The Complainant is Novomatic AG, Austria, represented by GEISTWERT Kletzer Messner Mosing Schnider Schultes RechtsanwälteOG, Austria.
The Respondent is WhoisGuard, Inc / Ivan Ivanov , United Kingdom. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 3, 2020. On August 3, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 3, 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 complaint deficiency communication to the Complainant on August 7, 2020 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on August 12, 2020. The Center verified that the Complaint 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 13, 2020. In accordance with the Rules, paragraph 5, the due date for Response was September 2, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 3, 2020. The Center appointed Evan D. Brown as the sole panelist in this matter on September 17, 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 is in the business of providing goods and services in the electronic gaming industry. It owns numerous trademark registrations for the mark NOVOMATIC, including Austrian trademark number AT 145211, registered on July 15, 1992. The Respondent registered the disputed domain name on July 19, 2020. It currently does not resolve to an active web page. 5. Parties’ Contentions A. Complainant The Complainant contends that the disputed domain name is identical or confusingly similar to the Complainant’s trademark; 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. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings To succeed, the Complainant must demonstrate that all of the elements listed in paragraph 4(a) of the Policy have been satisfied: (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (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. A. Identical or Confusingly Similar A registered trademark provides a clear indication that the rights in the mark shown on the trademark certificate belong to its respective owner. See, Advance Magazine Publishers Inc., Les Publications Conde Nast S.A. v. Voguechen,WIPO Case No. D2014-0657. The Complainant has demonstrated its rights in the NOVOMATIC mark by providing evidence of its trademark registration in Austria. The disputed domain name, being comprised of the mark, is identical to the Complainant’s trademark for purposes of the Policy. The Complainant has established this first element. B. Rights or Legitimate Interests The Panel evaluates this element of the Policy by first looking to see whether the Complainant has made a prima facie showing that the Respondent lacks rights or legitimate interests in respect of the disputed domain name. If the Complainant makes that showing, the burden of production to demonstrate rights or legitimate interests shifts to the Respondent. The Complainant has established, prima facie, that the Respondent lacks rights or legitimate interests in the disputed domain name. On this point, the Complainant asserts that: - The Respondent has not made preparations to use the disputed domain name. - The Respondent has no relationship with or permission from the Complainant for the use of the trademark NOVOMATIC. - The Respondent has neither been commonly known by the disputed domain name or the mark NOVOMATIC, nor has it acquired any rights in that mark. These facts make the Complainant’s prima facie showing. The Respondent has not provided any evidence that rebuts this prima facie showing. The Panel finds that the Complainant has established this second element under the Policy. C. Registered and Used in Bad Faith The Panel finds it more likely than not that the Respondent knew of and targeted the Complainant’s NOVOMATIC mark when the Respondent registered the disputed domain name. In the circumstances of this case – in which the Respondent has not introduced evidence to the contrary – such a showing is sufficient to establish bad faith registration of the disputed domain name. Bad faith use shown by the Respondent’s activities of passively holding the disputed domain name. That the disputed domain name is currently inactive does not prevent a finding of bad faith. See, Playboy Enterprises International, Inc. v. Registration Private, Domain Protection Services Inc. / Domain Vault, Domain Vault LLC,WIPO Case No. D2018-1456. Given (i) the degree of distinctiveness and reputation of the Complainant’s mark, (ii) the failure of the Respondent to submit a response or to provide any evidence of actual or contemplated good faith use, and (iii) the implausibility of any good faith use to which the disputed domain name may be put, the Panel finds bad faith use. See, WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, section 3.3. For these reasons, the Panel finds that the Complainant has successfully met this third Policy element. 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 Evan D. Brown
Sole Panelist
Date: October 1, 2020
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