Complainant is Merryvale Limited, Guernsey, represented by Herzog, Fox & Neeman, Israel.
Respondent is Pavel Kolosov, Russian Federation. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 12, 2020. On November 12, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 12, 2020, the Registrar transmitted by email to the Center its verification response confirming that 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 Respondent of the Complaint, and the proceedings commenced on November 20, 2020. In accordance with the Rules, paragraph 5, the due date for Response was December 10, 2020. On November 22, 2020, and November 23, 2020, Respondent sent informal email communications to the Center. The Center appointed Stephanie G. Hartung as the sole panelist in this matter on January 7, 2021. 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 Complainant is a company organized under the laws of Guernsey that is active in the online gaming industry, operating, inter alia, a number of online gaming websites under the brand name “SpinCasino”. Complainant has provided evidence that it is the registered owner of numerous trademarks relating to its brand name “SpinCasino”, inter alia, but not limited to the following: - Word mark SPINCASINO, European Union Intellectual Property Office (EUIPO), registration number: 013335427, registration date: February 18, 2015, status: active. Moreover, Complainant has demonstrated to own several domain names relating to its SPINCASINO trademark, e.g. the domain name Respondent is a resident of the Russian Federation and registered the disputed domain name on June 27, 2020, which resolves to a website at “www.spin-casino.org”, offering online casino services in a variety of languages under the heading “Spin-Casino”. Complainant requests that the disputed domain name be transferred to Complainant. 5. Parties’ Contentions A. Complainant Complainant contends that, as a result of significant investments, its “SpinCasino” websites are meanwhile considered to be amongst the most leading gaming websites in the world with an average of approximately 530,000 visitors per month, and that Complainant, as part of the larger Betway group of companies, enjoys a substantial worldwide reputation as a market leader in the field of online gaming. Complainant submits that the disputed domain name is at least confusingly similar to Complainant’s SPINCASINO trademark, as it only consists of the words “Spin” and “Casino” together with a hyphen. Moreover, Complainant asserts that Respondent has no rights or legitimate interests in respect of the disputed domain name since (1) Respondent is not affiliated with Complainant and has never been licensed or otherwise authorized to use Complainant’s SPINCASINO trademark; and (2) Respondent has not used the disputed domain name in connection with a bona fide offering of goods or services, but rather to offer online casino services, same as Complainant, and thereby clearly using the disputed domain name to unlawfully benefit from Complainant’s SPINCASINO trademark’s reputation. Finally, Complainant argues that Respondent registered and is using the disputed domain name in bad faith since (1) Complainant’s SPINCASINO trademark has been for many years (and still is) a world-famous brand why it is clear that Respondent knew of such trademark and operation by the time of the registration of the disputed domain name, and (2) Internet users would inevitably be confused into thinking that the disputed domain name is connected to Complainant, which it is not. B. Respondent Respondent did not formally reply to Complainant’s contentions, however, he sent informal email communications to the Center on November 22, 2020, as well as on November 23, 2020, indicating that the disputed domain name was free at the time of its registration and that the website thereunder is different and does not copy the information and logo of Complainant’s official website. 6. Discussion and Findings Under paragraph 4(a) of the Policy, Complainant carries the burden of proving: (i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and (ii) that Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) that the disputed domain name has been registered and is being used in bad faith. Respondent’s formal default in the case at hand does not automatically result in a decision in favor of Complainant. However, paragraph 5(f) of the Rules provides that if Respondent does not submit a response, in the absence of exceptional circumstances, the Panel shall decide the dispute solely based upon the Complaint. Further, according to paragraph 14(b) of the Rules, the Panel may draw such inferences from Respondent’s failure to submit a Response as it considers appropriate. A. Identical or Confusingly Similar The Panel concludes that the disputed domain name The disputed domain name incorporates the SPINCASINO trademark in its entirety, simply added by a hyphen. Numerous UDRP panels have recognized that incorporating a trademark in its entirety can be