The Complainant is Novomatic AG, Austria, represented by GEISTWERT Kletzer Messner Mosing Schnider Schultes Rechtsanwälte OG, Austria.
The Respondent is Koval Dmitrii, Ukraine. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 15, 2020. On September 15, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On September 15, 2020, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on September 24, 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 amended Complaint on September 25, 2020. 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 September 29, 2020. In accordance with the Rules, paragraph 5, the due date for Response was October 19, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default October 21, 2020. On October 22, 2020, due to an apparent issue with the notification, the Center granted the Respondent a five day period in which to indicate whether it wished to participate to this proceeding. No communication was received from the Respondent. The Center appointed Dawn Osborne as the sole panelist in this matter on October 29, 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 provides goods and services in relation to the electronic gaming. The Complainant is the owner of the European Union (“EU”) trade mark BOOK OF RA, registered in word and logo form, inter alia, for gaming products and services in the EU under registration number 012456828 from April 23, 2014. The Domain Name was registered on September 4, 2020, and has been used to purportedly offer the Complainant’s Book of Ra game for downloading from the website using the Complainant’s word mark and logo. 5. Parties’ Contentions A. Complainant The Complainant’s contentions can be summarised as follows: The Complainant is the owner of the EU trade mark BOOK OF RA, registered in word and logo form, inter alia, for gaming products and services in the EU under registration number 012456828 from April 23, 2014. The Domain Name registered on September 4, 2020 is identical to the Complainant’s trade mark for the purposes of the Policy. The Respondent does not have rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorised by the Complainant. The Domain Name has been pointed to a site using the Complainant’s trade mark in word and logo form and copyright material of the Complainant which would mislead consumers into believing that the Complainant is the owner of the website. This is registration and use in bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar The Domain Name consists of the Complainant’s BOOK OF RA mark (which has been registered, inter alia, in the EU in word and logo form for gaming products and services since 2014), hyphens and the generic Top-Level Domain (“gTLD”) “.biz”. The use of punctuation such as hyphens and a gTLD, such as “.biz”, does not serve to distinguish the Domain Name from the Complainant’s mark, which is clearly recognisable in the Domain Name. Accordingly, the Panel holds that the Domain Name is confusingly similar for the purpose of the Policy to a mark in which the Complainant has rights. As such, the Panel holds that paragraph 4 (a)(i) of the Policy has been satisfied. B. Rights or Legitimate Interests The Complainant has not authorised the use of its mark. There is no evidence or reason to suggest the Respondent is commonly known by the Domain Name. The website attached to the Domain Name purportedly offers the Complainant’s Book of Ra game for downloading using the Complainant’s word mark and logo, and using copyright content from the Complainant’s website, which would create a false impression that the website is associated with the Complainant. Such Use is not a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the Domain Name. Moreover, the nature of the Domain Name being almost identical to the Complainant’s mark carries a risk of implied affiliation with the Complainant. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 2.5.1. As such, the Panel finds that the Respondent does not have rights or legitimate interests in the Domain Name and that the Complainant has satisfied the second limb of the Policy. C. Registered and Used in Bad Faith In the opinion of the Panel the use made of the Domain Name in relation to the Respondent’s site is confusing and disruptive in that visitors to the site might reasonably believe it is connected to or approved by the Complainant as it uses the Complainant’s trade mark and logo for downloading the Complainant’s Book of Ra game and copyright material from the Complainant’s site. This use shows that the Respondent has actual knowledge of the Complainant, its business, rights and services. Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to his website by creating likelihood of confusion with the Complainant’s trade mark as to the source, sponsorship, affiliation or endorsement of the web site or services offered on it likely to disrupt the business of the Complainant. As such, the Panel believes that the Complainant has made out its case that the Domain Name was registered and is being used in bad faith and has satisfied the third limb of the Policy under paragraph 4(a)(iii). 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 Domain Name Dawn Osborne
Sole Panelist
Date: October 29, 2020
Full & Egal Universal Law Academy