Complainant is Nintendo Co., Ltd., Japan, represented by Rouse and Co. International, Hong Kong, China.
Respondent is Svetlana Greegorieva, 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 April 14, 2021. On April 14, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 22, 2021, 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 April 22, 2021 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 April 24, 2021 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 April 26, 2021. In accordance with the Rules, paragraph 5, the due date for Response was May 16, 2021. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on May 17, 2021. The Center appointed Phillip V. Marano as the sole panelist in this matter on June 3, 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 worldwide pioneer in interactive entertainment, primarily engaged in the development, manufacture and sale of video games, and is the owner and producer of the Nintendo Switch gaming console. Complainant has sold more than five billion video games and hundreds of millions of consoles globally since 1983, including roughly five-hundred thirty million Nintendo Switch games and eighty million Nintendo Switch consoles since its release in March 2017. Complainant owns valid and subsisting registrations for the SWITCH and NINTENDO SWITCH trademarks (collectively the “NINTENDO SWITCH Trademarks”) in numerous countries, including in the Russian Federation, with the earliest priority for the NINTENDO SWITCH trademark dating back to October 18, 2016. Respondent registered the disputed domain name on March 4, 2020. At the time of this Complaint, the disputed domain name resolves to a website which purports to offer for sale Nintendo Switch user accounts. 5. Parties’ Contentions A. Complainant Complainant asserts ownership of the NINTENDO SWITCH Trademarks and has adduced evidence of trademark registrations in numerous countries around the world including the Russian Federation, with the earliest priority dating back to October 18, 2016. The disputed domain name is confusingly similar to Complainant’s NINTENDO SWITCH Trademarks, according to Complainant, because it incorporates the entirety of the SWITCH trademark, with the addition of term “endo”, which is composed of the last four letters of the NINTENDO trademark and the company name of Complainant. Complainant further asserts that Respondent lacks any rights or legitimate interests in the disputed domain name based on: the lack of any license or authorization from Complainant to Respondent to use the NINTENDO SWITCH Trademarks; the lack of any trademark registrations owned by Respondent; the lack of any evidence that Respondent is known by the term “switchendo”; and Respondent’s use of the disputed domain name in connection with the sale of Nintendo Switch user accounts in violation of Complainant’s terms of service applicable to all account holders. Complainant argues that Respondent has registered and is using the disputed domain name in bad faith for numerous reasons, including: Respondent’s use of the disputed domain name in connection with the sale of Nintendo Switch user accounts in violation of Complainant’s terms of service; Respondent’s misappropriation of Complainant’s logos and copywritten images from Complainant’s video games; and comments on Respondent’s website, specifically “you can get a ban [so] don’t take the games you want online…”, which demonstrate Respondent’s knowing violation of Complainant’s terms of service. B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings To succeed in its Complaint, Complainant must establish in accordance with paragraph 4(a) of the Policy: i. the disputed domain name is identical or confusingly similar to a trademark in which Complainant has rights; Although Respondent did not reply to Complainant’s contentions, the burden remains with Complainant to establish by a balance of probabilities, or a preponderance of the evidence, all three elements of paragraph 4(a) of the Policy. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 4.3 (“A respondent’s default would not by itself mean that the complainant is deemed to have prevailed; a respondent’s default is not necessarily an admission that the complainant’s claims are true. UDRP panels have been prepared to draw certain inferences in light of the particular facts and circumstances of the case, e.g. where a particular conclusion is prima facie obvious, where an explanation by the respondent is called for but is not forthcoming, or where no other plausible conclusion is apparent.”); The Vanguard Group, Inc. v. Lorna Kang,WIPO Case No. D2002-1064 (“The Respondent’s default does not automatically result in a decision in favor of the complainant. The Complainant must still prove each of the three elements required by Policy paragraph 4(a)”). A. Identical or Confusingly Similar