The Complainant is Merryvale Limited, Guernsey, represented by Herzog, Fox & Neeman, Israel.
The Respondent is Gera Safin, Russian Federation.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 9, 2021. On June 9, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On June 10, 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 the Complainant on June 18, 2021 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 June 20, 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 the Respondent of the Complaint, and the proceedings commenced on July 1, 2021. In accordance with the Rules, paragraph 5, the due date for Response was July 21, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 11, 2021.
The Center appointed Martin Schwimmer as the sole panelist in this matter on August 16, 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 BackgroundThe Complainant has operated online gaming websites utilizing the trademark SPINCASINO since 2014 and owns registrations reflecting the SPINCASINO trademark, including, for example, New Zealand trademark registration number 1038829, registered on September 9, 2016. It asserts it is one of the ten largest online gaming websites in the world and estimates its current annual revenue to be over EUR 140 million.
The Disputed Domain Name
The Complainant, Merryvale Limited, is a member of the Betway group of companies and operates online gaming websites using the name and marks SPINCASINO. The Complainant owns several trademark registrations and applications for the SPINCASINO mark, both as a word and figurative mark, in connection with its services in various jurisdictions.
The Complainant also owns and uses the domain names
The Respondent registered the Disputed Domain Name on February 2, 2021. The Disputed Domain Name has been used in connection with an online gaming website that featured the name “Spin-Casino”. The Disputed Domain Name was suspended by the Registar after the Complainant’s filing of an abuse report.
The Respondent is not affiliated with the Complainant and is not authorized to use the trademark or the Disputed Domain Name in any manner. The use of a nearly identical version of the Complainant’s trademark for competitive services cannot be a legitimate offering of goods or services.
In view the Complainant’s reputation, the Respondent knew or should have known about the Complainant’s reputation in its SPINCASINO trademark.
The Respondent intentionally attempted to attract Internet users to the Website for commercial gain, by creating a likelihood of confusion with the Complainant’s trademarks.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings A. Identical or Confusingly SimilarThe Complainant claims to own rights in the trademark SPINCASINO by virtue of the Complainant’s use of the SPINCASINO mark since 2014 in relation to an online gaming website and by virtue of the Complainant’s trademark registrations for SPINCASINO and a figurative version of SPINCASINO since 2015.
The Complainant has demonstrated use of its SPINCASINO trademark at its website “www.spincasino.com”. It has also provided extracts from “www.web.archive.org” demonstrating use of its trademark back to 2014.
The Panel is satisfied based on the evidence submitted that the Complainant has registered and common law rights in the SPINCASINO mark prior to the Respondent’s registration of the Disputed Domain Name in 2021.
The Disputed Domain Name incorporates the SPINCASINO trademark in its entirety, simply adding a hyphen and the letter “s”. 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). Furthermore, pluralizing a trademark does not avoid confusing similarity between a disputed domain name and a trademark (see, e.g., Dr. Ing. h.c. F. Porsche Aktiengesellschaft v. John Smith,WIPO Case No. D2014-1859). The Panel therefore finds that the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy in establishing its rights in the Complainant’s SPINCASINO mark and in showing that the Disputed Domain Name is confusingly similar to that trademark.
B. Rights or Legitimate InterestsUnder paragraph 4(a)(ii) of the Policy, the complainant must make at least a prima facie showing that the respondent possesses no rights or legitimate interests in a disputed domain name (see, e.g., Malayan Banking Berhad v. Beauty, Success & Truth International,WIPO Case No. D2008-1393). Once the complainant makes such a prima facie showing, the burden of production shifts to the respondent, though the burden of proof always remains on the complainant. If the respondent fails to come forward with evidence showing rights or legitimate interests, the complainant will have sustained its burden under the second element of the UDRP.
The Complainant asserts that the Respondent is not affiliated with the Complainant and has never been licensed or otherwise authorized to use the SPINCASINO trademark.
The Respondent obtained the Disputed Domain Name, on a date well after the Complainant had secured rights in the distinctive SPINCASINO mark in connection with online gaming services. The Respondent has used the Disputed Domain Name to attract web users to its website for purposes of offering competing online gaming services. Such use of the Disputed Domain Name for competing services does not and cannot constitute a legitimate use and is opportunistic. This is particularly so given that the Disputed Domain Name reflects a nearly identical version of the Complainant’s SPINCASINO mark, and is likely to be seen by Internet users as referring to the Complainant and/or a service offered by the Complainant
Given that the Complainant has established with sufficient evidence that it owns rights in the SPINCASINO mark and prima facie case, and given the Respondent’s above noted actions and failure to file a response, the Panel concludes that the Respondent does not have rights or legitimate interests in the Disputed Domain Name and that none of the circumstances of paragraph 4(c) of the Policy are evident in this case.
C. Registered and Used in Bad FaithThe Complainant has supplied evidence of widespread and successful use of its distinctive SPINCASINO trademark in relation to online gaming services. Other UDRP panels have recognized the Complainant’s rights in the SPINCASINO trademark. See Merryvale Limited v. WhoisGuard Protected, WhoisGuard, Inc. / Elias Kuismanen,WIPO Case No. D2020-2381; Merryvale Ltd. v. Sergei,WIPO Case No. D2020-2185; and Merryvale Limited v. Pavel Kolosov,WIPO Case No. D2020-3010.
In view of the Respondent’s actions, and its failure to appear in this proceeding, it is easy to infer that the Respondent’s registration and use of the Disputed Domain Name, which consists of a nearly identical version of the Complainant’s SPINCASINO mark, have been done opportunistically and in bad faith for purposes of attracting Internet users to the Respondent’s website to offer competing online gaming services. It is beyond coincidence that the Respondent could have selected the Disputed Domain Name without prior knowledge of the Complainant’s reputation in its trademark for online gaming services.
The Panel thus finds that the Complainant succeeds under this element of the Policy
7. DecisionFor 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,
Martin Schwimmer
Sole Panelist
Date: September 6, 2021