Complainant is Rational Intellectual Holdings Limited, Isle of Man, represented internally.
Respondent is Zhujinling, China. 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 29, 2020. On September 29, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 12, 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 Complainant on October 14, 2020 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 October 20, 2020. On October 14, 2020, the Center sent a communication to the Parties, in English and Chinese, regarding the language of the proceeding. On October 16, 2020, Complainant requested that English be the language of the proceeding. Respondent did not comment on the language of the proceeding. 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 October 21, 2020. In accordance with the Rules, paragraph 5, the due date for Response was November 10, 2020. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on November 11, 2020. The Center appointed Yijun Tian as the sole panelist in this matter on December 15, 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 A. Complainant Complainant, Rational Intellectual Holdings Limited, is a company incorporated in the Isle of Man. It is a world leading online poker game service provider. Complainant entered the online poker market in 2001, providing multi-table poker tournaments to the online community via innovative websites. In 2002, it launched its first major online poker tournament, the World Championship of Online Poker. Complainant has exclusive rights in POKERSTARS, and POKERSTARS related marks (hereinafter “POKERSTARS marks”). Complainant is the exclusive owner of numerous POKERSTARS marks worldwide, including a United States of America (“US”) trademark registration for POKERSTARS registered on February 12, 2008 (US trademark registration number 3381727); and a Chinese trademark registration for POKERSTARS registered on July 28, 2014 (the Chinese trademark registration number 12172292). Complainant also owns numerous domain names, which contain the POKERSTARS mark in its entirety, such as Respondent is Zhujinling, China. The disputed domain name Complainant contends that the disputed domain name Complainant contends that Respondent does not have any rights or legitimate interests in the disputed domain name. Complainant contends that Respondent has registered and used the disputed domain name in bad faith. Complainant requests that the disputed domain name be transferred to Complainant. B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings 6.1. Language of the Proceeding The language of the Registration Agreement for the disputed domain name (a) Complainant is an English language company registered in the Isle of Man (British Isles) with English language employees responsible for its domain names and the enforcement of its intellectual property. (b) Complainant’s brand and intellectual property, which is the subject of the Complaint is English language. (c) The disputed domain name is in English language. Respondent did not make any submissions with respect to the language of the proceeding and did not object to the use of English as the language of the proceeding. Paragraph 11(a) of the Rules allows the panel to determine the language of the proceeding having regard to all the circumstances. In particular, it is established practice to take paragraphs 10(b) and (c) of the Rules into consideration for the purpose of determining the language of the proceeding. In other words, it is important to ensure fairness to the parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes (Whirlpool Corporation, Whirlpool Properties, Inc. v. Hui’erpu (HK) electrical appliance co. ltd.,WIPO Case No. D2008-0293; Solvay S.A. v. Hyun-Jun Shin,WIPO Case No. D2006-0593). The language finally decided by the panel for the proceeding should not be prejudicial to either one of the parties in its abilities to articulate the arguments for the case (Groupe Auchan v. xmxzl,WIPO Case No. DCC2006-0004). WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) further states: “Noting the aim of conducting the proceedings with due expedition, paragraph 10 of the UDRP Rules vests a panel with authority to conduct the proceedings in a manner it considers appropriate while also ensuring both that the parties are treated with equality, and that each party is given a fair opportunity to present its case. Against this background, panels have found that certain scenarios may warrant proceeding in a language other than that of the registration agreement. Such scenarios include (i) evidence showing that the respondent can understand the language of the complaint, (ii) the language/script of the domain name particularly where the same as that of the complainant’s mark, (iii) any content on the webpage under the disputed domain name, (iv) prior cases involving the respondent in a particular language, (v) prior correspondence between the parties, (vi) potential unfairness or unwarranted delay in ordering the complainant to translate the complaint, (vii) evidence of other respondent-controlled domain names registered, used, or corresponding to a particular language, (viii) in cases involving multiple domain names, the use of a particular language agreement for some (but not all) of the disputed domain names, (ix) currencies accepted on the webpage under the disputed domain name, or (x) other indicia tending to show that it would not be unfair to proceed in a language other than that of the registration agreement.” (WIPO Overview 3.0, section 4.5.1; see also L’Oreal S.A. v. MUNHYUNJA,WIPO Case No. D2003-0585). The Panel has taken into consideration the facts that Complainant is a company from the Isle of Man, and Complainant will be spared the burden of working in Chinese as the language of the proceeding. The Panel has also taken into consideration the fact that the disputed domain name On the record, Respondent appears to be a Chinese resident and is thus presumably not a native English speaker. However, considering the following, the Panel has decided that English should be the language of the proceeding: (a) the disputed domain name includes Latin characters and particularly English words “poker”, “stars”, and “exchange”, rather than Chinese script; (b) the gTLD of the disputed domain name is “.com”, so the disputed domain name seems to be prepared for users worldwide; (c) the Center has notified Respondent of the proceeding in both Chinese and English, and Respondent has indicated no objection to Complainant’s request that English be the language of the proceeding; and (d) the Center informed the Parties, in English and Chinese, that it would accept a Response in either English or Chinese. The Panel would have accepted a response in either English or Chinese but none was filed. Accordingly, the Panel finds the choice of English as the language of the present proceeding is fair to both Parties and is not prejudicial to either one of the Parties in its ability to articulate the arguments for this case. Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that English shall be the language of the proceeding, and the decision will be rendered in English. 6.2. Substantive Issues Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that the disputed domain name should be cancelled or transferred: (i) the disputed domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and (ii) 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. On the basis of the evidence introduced by Complainant and in particular with regard to the content of the relevant provisions of the Policy (paragraphs 4(a)-(c)), the Panel concludes as follows: A. Identical or Confusingly Similar The Panel finds that Complainant has rights in the POKERSTARS marks. The disputed domain name Previous UDRP panels have consistently held that a domain name is identical or confusingly similar to a trademark for purposes of the Policy “when the domain name includes the trademark, or a confusingly similar approximation, regardless of the other terms in the domain name”. (Wal-Mart Stores, Inc. v. Richard MacLeod d/b/a For Sale,WIPO Case No. D2000-0662). Further, in relation to the gTLD suffix, WIPO Overview 3.0 further states: “The applicable Top-Level Domain (‘TLD’) in a domain name (e.g., ‘.com’, ‘.club’, ‘.nyc’) is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test.” (WIPO Overview 3.0, section 1.11.1.) The Panel therefore holds that the Complaint fulfils the first condition of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy provides a list of circumstances any of which is sufficient to demonstrate that Respondent has rights or legitimate interests in the disputed domain name: (i) before any notice to Respondent of the dispute, the use by Respondent 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) Respondent has been commonly known by the disputed domain name, even if Respondent has acquired no trademark or service mark rights; or (iii) 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 Complainant’s trademarks. The overall burden of proof on this element rests with Complainant. However, it is well established by previous UDRP panel decisions that once a complainant establishes a prima facie case that a respondent lacks rights or legitimate interests in a domain name, the burden of production shifts to respondent to rebut complainant’s contentions. If respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy. (Danzas Holding AG, DHL Operations B.V. v. Ma Shikai,WIPO Case No. D2008-0441; WIPO Overview 3.0, section 2.1 and cases cited therein). The POKERSTARS marks have been registered internationally, such as a US registration since 2008, and a Chinese registration since 2014, which long precede Respondent’s registration of the disputed domain name (in 2017). According to the Complaint, Complainant is a world leading online poker game service provider, which entered the online poker market in 2001, providing multi-table poker tournaments to the online community via innovative websites. It launched its first major online poker tournament, the World Championship of Online Poker in 2002. Moreover, Respondent is not an authorized dealer of POKERSTARS branded products or services. Complainant has therefore established a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name and thereby shifted the burden to Respondent to produce evidence to rebut this presumption (The Argento Wine Company Limited v. Argento Beijing Trading Company,WIPO Case No. D2009-0610; Do The Hustle, LLC v. Tropic Web,WIPO Case No. D2000-0624; Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455). Based on the following reasons the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name: (a) There has been no evidence adduced to