The Complainant is Safepay Malta Limited of Ta'Xbiex, Malta, represented by Domain and Intellectual Property Consultants, Dipcon AB, Sweden.
The Respondent is Domain Admin, PrivacyP of Nobby Beach, Queensland, Australia / Isen Murtishi of Gostivar, Republic of Macedonia. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with PDR Ltd. d/b/a PublicDomainR (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 6, 2013. On September 6, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On September 7, 2013, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on September 11, 2013, 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 September 13, 2013.
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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 18, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was October 8, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 10, 2013.
The Center appointed Michelle Brownlee as the sole panelist in this matter on October 23, 2013. 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 owns European Community Trade Mark Registration Numbers 7214059 for BETSAFE in connection with advertising and business services in International Class 35 (registered on February 3, 2011), 8585648 for BETSAFE.COM and design in connection with computer software for games of chance, gaming and betting in International Class 9 (registered on May 3, 2010), providing access to network systems for multiple users for access to gaming and betting information and services via television, the Internet, other networks and other media or communications channels in International Class 38, and gaming and betting services in International Class 41, and 11385036 for BETSAFE in connection with a wide range of goods and services in International Classes 9, 41 and 42 (registered on June 17, 2013).
The Domain Name was registered on September 20, 2011. 5. Parties’ Contentions A. Complainant
The Complainant has been operating a well-known game site at the “www.m” since January 2006. The Complainant provides online gambling services using the trademark BETSAFE. The Complainant is one of the leading suppliers of online gaming products worldwide, with over 450,000 customers from over 100 different countries.
The Complainant contends that the Domain Name is identical or confusingly similar to its BETSAFE and BETSAFE.COM trademarks. The Complainant argues that the Respondent has no rights to or legitimate interests in respect of the Domain Name. The Complainant alleges that the Respondent is using the Domain Name in connection with a web site that promotes betting, gaming and gambling products and services which are directly competitive with the Complainant’s services. The Complainant also argues that the Domain Name was registered and is being used in bad faith. The Complainant argues that the direction of the Domain Name to a competitive web site implies that the Respondent is aware of the Complainant’s trademarks and business. The Complainant notes that the Domain Name is a common typing error that Internet users might make when looking for the Complainant’s web site. The Complainant states that it sent a cease and desist letter to the Respondent on June 20, 2013, and received no response. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy provides that in order to be entitled to a transfer of a domain name, a complainant must prove the following three elements:
(1) the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(2) the respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The Complainant has demonstrated that it owns rights in the trademark BETSAFE. The second level of the Domain Name is identical to the trademark. Accordingly, the Panel finds that the Domain Name is identical to a trademark in which the Complainant has rights. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides that a respondent can demonstrate rights to or legitimate interests in a domain name by demonstrating one of the following facts:
(i) before receiving any notice of the dispute, the respondent used or made demonstrable preparations to use the domain name at issue in connection with a bona fide offering of goods or services; or
(ii) the respondent has been commonly known by the domain name; or
(iii) the respondent is making a legitimate noncommercial or fair use of the domain name without intent for commercial gain, to misleadingly divert consumers or to tarnish the trademark at issue.
In this case, the Respondent has not presented evidence that the Respondent used or made demonstrable preparations to use the Domain Name in connection with a bona fide offering of goods or services; that the Respondent is commonly known by the Domain Name; that the Respondent is making a legitimate noncommercial or fair use of the Domain Name; or in any other way refuted the Complainants’ prima facie case.
The Complainant has presented evidence, which was not refuted by the Respondent, that the Respondent is using the Domain Name to promote a web site that offers services that are directly competitive with the services offered by the Complainant. This activity cannot under the circumstances be considered a bona fide offering of goods or services. Accordingly, the Panel finds that the Respondent does not have any rights or legitimate interests in the Domain Name. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states that the following circumstances are evidence of registration and use of a domain name in bad faith:
(i) circumstances indicating that the respondent has registered or acquired the domain name at issue 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 documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent 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 of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its web site or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its web site or location or of a product or service on its web site or location.
The Complainant has established bad faith under paragraph 4(b)(iv) of the Policy. The Complainant has demonstrated that the Respondent is using the Domain Name to promote a competitive web site by creating a likelihood of confusion with the Complainant’s BETSAFE mark and web site. This activity presumably results in commercial gain to the Respondent. Thus, the Panel finds that the Respondent registered and is using the Domain Name in bad faith. 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 Domain Name be transferred to the Complainant.
Michelle Brownlee
Sole Panelist
Date: November 5, 2013
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