Ownership of a nationally or regionally registered trademark serves as prima facie evidence that Complainant has trademark rights for the purposes of standing to file this Complaint. WIPO Overview 3.0 , section 1.2.1 . Complainant submitted evidence that the NINTENDO SWITCH Trademarks have been registered in multiple countries, including in the Russian Federation, with priority for the NINTENDO SWITCH trademark dating back to October 18, 2016, nearly five years before the disputed domain name was registered by Respondent. Thus, the Panel finds that Complainant’s rights in the NINTENDO SWITCH Trademarks have been established pursuant to the first element of the Policy. The only remaining question under the first element of the Policy is whether the disputed domain name is identical or confusingly similar to Complainant’s NINTENDO SWITCH Trademarks. In this Complaint, the disputed domain name is confusingly similar to Complainant’s NINTENDO SWITCH Trademarks because, disregarding the “.com” generic Top-Level Domain (“gTLD”), the SWITCH trademark is contained in its entirety within the disputed domain name. WIPO Overview 3.0 , section 1.7 . (“This test typically involves a side-by-side comparison of the domain name and the textual components of the relevant trademark to assess whether the mark is recognizable within the domain name … [I]n cases where a domain name incorporates the entirety of a trademark, or where at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered confusingly similar...”). The gTLDs, such as “.com” in the disputed domain name, are generally viewed as a standard registration requirement and are disregarded under the first element. WIPO Overview 3.0 , section 1.11 . This confusing similarity is not dispelled by combination with the term “endo”. WIPO Overview, section 1.8 (Additional terms “whether descriptive, geographic, pejorative, meaningless, or otherwise” do not prevent a finding of confusing similarity where the relevant trademark is recognizable within the disputed domain name); See also AT&T Corp. v. WorldclassMedia.com, WIPO Case No. D2000-0553 (“Each of the domain names in dispute comprises a portion identical to [the ATT trademark] in which the Complainant has rights, together with a portion comprising a geographic qualifier, which is insufficient to prevent the composite domain name from being confusingly similar to Complainant’s [ATT trademark]”); OSRAM GmbH v. Cong Ty Co Phan Dau Tu Xay Dung Va Cong Nghe Viet Nam,WIPO Case No. D2017-1583 (“[T]he addition of the letters ‘hbg’ to the trademark OSRAM does not prevent a finding of confusing similarity between the Disputed Domain Name and the said trademark.”). While the term “endo” is by itself meaningless, the facts and circumstances surrounding this Complaint make it clear that Respondent has intentionally telescoped Complainant’s individual SWITCH and NINTENDO trademarks to arrive at the confusingly similar term “switchendo” in the disputed domain name. In view of Complainant’s registration of the NINTENDO SWITCH Trademarks, Respondent’s incorporation of the SWITCH trademark in its entirety in the disputed domain name, and Respondent’s telescoping Complainant’s NINTENDO SWITCH trademarks into the confusingly similar term “switchendo”, the Panel concludes that Complainant has established the first element of the Policy. B. Rights or Legitimate Interests Complainant must make out a prima facie case that Respondent lacks rights or legitimate interests in the disputed domain name, shifting the burden of production on this element to Respondent to come forward with evidence demonstrating such rights or legitimate interests. Specifically, Complainant alleges that Respondent’s use of the disputed domain name to facilitate the sale of Nintendo Switch user accounts violates Complainant’s terms of service under which the accounts are created. Unrebutted purposeful use of the disputed domain name to enable violations of Complainant’s terms of service is not a bona fide use under the Policy. See e.g. Supercell Oy v. Reza Zarif,WIPO Case No. D2018-0503 (May 11, 2018) citing Supercell Oy v. WhoisGuard Protected, WhoisGuard, Inc. / Giacinto Napolitani,WIPO Case No. D2017-2064 (Respondent failed to rebut Complainant’s assertion that Respondent’s website, with a private modded server of Complainant’s video game, is illegitimate); Supercell Oy v. Ali Negahban Fard,WIPO Case No. D2017-0342. Where, as in this Complaint, Complainant makes out a prima facie case, and Respondent fails to come forward with any relevant evidence, Complainant is deemed to have satisfied the second element of the Policy. WIPO Overview, section 2.1. Furthermore, it is evident that Respondent, identified by registration data for the disputed domain name as “Svetlana Greegorieva”, is not commonly known by the disputed domain name or Complainant’s NINTENDO SWITCH