The Complainant is Take-Two Interactive Software, Inc. United States of America (“United States”) and
Take-Two Interactive GmbH, Germany represented by Kelley Drye & Warren, LLP, United States.
The Respondent is Auyhgf Awgega, Spain. 2. The Domain Name, Registry and Registrar
The Registry of the disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 13, 2020. On May 14, 2020, the Center transmitted by email to the Registry a request for registrar verification in connection with the disputed domain name. On May 19, 2020, the Registry 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 May 19, 2020, providing the registrant and contact information disclosed by the Registry, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on May 22, 2020. The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the .eu Alternative Dispute Resolution Rules (the “ADR Rules”) and the World Intellectual Property Organization Supplemental Rules for .eu Alternative Dispute Resolution Rules (the “Supplemental Rules”). In accordance with the ADR Rules, Paragraph B(2), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on May 26, 2020. In accordance with the ADR Rules, Paragraph B(3), the due date for Response was June 25, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 26, 2020. The Center appointed Fabrizio Bedarida as the sole panelist in this matter on July 3, 2020. 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 ADR Rules, Paragraph B(5). 4. Factual Background The Complainant is a leading worldwide publisher, developer, marketer, and distributor of interactive entertainment software and accessories, including video and computer games and online interactive video games, interactive video and online entertainment services, and a wide array of related goods and services. The Complainant’s goods and services are developed, marketed, and sold to consumers in the European Union and throughout the world. The Complainant, including through its affiliated companies, offers the Complainant’s goods and services under trade names, trademarks, and service marks comprising or containing the term TAKE TWO and variations thereof, including TAKE-TWO and TAKE2, used alone or with other words or designs worldwide (collectively, the “TAKE TWO Marks”). The Complainant has proven to have rights in the TAKE TWO Marks, which enjoy protection through several registrations. The Complainant has rights, inter alia, in the following trademarks: - European Union Trade Mark Registration no. 001217173 for T2 TAKE2 INTERACTIVE and design, filed on June 22, 1999, and registered on November 9, 2000; - European Union Trade Mark no. 003556198 for A TAKE2 COMPANY and design, filed on December 16, 2003, and registered on May 20, 2005; and - European Union Trade Mark no. 003556172 for T2 TAKE TWO and design, filed on November 26, 2003, and registered on April 27, 2005. Furthermore, the Complainant can be found online with its own websites at, inter alia, “www.take2games.com” (the main website), “www.take2games.co.uk”, and “www.take2games.com.au”. On or about the date on which the disputed domain name was registered, it redirected to the Complainant’s website “www.take2games.com”. The disputed domain name currently resolves to a parked hosting provider website that states that “It is possible you have reached this page because: “The IP address has changed”, “There has been a server misconfiguration”, and “The site may have moved to a different server”. The disputed domain name was registered on March 2, 2020. 5. Parties’ Contentions A. Complainant The Complainant claims that the disputed domain name is confusingly similar to the Complainant’s registered trademarks; that the Respondent has no rights or legitimate interests whatsoever with respect to the disputed domain name; and that the Respondent registered and is using the disputed domain name in bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1. Preliminary Issue: Consolidation of Complainants The Complainant in this proceeding is Take-Two Interactive Software, Inc. (“Take-Two”) and Take-Two Interactive GmbH (“Take-Two Germany”). These companies are directly related to one another, such that the activities and business of Take-Two and Take-Two Germany, including the adoption, use and registration of the trademarks owned by Take-Two, are under the same legal control, and Take-Two and Take-Two Germany share a common legal interest in the trademarks held by Take-Two as directly-related companies. Indeed, Take-Two Germany is a wholly-owned subsidiary based in Germany of Take-Two. It is well-established that consolidation is appropriate for a parent company and its wholly-owned subsidiary. Therefore, the Panel finds that there is sufficient evidence to support a consolidation of complainants and the consolidation would be equitable and procedurally efficient. Accordingly, Take-Two and Take-Two Germany are hereafter and throughout the decision jointly referred to as the “Complainant”. 