The Complainant is Rivers IP Holdings, LLC, United States of America (“United States”), represented by Cavelier Abogados, Colombia.
The Respondent is Mike, Canada.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 8, 2021. On November 8, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 9, 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 November 29, 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 amendment to the Complaint on November 29, 2021.
The Center verified that the Complaint together with the amendment to the 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 6, 2021. In accordance with the Rules, paragraph 5, the due date for Response was December 26, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 28, 2021.
The Center appointed Steven A. Maier as the sole panelist in this matter on February 1, 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 limited liability company incorporated in Delaware, United States. It is a developer and operator of online betting and casino games and services.
The Complainant is the owner of trademark registrations for the mark BETRIVERS in various territories. The earliest such registration of which the Complainant provides evidence is United States trademark registration number 6054929 for the word mark BETRIVERS, registered on May 12, 2020 with a filing date of June 20, 2019.
The disputed domain name was registered on October 3, 2019.
According to evidence provided by the Complainant, the disputed domain name has resolved to a website at “www.betrivers.co”, which appears to be a pay-per-click (“PPC”) website offering links to services including betting services.
5. Parties’ Contentions A. ComplainantThe Complainant refers to its trademark registrations and states that it has made extensive use of its BETRIVERS trademark. It evidences such use by the inclusion in the Complaint of screen shots and links to certain websites. Information on such a website at “www.bettingusa.com” states that: “BetRivers entered the retail sports betting space in 2018, shortly after the federal ban on sports betting was repealed. It quickly expanded into mobile sports betting in 2019”. The Complainant’s other relevant exhibits comprise reports of press announcements dated 2021.
The Complainant submits that the disputed domain name is identical to its BETRIVERS trademark.
The Complainant submits that the Respondent has no rights or legitimate interests in respect of the disputed domain name. It submits that it has never authorized the Respondent to use its BETRIVERS trademark, that the Respondent has not commonly been known by that name and that the Respondent is making neither bona fide commercial nor legitimate noncommercial or fair use of the disputed domain name. Instead, the Complainant contends that the Respondent is using the disputed domain name misleadingly to divert Internet users to its PPC website in order to generate revenue.
The Complainant submits that the disputed domain name has been registered and is being used in bad faith. It contends that the disputed domain name will inevitably lead members of the public to believe that it relates to the Complainant’s official website for Colombia, being the territory signified by the “.co” country code
Top-Level Domain (“ccTLD”). The Complainant repeats that the Respondent is using the disputed domain name to divert Internet users to a PPC website and states that this includes links to competitors of the Complainant. It also submits that the Respondent’s registration of the disputed domain name behind a privacy service is evidence of an attempt in bad faith to hide its identity.
The Complainant requests the transfer of the disputed domain name.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and FindingsIn order to succeed in the Complaint, the Complainant is required to show that all three of the elements set out under paragraph 4(a) of the Policy are present. Those elements are that:
(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 SimilarThe Complainant has established that it has registered trademark rights in the mark BETRIVERS. The disputed domain name is identical to that trademark, ignoring the ccTLD “.co” which is typically to be disregarded for the purpose of comparison. The Panel therefore finds that the disputed domain name is identical to a trademark in which the Complainant has rights.
B. Rights or Legitimate InterestsIn the view of the Panel, the Complainant’s submissions set out above give rise to a prima facie case that the Respondent has no rights or legitimate interests in respect of the disputed domain name. However, the Respondent has failed to file any Response in this proceeding and has not submitted any explanation for its registration and use of the disputed domain name, or evidence of rights or legitimate interests on its part in the disputed domain name, whether in the circumstances contemplated by paragraph 4(c) of the Policy or otherwise. While the Respondent has used the disputed domain name to resolve to a PPC website, this does not give rise to rights or legitimate interests in circumstances where the disputed domain has been used to take unfair commercial advantage of the Complainant’s trademark. As discussed below, the Panel finds that the Respondent has targeted the Complainant’s trademark in such a manner and the Panel finds, therefore, that the Respondent has no rights or legitimate interests in respect of the disputed domain name
C. Registered and Used in Bad FaithThe requirement under paragraph 4(a)(iii) of the Policy is a conjunctive requirement to establish both that the disputed domain name was registered in bad faith and that it has been used in bad faith. Furthermore, to establish registration in bad faith, it is clearly established in jurisprudence under the UDRP that the registrant of the relevant domain name must have been aware of, and have intended to target, the relevant complainant’s trademark at the time of registration of the domain name. This cannot be the case where the relevant domain name was registered prior to the registration or any use of the trademark relied upon.
In this case, the disputed domain name was registered on October 3, 2019. The earliest trademark registration on which the Complainant relies is dated May 12, 2020, although with a filing date of June 20, 2019. While the filing date precedes the date of registration of the disputed domain name, this is insufficient in itself to demonstrate the Respondent’s actual knowledge of the Complainant’s trademark at that date: see e.g. section 3.2.2 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). Since “constructive notice” of a trademark registration is insufficient for this purpose, it is clear that the such notice of a mere filing is of even less significance.
For that reason, the Complainant cannot succeed in its Complaint in the absence of evidence of use of the BETRIVERS name and mark in commerce, prior to October 3, 2019, in a manner that could give rise to unregistered trademark rights in that name. In this regard, the Complainant’s evidence is unsatisfactory to say the least, consisting only of the statement found on the “www.bettingusa.com” website referred to above, to the effect that the Complainant used the name BETRIVERS for retail sports betting from 2018 and expanded into mobile sports betting in 2019. Having however conducted its own Google search against the name BETRIVERS, limited to dates prior to October 3, 2019, it appears to the Panel that the Complainant offered betting services online at “www.betrivers.com”1 from June or July 2019, and it is unclear why no evidence to this effect is included in the Complaint.
While the Complainant’s evidence is unsatisfactory for these reasons, the Panel finds it plausible, in view of the circumstances referred to above, that the Respondent was aware of the Complainant’s use of the name BETRIVERS for betting services at the date it registered the disputed domain name. The Panel also weighs against the paucity of the Complainant’s evidence the fact that it finds the mark BETRIVERS be distinctive, having no obvious dictionary meaning or commercial profile other than in connection with the Complainant’s business. Noting also that the disputed domain name is identical to the Complainant’s trademark and the fact that the Respondent has provided no explanation for its choice of the disputed domain name, the Panel infers, on balance, that the Respondent is likely to have registered the disputed domain name in the knowledge of the Complainant’s trademark and with the intention of taking unfair commercial advantage of that trademark.
Concerning the Respondent’s use of the disputed domain name, the Panel finds the disputed domain name to be inherently misleading and to be likely to suggest to Internet users that it is owned or operated by, or otherwise associated with, the Complainant. The disputed domain name having been used for the purpose of a PPC website which includes links to betting services, the Panel finds that, by using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s trademarks as to the source, sponsorship, affiliation, or endorsement of its website or of a product or service on its website (paragraph 4(b)(iv) 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,
Steven A. Maier
Sole Panelist
Date: February 14, 2022
1 The Panel conducted this search in exercise of its general powers under paragraphs 10 and 12 of the Rules for Uniform Domain Name Dispute Resolution Policy (“the Rules”).