Trademarks. In view of the absence of any evidence supporting rights or legitimate interests in the disputed domain name, and Complainant’s unrebutted evidence and arguments that Respondent intentionally uses the disputed domain name to sell Nintendo Switch user accounts in contravention of Complainant’s terms of service, the Panel concludes that Complainant has established the second element of the Policy. C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy proscribes the following non-exhaustive circumstances as evidence of bad faith registration and use of the disputed domain name: i. circumstances indicating that Respondent has registered or Respondent has 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 to a competitor of that 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 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 Respondent’s website or location. The unrebutted purposeful use of the disputed domain name to enable violations of Complainant’s terms of service serves as strong evidence of bad faith registration and use under the Policy. See Supercell Oy v. WhoisGuard Protected, WhoisGuard, Inc. / Giacinto Napolitani,WIPO Case No. D2017-2064 (Respondent’s website, with a private modded server of Complainant’s video game, “is enabling violations of Complainant’s terms of service causing bans, termination of licenses and other negative consequences to the users of its website”); Supercell Oy v. Nathan Kupp / Domains By Proxy, LLC,WIPO Case No. D2016-0243 (April 11, 2016) (Respondent’s bot, enabling certain aspects of Complainant’s video game to be played in an automated manner, “disrupts the Complainant’s game by helping the Complainant’s users breach the Complainant’s terms of service … thereby exposing them to bans and other sanctions,” and Respondent’s sale of user accounts for Complainant’s video game is “also in breach of the Complainant’s terms of service…”). In this Complaint, it is clear that Respondent registered the disputed domain name with a single goal in mind, namely to take advantage of the similarity of the disputed domain name with the NINTENDO SWITCH Trademarks in order to enable the sale of Nintendo Switch user accounts (an activity which is also in contravention of Complainant’s terms of service). Comments on Respondent’s website only reinforce this conclusion in that they warn users that their accounts may get disabled or banned by Complainant. Moreover, based on Respondent’s website, and Respondent’s telescoping of Complainant’s SWITCH NINTENDO Trademarks into the term “switchendo”, the Panel infers that Respondent was aware of Complainant and Complainant’s NINTENDO SWITCH Trademarks when it registered the disputed domain name in bad faith. Finally, the Panel notes that all attempts to serve the Complaint on Respondent ultimately failed. Electronic correspondence to the email points of contact provided by Respondent on its website and in the registration data for the disputed domain name were all bounced back. Physical correspondence to the address provided by Respondent in the registration data for the disputed domain name was returned as an undeliverable “bad address”. Juxtaposed with the facts and circumstances in this Complaint, this multitude of failed delivery attempts is not coincidental. Respondent has clearly used false or inaccurate contact information. And the use of false registration data in connection with a disputed domain name further supports a finding of bad faith registration and use. See e.g. Action Instruments, Inc. v. Technology Associates,WIPO Case No. D2003-0024 (“Providing false contact information violates paragraph 2 of the Policy, which requires a registrant to represent that the statements it ‘made in [its] Registration Agreement are complete and accurate.’ Maintaining that false contact information in the WHOIS records (which can easily be updated at any time) after registration constitutes bad faith use of the domain name because it prevents a putative complainant from identifying the registrant and investigating the legitimacy of the registration.”); Royal Bank of Scotland Group v. Stealth Commerce,WIPO Case No. D2002-0155; Home Director, Inc. v. HomeDirector,WIPO Case No. D2000-0111. In view of the composition of the disputed domain name, Complainant’s unrebutted evidence and arguments that Respondent intentionally uses the disputed domain name to enable the sale of Nintendo Switch user accounts in contravention of Complainant’s terms of service, and Respondent’s use of false or inaccurate domain name registration data, the Panel concludes that Complainant has established the third element 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 disputed domain name Phillip V. Marano
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.
Sole Panelist
Date: June 21, 2021
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