The Complainant is Tipico Co. Ltd., Malta, represented by Boehmert & Boehmert, Germany.
The Respondent is GigabetBG GigabetBG, Bulgaria. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 1, 2020. On July 2, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 2, 2020, 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 the Complainant on July 3, 2020 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on July 3, 2020. The Center verified that the Complaint together with the amendment to 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 July 9, 2020. In accordance with the Rules, paragraph 5, the due date for Response was July 29, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 30, 2020. The Center appointed Wilson Pinheiro Jabur as the sole panelist in this matter on August 11, 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 Complainant was founded in 2004 and is an international provider of sports betting services and casino games, headquartered in Malta. It is the owner, among others, of the following trademarks (Annex 5 to the Complaint): - European Union registration No. 003939998 for the word mark TIPICO, registered on September 23, 2005, in class 41; and - International registration No. 863984 for the word mark TIPICO, registered on May 25, 2005, in classes 09, 28, 35, and 41. The disputed domain name was registered on June 3, 2020, and resolves to a parked webpage displaying pay-per-click (“PPC”) links including links to other betting services. The top of the webpage displays a message offering for sale the disputed domain name. 5. Parties’ Contentions A. Complainant The Complainant claims to be the market leader for sports betting in Germany, counting with over 1,200 betting shops in that country, as well as with branches in Austria, Croatia, Gibraltar, and Colombia, employing more than 6,000 people. The Complainant further contends to have become well known in Europe due to substantial marketing efforts such as being the sponsor of the football league club FC Bayern Munich and the sponsor of the German Football League (“DFL”) and of the first football division in Austria which is referred to as “tipico-Bundesliga” (Annex 4 to the Complaint). According to the Complainant, the disputed domain name was registered in a way to conceal the identity of the real owner and operator of the disputed domain name but the Respondent is not known or in any way related to the Complainant, or authorized to use the Complainant’s trademarks. Under the Complainant’s view the disputed domain name incorporates the Complainant’s well-known TIPICO trademark and is thus confusingly similar therewith, being the addition of the expression “vip” insufficient to avoid a finding of confusing similarity under the Policy. Regarding the absence of the Respondent’s rights or legitimate interests, the Complainant argues that: i. it has not licensed or otherwise permitted the Respondent to use any of its trademarks or to register a domain name incorporating its TIPICO trademark; ii. the Respondent is not making a legitimate noncommercial or fair use of the disputed domain name, rather showing a clear intent to obtain an unfair commercial gain, with a view to misleadingly diverting consumers or to tarnish the trademarks owned by the Complainant; iii. the Respondent is not offering the Complainant’s betting services but is promoting competing betting services, also capitalizing on the reputation and goodwill of the Complainant’s mark in view of the PPC links available at the webpage that resolves from the disputed domain name; and iv. the criteria for a bona fide offering of goods or services as established in Oki Data Americas, Inc. v. ASD, Inc, WIPO Case No. D2001-0903 are not met. As to the registration and use of the disputed domain name, the Complainant states that: i. the Respondent knew of the Complainant’s trademark when registering the disputed domain name; ii. the PPC links available at the webpage that resolves from the disputed domain name mark diverge Internet users to the Complainant’s competitors; iii. the purpose of the Respondent’s registration of the disputed domain name was to attract, for commercial gain, Internet users to the website by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement of its website; iv. the choice to hide the Respondent’s true identity is a further indication of bad faith as recognized in the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 3.6. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 4(a) of the Policy sets forth the following three requirements, which have to be met for this Panel to order the transfer of the disputed domain name to the Complainant: (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and (ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) the disputed domain name has been registered and is being used in bad faith. The Complainant must prove in this administrative proceeding that each of the aforementioned three elements is present in order to obtain the transfer of the disputed domain name. In accordance with paragraph 14(a) of the Rules, if the Respondent does not submit a Response, in the absence of exceptional circumstances, the Panel shall decide the dispute based upon the Complaint. A. Identical or Confusingly Similar The Complainant has established rights over the TIPICO trademark. The disputed domain name incorporates the Complainant’s trademark with the addition of the term “vip” and the “.com” Top-Level Domain (“TLD”) what is insufficient to avoid a finding of confusing similarity under the Policy which, as recognized by past UDRP panels, involves a “comparison of the domain name and the textual components of the relevant trademark to assess whether the mark is recognizable within the disputed domain name” (WIPO Overview 3.0, section 1.7). For the reasons above, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy provides a nonexclusive list of circumstances that may indicate the Respondent’s rights or legitimate interests in the disputed domain name. These circumstances are: (i) before any notice 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 individuals, businesses, or other organizations) has been commonly known by the disputed domain name, in spite of not having acquired trademark 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 trademark or service mark at issue. The Respondent, in not responding to the Complaint, has failed to invoke any of the circumstances, which could demonstrate, pursuant to paragraph 4(c) of the Policy, any rights or legitimate interests in the disputed domain name. This entitles the Panel to draw any inferences from such default as it considers appropriate, pursuant to paragraph 14(b) of the Rules. Nevertheless, the burden of proof is still on the Complainant to make at least a prima facie case against the Respondent under the second UDRP element. According to the evidence submitted, the disputed domain name is being used in connection with a parked page displaying pay-per-click (“PPC”) advertisements that may lead Internet users to services and products related to or competing with the Complainant, which clearly does not characterize a bona fide offering of goods or services under the Policy. In that sense, and also according to the evidence submitted, there is no evidence that the Respondent has been commonly known by the disputed domain name, and furthermore, the Complainant indeed states that the Respondent is not known or in any way related to the Complainant, nor authorized to use the Complainant’s trademarks. Also, the absence of any indication that the Respondent owns registered trademarks or trade names corresponding to the disputed domain name, or any possible link between the Respondent and the disputed domain name that could be inferred from the details known of the Respondent or the webpage relating to the disputed domain name, corroborate with the Panel’s finding of the absence of rights or legitimate interests. Under these circumstances and absent evidence to the contrary, the Panel finds that the Respondent does not have rights or legitimate interests with respect to the disputed domain name. C. Registered and Used in Bad Faith The Policy indicates in paragraph 4(b)(iv) that bad faith registration and use can be found in respect of a disputed domain name, where a respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent’s website or other online location, by creating a likelihood of confusion with a complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the website or location or of a product or service on the website or location. In this case, both the registration and use of the disputed domain name in bad faith can be found pursuant to Policy, paragraph 4(b)(iv) in view of the use of the disputed domain name in connection with PPC advertisements, leading Internet users to products and services related to the Complainant, creating a likelihood of confusion or undue association in Internet users. Two other factors corroborate the Panel’s finding of the Respondent’s bad faith: the choice to use a name with “bet” in it which shows a clear knowledge of the Complainant’s business and at the same time somehow purports to suggest a legitimate operation, coupled with the absence of any response to the Complaint, failing thereby to invoke any circumstance which could demonstrate good faith in the registration or use of the disputed domain names. For the reasons above, the Respondent’s conduct has to be considered, in this Panel’s view, as bad faith registration and use of the disputed domain name. 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 Wilson Pinheiro Jabur
Sole Panelist
Date: August 25, 2020
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