sufficient to establish that the disputed domain name is at least confusingly similar to a registered trademark (see e.g. PepsiCo, Inc. v. PEPSI, SRL (a/k/a P.E.P.S.I.) and EMS Computer Industry (a/k/a EMS),WIPO Case No. D2003-0696). Moreover, it has been held in many UDRP decisions and has become a consensus view among panelists (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.11) that the applicable generic Top-Level Domain (“gTLD”) in a domain name is generally viewed as a standard registration requirement and as such is disregarded under the first element test. Accordingly, the existence of the gTLD “.org” does not dispel the finding of confusing similarity arising from the entire incorporation of Complainant’s SPINCASINO trademark in the disputed domain name. Therefore, Complainant has established the first element under the Policy set forth by paragraph 4(a)(i). B. Rights or Legitimate Interests The Panel is further convinced on the basis of Complainant’s undisputed contentions that Respondent has not made use of the disputed domain name in connection with a bona fide offering of goods or services, nor has Respondent been commonly known by the disputed domain name, nor can it be found that Respondent has made a legitimate noncommercial or fair use thereof without intent for commercial gain. Respondent has neither been granted a license nor has it been otherwise authorized by Complainant to use its SPINCASINO trademark, either as a domain name or in any other way. Also, there is no reason to believe that Respondent’s name somehow corresponds with the disputed domain name, and Respondent does not appear to have any trademark rights associated with the term “Spin(-)Casino” on its own. Finally, the disputed domain name resolves to a commercially active website at “www.spin-casino.org” which offers online casino services identical to those offered by Complainant, and thereby prominently displaying as a heading the term “Spin-Casino”, obviously in a manner to somehow profit unjustifiably from the undisputed reputation which Complainant’s SPINCASINO trademark enjoys in the online gaming industry. Such use of the disputed domain name neither qualifies as bona fide nor as legitimate noncommercial or fair within the meaning of paragraph 4(c) of the Policy. Accordingly, Complainant has established a prima facie case that Respondent has no rights or legitimate interests in respect of the disputed domain name. Now, the burden of production shifts to Respondent to come forward with appropriate allegations or evidence demonstrating to the contrary (see WIPO Overview, Section 2.1). Given that Respondent has formally defaulted, and in his informal emails not seriously contradicted any of Complainant’s contentions, he has not met that burden. The Panel, therefore, finds that Respondent has no rights or legitimate interests in respect of the disputed domain name and that Complainant has also satisfied paragraph 4(a)(ii) and, thus, the second element of the Policy. C. Registered and Used in Bad Faith The Panel finally holds that the disputed domain name was registered and is being used by Respondent in bad faith. The circumstances to this case leave no doubt that Respondent was fully aware of Complainant’s online casino business and its rights in the SPINCASINO trademark (notwithstanding the claimed worldwide reputation of this trademark beyond the territory of e.g. the European Union) when registering the disputed domain name and that the latter clearly is directed to this trademark. Moreover, using the disputed domain name, which is almost identical to Complainant’s SPINCASINO trademark, to run a website offering online casino services that are identical or at least confusingly similar to those of Complainant, and thereby prominently displaying as a heading the term “Spin-Casino” as it is reflected in Complainant’s SPINCASINO trademark, is a clear indication that Respondent intentionally attempted to attract, for commercial gain, Internet users to its own website by creating a likelihood of confusing with Complainant’s SPINCASINO trademark as to the source, sponsorship, affiliation or endorsement of Respondent’s website. Such circumstances are evidence of registration and use of the disputed domain name in bad faith within the meaning of paragraph 4(b)(iv) of the Policy. In connection with this finding, it also carries weight in the eyes of the Panel that Respondent obviously provided false or incomplete contact information in the WhoIs register for the disputed domain name since, according to the email correspondence between the Center and the postal courier DHL, the Written Notice on the Notification of Complaint dated November 20, 2020, could not be delivered because of a “bad address”. This fact at least throws a light on Respondent’s behavior which supports the Panel’s bad faith finding. 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 Stephanie G. Hartung
Sole Panelist
Date: January 12, 2021
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