ARBITRATION AND MEDIATION CENTER ADMINISTRATIVE PANEL DECISION Finnplay Technologies Oy v. 汤洲 (tang zhou) Case No. D2024-3106 1. The Parties The Complainant is Finnplay Technologies Oy, Finland, represented by Abion AB, Sweden. The Respondent is 汤洲 (tang zhou), China. 2. The Domain Name and Registrar The disputed domain name is registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) (the “Registrar”). 3. Procedural History The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on July 30, 2024. On the same day, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 31, 2024, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name that differed from the named Respondent (N/A) and contact information in the Complaint. The Center sent an email communication to the Complainant on the same day 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 in English on the same day. On July 31, 2024, the Center informed the Parties in Chinese and English, that the language of the Registration Agreement for the disputed domain name is Chinese. On the same day, the Complainant requested English to be the language of the proceeding. The Respondent did not submit any comment on the language of the proceeding. 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 in Chinese and English of the Complaint, and the proceedings commenced on August 6, 2024. In accordance with the
page 2 Rules, paragraph 5, the due date for Response was August 26, 2024. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 27, 2024. The Center appointed Matthew Kennedy as the sole panelist in this matter on August 29, 2024. 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 Finnish software development company specializing in applications for the iGaming industry with customers around the world. Founded in 2008, the Complainant is a provider of iGaming platform technology and services. It owns trademark registrations in multiple jurisdictions, including the following: - European Union trademark number 011515566 for FINNPLAY registered on May 15, 2013 in respect of services in classes 41, 42, and 45; and - European Union trademark number 018849210 for FINNPLAY, registered on July 5, 2023 in respect of goods and services in classes 9, 35, and 38. The above trademark registrations are current. The Complainant has also registered the domain name that it uses in connection with its website where it provides information about its FINNPLAY product and services. The Complainant operates social media accounts, including an account named “Finnplay” on X (formerly Twitter). The Respondent is an individual based in China. The disputed domain name was registered on February 28, 2024. According to evidence presented by the Complainant, the disputed domain name resolved on May 24, 2024 to a website in English that offered online games. The website prominently displayed a “Finnplays” logo (with an “s”) and third party advertising. On July 25, 2024, the Complainant sent a cease-and-desist letter to the Registrar to be forwarded to the Respondent. At the time of this proceeding, the disputed domain name does not resolve to any active website; rather, it is passively held. 5. Parties’ Contentions A. Complainant The Complainant contends that it has satisfied each of the elements required under the Policy for a transfer of the disputed domain name. Notably, the Complainant contends that the disputed domain name is confusingly similar to the Complainant’s FINNPLAY mark. The Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant has not licensed or authorized the Respondent to register or use the disputed domain name, nor is the Respondent affiliated to the Complainant in any form. The disputed domain name has been registered and is being used in bad faith. The structure of the disputed domain name shows that the Respondent registered it having the Complainant and its FINNPLAY trademark in mind. The Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by
page 3 creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1 Language of the Proceeding The language of the Registration Agreement for the disputed domain name is Chinese. Pursuant to the Rules, paragraph 11(a), in the absence of an agreement between the parties, or unless specified otherwise in the registration agreement, the language of the administrative proceeding shall be the language of the registration agreement. The Complaint and amended Complaint were filed in English. The Complainant requested that the language of the proceeding be English for several reasons, including the fact that the disputed domain name comprises words in English, and the associated website displays content in English, from which it can be inferred that the Respondent can communicate in that language. Further, if the Complainant had to translate the Complaint into a different language, such translation would entail significant additional costs for the Complainant and delay in the proceeding. The Respondent did not make any submission with respect to the language of the proceeding. In exercising its discretion to use a language other than that of the registration agreement, the Panel has to exercise such discretion judicially in the spirit of fairness and justice to both parties, taking into account all relevant circumstances of the case, including matters such as the parties’ ability to understand and use the proposed language, time and costs. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 4.5.1. Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that the language of the proceeding shall be English. The Panel would have accepted a Response in Chinese, but none was filed. 6.2 Substantive Issues Paragraph 4(a) of the Policy provides that a complainant must prove each of the following elements: (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and (ii) the 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. A. Identical or Confusingly Similar It is well accepted that the first element functions primarily as a standing requirement. The standing (or threshold) test for confusing similarity involves a reasoned but relatively straightforward comparison between the Complainant’s trademark and the disputed domain name. See WIPO Overview 3.0, section 1.7. The Complainant has shown rights in respect of the FINNPLAY trademark for the purposes of the Policy. See WIPO Overview 3.0, section 1.2.1.
