’s products and services. The Complainants also note that the Respondents have concealed their identity using privacy services. B. Respondent The Respondents did not reply to the Complainants’ contentions. 6. Discussion and Findings 6.1. Procedural issue – Language of the proceeding According to the information provided by the Registrar REG.RU LLC, the language of the Registration Agreement for the disputed domain names The Complainants request that the language of the proceedings be English. They submit that the Respondents understand English, and submit evidence that the websites at all of the disputed domains indicate that they are all owned and operated by a company registered in Malta, where English is an official language. The language of registration agreements for the other five disputed domain names is English. The Complainants also state that they not use Russian, and submit that the proceeding will be delayed if conducted in this language. The Center has sent all its communications to the Respondent in both English and Russian, and has invited the Respondents to express their views on the language of the proceeding. The Respondents have not submitted a Response or any objections to the Complainants’ request that the proceedings be held in English. The above satisfies the Panel that the Respondents would not be disadvantaged if the language of the proceeding is English, and that using the English language in this proceeding would be fair and efficient. Therefore, in exercise of its powers under paragraph 11 of the Rules, the Panel decides that the language of this administrative proceeding will be English. 6.2. Procedural issue – Consolidation of proceedings and consolidation of Complainants The Complainants request the consolidation of the disputes in respect of all of the disputed domain names in the present proceeding. They submit that all the disputed domain names are under common control and are effectively owned by the company Crystal Investments Limited, registered in Malta. The Complainants point out that the websites at all of the disputed domain names have identical design and content, refer to the same social media profiles, and indicate the same contact details. The Complainants also request consolidation of the Complainants with the arguments that the two of them are owners of the VULKAN trademark and have common legal and business interests that are negatively affected in a similar fashion by the Respondents’ conduct, so they have a specific common grievance against the Respondents. The Center has discharged its duties to notify each of the persons listed as registrants of the disputed domain names. None of these persons has submitted a Response in this proceeding or denied the requests and statements made by the Complainants, including those related to the consolidation of the disputes in respect of all of the disputed domain names. Paragraph 10(e) of the Rules grants a panel the power to consolidate multiple domain name disputes, and paragraph 3(c) of the Rules provides that a complaint may relate to more than one domain name, provided that the domain names are registered by the same domain-name holder. As discussed in section 4.11.2 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), where a complaint is filed against multiple respondents, panels look at whether the domain names or corresponding websites are subject to common control, and whether the consolidation would be fair and equitable to all parties. Procedural efficiency would also underpin panel consideration of such a consolidation scenario. Previous UDRP panels have considered a range of factors, typically present in some combination, as useful to determining whether such consolidation is appropriate, such as similarities in the registrants’ contact information, similarities in the content or layout of websites corresponding to the disputed domain names, any naming patterns in the disputed domain names, evidence of respondent affiliation with respect to the ability to control the disputed domain names, or other arguments made by the complainant. The Panel is satisfied that the Complainant has shown good reasons why the consolidation of the disputes related to the disputed domain names in a single proceeding is justified and appropriate in the circumstances. The evidence submitted by the Complainants shows that the websites at all of the disputed domain names are almost identical in design and content and share the same contact details. The disputed domain names share the same naming pattern – a combination of the words “vulkan” and “slot” or “slots”, with the addition of non-distinctive elements such as a hyphen or a number. This collectively satisfies the Panel that it is more likely than not that all of the disputed domain names are under common control. The second procedural issue here is the consolidation of multiple Complainants in a single Complaint. The Policy and the Rules do not directly regulate this issue. As discussed in section 4.11.1 of the WIPO Overview 3.0, in assessing whether a complaint filed by multiple complainants may be brought against a single respondent, panels look at whether the complainants have a specific common grievance against the respondent or the respondent has engaged in common conduct that has affected the complainants in a similar fashion, and whether it would be equitable and procedurally efficient to permit the consolidation. The Complainants have shown that each of them is the owner of various registrations of the VULKAN trademark, and they have brought forward common grievances against the Respondents in the Complaint. None of the listed registrants of the disputed domain names has objected to the consolidation request of the Complainants or advanced any reasons why it may not be equitable to allow the consolidation of the disputes. The Panel is of the view is that the consolidation would lead to greater procedural efficiency, and is not aware of any reasons why the consolidation would not be fair and equitable to all parties. Therefore, the Panel decides to allow the consolidation of the Complainants and of the disputes in relation to all of the disputed domain names in the present proceeding. 