The Complainant is Evolution Gaming Group AB, Sweden, represented by Zacco Sweden AB, Sweden.
The Respondent is Mr. Jumloon Khongthai, Thailand. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 7, 2020. On October 7, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On October 8, 2020, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that 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 October 9, 2020. In accordance with the Rules, paragraph 5, the due date for Response was October 29, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 30, 2020. The Center appointed Nicholas Smith as the sole panelist in this matter on November 3, 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 a Swedish company with subsidiaries in Malta that operates online gaming and live casino platforms. The Complainant offers (and has offered since 2010) online gaming services under the word mark EVOLUTION GAMING (the “EVOLUTION GAMING Mark”). The Complainant is the owner of, amongst other registrations, a European Union Trade Mark registration for EVOLUTION GAMING registered on December 18, 2017, (registration number 16691503) for goods and services in classes 09, 28, 41, and 42. The Domain Name The Complainant makes the following contentions: (i) that the Domain Name is identical or confusingly similar to the Complainant’s EVOLUTION GAMING Mark; (ii) that the Respondent has no rights nor any legitimate interests in respect of the Domain Name; and (iii) that the Domain Name has been registered and is being used in bad faith. The Complainant is the owner of the EVOLUTION GAMING Mark, having registered the EVOLUTION GAMING Mark in the European Union. The Domain Name is confusingly similar to the EVOLUTION GAMING Mark and is being used in connection with services of an identical nature. There are no rights or legitimate interests held by the Respondent in respect of the Domain Name. The Respondent is not commonly known as the Domain Name nor does the Respondent have any authorization from the Complainant to register the Domain Name. The Respondent is not making a legitimate noncommercial or fair use of the Domain Name. Rather the Respondent is using the Domain Name to resolve to a website that provides competing services. The Domain Name was registered and is being used in bad faith. By using the Domain Name to resolve to a website that offers competing services, the Respondent is using the Domain Name to divert Internet users searching for the Complainant to a competing website for commercial gain. Such conduct amounts to registration and use of the Domain Name in bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar To prove this element the Complainant must have trade or service mark rights and the Domain Name must be identical or confusingly similar to the Complainant’s trade or service mark. The Complainant is the owner of the EVOLUTION GAMING Mark, having a registration for the EVOLUTION GAMING Mark as a trade mark in the European Union. The Domain Name consists of a minor misspelling of the EVOLUTION GAMING Mark, being the addition of the letter “s” and a hyphen between the two words in the EVOLUTION GAMING Mark. A domain name which consists of a common, obvious, or intentional misspelling of a trademark is considered by panels to be confusingly similar to the relevant mark for purposes of the first element, see section 1.9 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). The Panel finds that the Domain Name is confusingly similar to the Complainant’s EVOLUTION GAMING Mark. Consequently, the requirement of paragraph 4(a)(i) of the Policy is satisfied. B. Rights or Legitimate Interests To succeed on this element, a complainant must make out a prima facie case that the respondent lacks rights or legitimate interests in the domain name. If such a prima facie case is made out, then the burden of production shifts to the respondent to demonstrate rights or legitimate interests in the domain name. Paragraph 4(c) of the Policy enumerates several ways in which a respondent may demonstrate rights or legitimate interests in a domain name: “Any of the following circumstances, in particular but without limitation, if found by the panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of paragraph 4(a)(ii): (i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or (ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or (iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.” The Respondent is not affiliated with the Complainant in any way. It has not been authorized by the Complainant to register or use the Domain Name or to seek the registration of any domain name incorporating the EVOLUTION GAMING Mark or a mark similar to the EVOLUTION GAMING Mark. There is no evidence that the Respondent is commonly known by the Domain Name or any similar name (indeed the Respondent’s Website appears to trade under the term “IMI 55”). There is no evidence that the Respondent has used or made demonstrable preparations to use the Domain Name in connection with a legitimate noncommercial or fair use or a bona fide offering of goods and services. The Respondent’s use of the Domain Name to redirect to a webpage offering services in direct competition with the services offered by the Complainant does not, on the face of it, amount to use for a bona fide offering of goods and services. The Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the Domain Name. The Respondent has had the opportunity to put on evidence of its rights or legitimate interests, including submissions as to why its conduct amounts to a right or legitimate interest in the Domain Name under the Policy. In the absence of such a Response, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith For the purposes of paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith: (i) circumstances indicating that the respondent has registered or has 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 trade mark or service mark or to a competitor of the complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the domain name; or (ii) the respondent has registered the domain name in order to prevent the owner of the trade mark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or (iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its 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 the respondent’s website or location or of a product or service on the respondent’s website or location (Policy, paragraph 4(b)). The Panel finds that the Respondent was aware of the Complainant and its reputation in the EVOLUTION GAMING Mark at the time the Domain Name was registered. The Domain Name was registered 10 years after the first use of the EVOLUTION GAMING Mark and 3 years after the Complainant had applied to register the EVOLUTION GAMING Mark as a trade mark. There is no obvious reason (and the Respondent has not chosen to provide such a reason), for an entity to register a domain name consisting of a minor misspelling of the EVOLUTION GAMING Mark and redirect it to a site offering services in direct competition with the Complainant absent any awareness of the Complainant and its EVOLUTION GAMING Mark. The registration of the Domain Name in awareness of the EVOLUTION GAMING Mark and in the absence of rights or legitimate interests amounts under these circumstances to registration in bad faith. The Respondent’s Website offers services in direct competition with the Complainant. Given that the Respondent has offered no plausible explanation for the registration of the Domain Name, the Panel finds that that the Respondent is using the Domain Name to intentionally attempt to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the EVOLUTION GAMING Mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s Website. Although the Domain Name does not currently resolve to an active website, this does not prevent a finding of bad faith in the circumstances of this case. As such, the Panel finds that the Domain Name is being used in bad faith. Accordingly, the Panel finds that the Respondent has registered and used the Domain Name in bad faith under paragraph 4(a)(iii) of the Policy. 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 Nicholas Smith
Sole Panelist
Date: November 6, 2020
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