page 4 The entirety of the FINNPLAY mark is reproduced within the disputed domain name. The disputed domain name adds the letter “s” but the FINNPLAY mark remains clearly recognizable within the disputed domain name. The only other element in the disputed domain name is a generic Top-Level Domain (“gTLD”) suffix (“.com”) which, as a standard requirement of domain name registration, may be disregarded in the assessment of confusing similarity for the purposes of the Policy. Accordingly, the disputed domain name is confusingly similar to the mark for the purposes of the Policy. See WIPO Overview 3.0, sections 1.7, 1.8, and 1.11. Therefore, the Panel finds the first element of the Policy has been established. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy provides a list of circumstances in which the Respondent may demonstrate rights or legitimate interests in a disputed domain name. Although the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the difficult task of “proving a negative”, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name (although the burden of proof always remains on the complainant). If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element. See WIPO Overview 3.0, section 2.1. In the present case, the Respondent formerly used the disputed domain name, which is confusingly similar to the Complainant’s FINNPLAY mark, in connection with a website that offered online games, which is similar to the type of products that the Complainant provides. This creates a risk of confusion regarding a possible affiliation between the Respondent’s website and its online games, on one hand, and the Complainant and its products, on the other hand. However, the Complainant confirms that it has not licensed or authorized the Respondent to register or use the disputed domain name, and that the Respondent is not affiliated with the Complainant in any form. At the time of this proceeding, the disputed domain name is passively held. In view of these circumstances, the Panel does not consider either of these uses to constitute a use in connection with a bona fide offering of goods or services for the purposes of the Policy. Given that the Respondent’s website displays third party advertising, it is clearly operated for commercial gain and is not a legitimate noncommercial or fair use of the disputed domain name. Further, the Registrar has confirmed that the Respondent’s name is 汤洲 (tang zhou), not the disputed domain name. Nothing on the record indicates that the Respondent has been commonly known by the disputed domain name. Having reviewed the available record, the Panel finds the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. The Respondent has not rebutted the Complainant’s prima facie showing and has not come forward with any relevant evidence demonstrating rights or legitimate interests in the disputed domain name such as those enumerated in the Policy or otherwise. Based on the record, the Panel finds the second element of the Policy has been established. C. Registered and Used in Bad Faith The Panel notes that, for the purposes of paragraph 4(a)(iii) of the Policy, paragraph 4(b) of the Policy establishes circumstances that, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith. The fourth of these is as follows:
page 5 “(iv) by using the [disputed] 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] web site or location.” The list of circumstances in paragraph 4(b) is non-exhaustive. Other circumstances may also be relevant in assessing whether a respondent’s registration and use of a domain name is in bad faith. See WIPO Overview 3.0, section 3.2.1. In the present case, the disputed domain name wholly incorporates the FINNPLAY mark, adding only a letter “s” and a gTLD suffix. Neither the mark nor the disputed domain name is a dictionary word or common phrase. Although the word “plays” is clearly related to the former content of the Respondent’s website, that does not explain the Respondent’s choice to register “Finnplays” in the disputed domain name. The Respondent formerly used the disputed domain name in connection with a website that offered online games, which is similar to the type of products that the Complainant provides. This gives the Panel reason to believe that the Respondent was aware of the Complainant’s FINNPLAY mark and products and had that mark in mind when it registered the disputed domain name. As regards use, the disputed domain name was formerly used in connection with a website that offered online games. In the Panel’s view, by using the disputed domain name in that way, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent’s website, by creating a likelihood of confusion with the Complainant’s FINNPLAY mark as to the affiliation of the Respondent’s website or of a product on the Respondent’s website within the terms of paragraph 4(b)(iv) of the Policy. The Panel takes note that the disputed domain name is now passively held. According to the evidence on record, the only active use that the Respondent has ever made of the disputed domain name was in bad faith (as described above). Given the composition of the disputed domain name and the active use that the Respondent has made of the disputed domain name, the Panel finds that the current passive holding does not prevent a finding of bad faith under the Policy. Therefore, the Panel finds that the 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 be transferred to the Complainant. /Matthew Kennedy/ Matthew Kennedy Sole Panelist Date: September 6, 2024
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