6.3. Substantive issues Pursuant to the Policy, paragraph 4(a), the Complainants must prove each of the following to justify the transfer of the disputed domain names: (i) each of the disputed domain names is identical or confusingly similar to a trademark or service mark in which the Complainants have rights; (ii) the Respondents have no rights or legitimate interests in respect of the disputed domain names; and (iii) the Respondents have registered and are using the disputed domain names in bad faith. By the Rules, paragraph 5(c)(i), it is expected of a respondent to: “[r]espond specifically to the statements and allegations contained in the complaint and include any and all bases for the Respondent (domain name holder) to retain registration and use of the disputed domain name […]”. The Respondents have however not submitted a Response and have not disputed the Complainants’ contentions and evidence in this proceeding. A. Identical or Confusingly Similar The Complainants have provided evidence that each of them is the owner of various registrations of the VULKAN trademark. In view of this, the Panel accepts that the Complainants have established their rights in the VULKAN trademark for the purposes of the present proceeding. The Panel notes that a common practice has emerged under the Policy to disregard in appropriate circumstances the Top-Level Domain (“TLD”) section of domain names for the purposes of the comparison under the Policy, paragraph 4(a)(i). See section 1.11.1 of the WIPO Overview 3.0. The Panel sees no reason not to follow the same approach here, so it will disregard the “.com”, “.net”, “.me”, and “.vip” TLD sections of the disputed domain names. The disputed domain names incorporate the word element of the VULKAN trademark or its Latin transliteration entirely in combination with the dictionary word “slot” (or “slots”) and in some cases adding a number, while the disputed domain name In cases where a domain name incorporates the entirety of a trademark, or where at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered confusingly similar to that mark for purposes of UDRP standing. See section 1.7 of the WIPO Overview 3.0. In view of the above, the Panel finds that the disputed domain names are confusingly similar to the VULKAN trademark in which the Complainants have rights. B. Rights or Legitimate Interests While the overall burden of proof in UDRP proceedings is on the complainant, UDRP panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often-impossible task of “proving a negative”, requiring information that is often primarily within the knowledge or control of the respondent. As such, 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. See section 2.1 of the WIPO Overview 3.0. The Complainants contend that the Respondents have no rights or legitimate interests in the disputed domain names, stating that the Complainants and/or their predecessors in title and licensees commenced trading under the VULKAN trademark many years before any of the disputed domain names was registered, and that the Respondents are not commonly known under the disputed domain names or under the VULKAN trademark. According to the Complainants, the Respondents are not carrying out a bona fide use of the disputed domain names, as the websites at the disputed domain names offer gambling services in competition with the Complainants and prominently display the VULKAN trademark without authorization by the Complainants. Thus, the Complainants have established a prima facie case that the Respondents lack rights or legitimate interests in the disputed domain names. The Respondents have not submitted a Response and have not alleged that they have rights or legitimate interests in the disputed domain names and have not disputed the Complainants’ allegations in this proceeding. The Respondents have registered eight disputed domain names that are all confusingly similar to the VULKAN trademark and share the same naming pattern, and the evidence in the case file shows that all of them indeed resolve to almost identical gambling websites that feature the VULKAN trademark without disclosing the lack of relationship between the Parties. As discussed in section 6.2 above, it is more likely than not that the disputed domain names are under common control. In view of the above, the Panel is satisfied that it is more likely than not that the Respondents, being aware of the goodwill of the Complainant’s VULKAN trademark, have registered and used the disputed domain names in an attempt to exploit the trademark’s goodwill to attract Internet users to the Respondents’ websites which offer gambling services in competition with the Complainants without disclosure of the lack of relationship between the Parties and without authorization of this conduct by the Complainants. To the Panel, such conduct does not appear to be legitimate nor giving rise to rights or legitimate interests of the Respondents in the disputed domain names. Therefore, the Panel finds that the Respondents do not have rights or legitimate interests in the disputed domain names. C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy lists four illustrative 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 website or other online 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 disputed domain names incorporate the VULKAN trademark, which was first registered many years prior to the registration of any of the disputed domain names. The Respondents do not deny that the disputed domain names are linked to websites that offer gambling services in competition with the Complainants and feature the VULKAN trademark without disclosing the lack of relationship between the Parties. The Respondents also do not deny that their conduct has not been authorized by the Complainants. In addition, it is more likely than not that the disputed domain names are under common control (see section 6.2 above). Taking the above into account, the Panel accepts that it is more likely than not that the Respondents have registered the disputed domain names with knowledge of the Complainants and targeting the VULKAN trademark in an attempt to attract traffic to the disputed domain names by confusing Internet users that they are reaching official online locations where the Complainant’s gambling services are provided. In view of this, the Panel accepts that by registering and using the disputed domain names, the Respondents have intentionally attempted to attract, for commercial gain, Internet users to the websites at the disputed domain names, by creating a likelihood of confusion with the Complainant’s VULKAN trademark, which supports a finding of bad faith conduct under Paragraph 4(b)(iv) of the Policy. Therefore, the Panel finds that the disputed domain names have been registered and 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 names Assen Alexiev
Sole Panelist
Date: September 28, 2020
Full & Egal Universal Law Academy