The Complainant is Merryvale Limited, United Kingdom, represented by Herzog, Fox & Neeman, Israel.
The Respondent is Lakisha Moore, United States of America.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 9, 2021. On December 9, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 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 December 10, 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 December 12, 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 December 13, 2021. In accordance with the Rules, paragraph 5, the due date for Response was January 2, 2022. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 5, 2022.
The Center appointed Tuukka Airaksinen as the sole panelist in this matter on January 13, 2022. 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 is a member of the Betway group of companies, which offers services in the field of online gaming and sport betting. The Complainant entered the online gaming market in 2006 and had some 1.98 million users worldwide in 2021.
The Complainant is the owner of the trademark BETWAY, registered in various countries, such as in the European Union under No. 4832325 as of January 26, 2007.
The disputed domain name was registered on April 16, 2021, which resolves to a website with gambling and pornographic content in Chinese.
5. Parties’ Contentions A. ComplainantThe disputed domain name is identical and confusingly similar to the Complainant’s trademark as it consists only of the trademark BETWAY, with an insignificant addition of the letter “f”, which does not alter the confusing similarity between the disputed domain name and the Complainant’s trademark.
The Respondent is not affiliated with the Complainant and has never been licensed or otherwise authorized to use the Complainant’s trademark. The Respondent has not used, or made demonstrable preparations to use the disputed domain name in connection with bona fide offering of goods or services.
The Respondent is offering services similar to some of the services of the Complainant under the disputed domain name. The website to which the disputed domain name resolves also contains pornographic content and hence the Respondent has attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s trademark.
The Complainant has used and registered its trademark long before the Respondent registered the disputed domain name. At the time of registration of the disputed domain name, the Complainant’s trademark was already a famous brand that had been used for over fifteen years.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and FindingsIn order to obtain the transfer of a domain name, a complainant must prove the three elements of paragraph 4(a) of the Policy, regardless of whether the respondent files a response to the complaint or not. The first element is that the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights. The second element a complainant must prove is that the respondent has no rights or legitimate interests in respect of the domain name. The third element a complainant must establish is that the domain name has been registered and is being used in bad faith.
A. Identical or Confusingly SimilarParagraph 4(a)(i) of the Policy requires that the Complainant establish that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights. Consequently, the Complainant must prove that it has rights to a trademark, and that the disputed domain name is identical or confusingly similar to this trademark.
According to section 1.11.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), “[t]he 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”.
Furthermore, “where the relevant trademark is recognizable within the disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element. The nature of such additional term(s) may however bear on assessment of the second and third elements”. See section 1.8 of the WIPO Overview 3.0.
The disputed domain name is confusingly similar to the Complainant’s trademark as it includes the Complainant’s trademark in its entirety added with the letter “f”. This simple addition does not prevent confusing similarity between the Complainant’s trademark and the disputed domain name.
This means that the disputed domain name is confusingly similar with the Complainant’s trademark and hence the first element of the Policy has been fulfilled.
B. Rights or Legitimate InterestsParagraph 4(a)(ii) of the Policy requires that the Complainant establish that the Respondent has no rights or legitimate interests to the disputed domain names.
It is widely accepted among UDRP panels that once a complainant has made a prima facie indicating the absence of the respondent’s rights or legitimate interests in a disputed domain name the burden of production shifts to the respondent to come forward with evidence of such rights or legitimate interests. If the respondent fails to do so, the complainant is deemed to have satisfied the second element of the Policy. See, e.g., Document Technologies, Inc. v. International Electronic Communications Inc.,WIPO Case No. D2000-0270, and section 2.1 of the WIPO Overview 3.0.
The Complainant has credibly submitted that the Respondent is neither affiliated with the Complainant in any way nor has it been authorized by the Complainant to use and register the disputed domain names, that the Respondent has no rights or legitimate interests in the disputed domain names, and that the Respondent has not made and is not making a legitimate noncommercial or fair use of the disputed domain names, and is not commonly known by the disputed domain names in accordance with paragraph 4(c)(ii) of the Policy.
The disputed domain name resolves to a website offering online gaming services in direct competition to the Complainant, as well as adult content. Such use does not amount to a noncommercial bona fide offering of services and reflects the Respondent’s intent to misdirect users for its commercial gain via the confusingly similar disputed domain name.
Accordingly, the Panel finds that the Complainant has made a prima facie case that has not been rebutted by the Respondent. Considering the Panel’s findings below, the Panel finds that there are no other circumstances that provide the Respondent with any rights or legitimate interests in the disputed domain names. Therefore, the Panel finds that the second element of the Policy is fulfilled.
C. Registered and Used in Bad FaithParagraph 4(a)(iii) of the Policy requires that the Complainant to establish that the disputed domain name has been registered and is being used in bad faith. Paragraph 4(b) of the Policy provides that 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 trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of [the respondent’s] 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 trademark 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 or competitor; or
(iv) by using the domain name, [the respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the respondent’s] 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.
The Panel agrees with the Complainant that its trademark is a well-known trademark within the gaming industry. It is therefore inconceivable that the Respondent would not have been aware of the Complainant’s trademark when registering the disputed domain name.
The disputed domain name resolves to a website offering services in Chinese, which appear to relate to gaming or betting services in competition with the Complainant. The website also features adult content that tarnishes the Complainant’s trademark, which has been found by previous UDRP panels to constitute evidence of registration and use of a domain name in bad faith. See section 3.12 of the WIPO Overview 3.0.
It is therefore evident that the Respondent has registered the disputed domain name to intentionally attract, for commercial gain, Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s mark as to the source, affiliation, or endorsement of the Respondent’s website.
Therefore, the Panel finds that the third element of the Policy is fulfilled.
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,
Tuukka Airaksinen
Sole Panelist
Date: January 27, 2022