show that Respondent is using the disputed domain name in connection with a bona fide offering of goods or services. Respondent has not provided evidence of a legitimate use of the disputed domain name or reasons to justify the choice of the term “pokerstars” in the disputed domain name. There has been no evidence to show that Complainant has licensed or otherwise permitted Respondent to use the POKERSTARS marks or to apply for or use any domain name incorporating the POKERSTARS marks. (b) There has been no evidence adduced to show that Respondent has been commonly known by the disputed domain name. There has been no evidence adduced to show that Respondent has any registered trademark rights with respect to the disputed domain name. Respondent registered the disputed domain name in 2017, long after the POKERSTARS marks became internationally known. The disputed domain name is confusingly similar to the POKERSTARS marks. (c) There has been no evidence adduced to show that Respondent is making a legitimate noncommercial or fair use of the disputed domain name. The website resolved by the disputed domain name is currently inactive. The Panel notes that Respondent has not produced any evidence to establish his/her rights or legitimate interests in the disputed domain name. Accordingly, Complainant has established that Respondent has no rights or legitimate interests in the disputed domain name. The Panel therefore holds that the Complaint fulfils the second condition of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy sets out four circumstances, which, without limitation, shall be evidence of the registration and use of the disputed domain name in bad faith, namely: (i) circumstances indicating that Respondent has registered or acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the disputed domain name registration to Complainant who is the owner of the trademark or service mark or to a competitor of Complainant, for valuable consideration in excess of Respondent’s documented out-of-pocket costs directly related to the disputed domain name; or (ii) Respondent has registered the disputed 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 Respondent has engaged in a pattern of such conduct; or (iii) Respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the disputed domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other online location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on the website or location. (a) Registration in Bad Faith The Panel finds that the POKERSTARS marks have widespread reputation as a world leading online poker game service provider, which entered the online poker market in 2001, providing multi-table poker tournaments to the online community via innovative websites. As mentioned above, POKERSTARS marks are registered internationally, including the US trademark (since 2008) and the Chinese (since 2014). It is not conceivable that Respondent would not have had actual notice of the POKERSTARS marks at the time of the registration of the disputed domain name (in 2017). The Panel therefore finds that the POKERSTARS mark is not one that a trader could legitimately adopt other than for the purpose of creating an impression of an association with Complainant (The Argento Wine Company Limited v. Argento Beijing Trading Company, supra). Moreover, Respondent has chosen not to respond to Complainant’s allegations. According to the UDRP decision in The Argento Wine Company Limited v. Argento Beijing Trading Company, supra, “the failure of the Respondent to respond to the Complaint further supports an inference of bad faith”. See also Bayerische Motoren Werke AG v. (This Domain is For Sale) Joshuathan Investments, Inc.,WIPO Case No. D2002-0787. Thus, the Panel concludes that the disputed domain name was registered in bad faith. (b) Use in Bad Faith The disputed domain name The WIPO Overview 3.0 further states: “While panelists will look at the totality of the circumstances in each case, factors that have been considered relevant in applying the passive holding doctrine include: (i) the degree of distinctiveness or 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, (iii) the respondent’s concealing its identity or use of false contact details (noted to be in breach of its registration agreement), and (iv) the implausibility of any good faith use to which the domain name may be put.” As discussed above, Complainant’s POKERSTARS marks, arguably, are widely known. Taking into account all the circumstances of this case, the Panel concludes that the current inactive use of the disputed domain name by Respondent is in bad faith also. See also Bulgari S.p.A. v. Weng Ru Hai,WIPO Case No. D2019-1331. In summary, Respondent, by choosing to register and use a domain name, which is confusingly similar to Complainant’s widely known trademarks, intended to disrupt Complainant’s business. In the absence of evidence to the contrary from Respondent, the choice of the disputed domain name and the conduct of Respondent are indicative of registration and use of the disputed domain name in bad faith. The Panel therefore holds that the Complaint fulfils the third condition of paragraph 4(a) of the Policy. 7. Decision For all 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 Yijun Tian
Sole Panelist
Date: December 29, 2020
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