6.2. Substantive Issues To succeed in its Complaint, the Complainant must show that the requirements of Article 21(1) of the Commission Regulation (EC) No. 874/2004 have been complied with. That paragraph reads as follows: “A registered domain name shall be subject to revocation, using an appropriate extra-judicial or judicial procedure, where that name is identical or confusingly similar to a name in respect of which a right is recognized or established by national and/or Community law, such as the rights mentioned in Article 10(1) of the Commission Regulation (EC) No. 874/2004, and where it: (a) has been registered by its holder without rights or legitimate interest in the name; or (b) has been registered or is being used in bad faith.” In addition, Article 22(10) of the Regulation and Paragraph B10(a) of the ADR rules provide that: “In the event that a Party does not comply with any of the time periods established by these ADR Rules or the Panel, the Panel shall proceed to a decision on the Complaint and may consider this failure to comply as grounds to accept the claims of the other Party”. A. Identical or Confusingly Similar to a name in respect of which a right or rights are recognized or established by national law of a Member State and/or Community law The Complainant has established rights in the TAKE TWO Marks. The disputed domain name reproduces the dominant feature of the TAKE TWO Marks, namely “take2”, in addition to the non-distinctive and descriptive word “games”, and the TAKE TWO Marks remain clearly recognizable within the disputed domain name. Pursuant to section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)1 which states: “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.” The Panel further notes that the redirection of the disputed domain name to the Complainant’s website affirms the confusing similarity (see section 1.15 of the WIPO Overview 3.0). Therefore, the Panel finds the disputed domain name to be confusingly similar to the TAKE TWO Marks in which the Complainant has rights. The Complainant has, therefore, satisfied the requirements of the first paragraph of Article 21(1) of the Commission Regulation (EC) No. 874/2004. B. Rights or Legitimate Interests The Complainant has further asserted that the Respondent is not known by the disputed domain name and does not hold any exclusive rights or rights of any nature to the disputed domain name. This Panel finds that the Complainant has made a prima facie case that the Respondent does not have rights or legitimate interests in the disputed domain name. The Respondent does not appear to be commonly known by the name “Take2games” or by any similar name. The Respondent has no connection to or affiliation with the Complainant, and the Complainant has not licensed or otherwise authorized the Respondent to use or register any domain name incorporating the Complainant’s trademark. The Respondent does not appear to make any legitimate noncommercial or fair use of the disputed domain name, nor any use in connection with a bona fide offering of goods or services. These assertions are not contradicted by the Respondent. Should the Respondent have rights or legitimate interests to the disputed domain name, the Panel assumes that it would have advised the Panel of the same. As no response was filed and the Complainant’s prima facie case has not been rebutted, the Panel therefore accepts that the Respondent does not have rights or legitimate interests to the disputed domain name. In the absence of any submission on the issue from the Respondent, the Complainant has satisfied the requirements of Article 21(1)(a) of the Commission Regulation (EC) No. 874/2004. C. Registered or Used in Bad Faith The Complainant has sufficiently met the criteria for the second condition under Article 21(1)(a) of the of the Commission Regulation (EC) No. 874/2004, and it is therefore unnecessary for the Complainant to also satisfy the third condition. Furthermore, it is not necessary for the Panel to examine the Complainant’s assertions of the Respondent’s bad faith registration or use of the disputed domain name. This Panel notes however that the Complainant has provided sufficient and solid arguments and evidence to also indicate the Respondent’s bad faith in registering and using the disputed domain name. The Panel finds that the Respondent was most likely aware of the Complainant’s trademarks and of the existence of the Complainant and its activity. In fact, the disputed domain name (apparently on or about the date on which the disputed domain name was registered) redirected to the Complainant’s official website, “www.take2games.com”. In addition, the disputed domain name is identical, but for the country code Top-Level Domain (“ccTLD”), to the Complainant’s domain name Furthermore, this Panel finds that the use of the additional word “games” in the disputed domain name further affirms the Respondent’s knowledge of the Complainant’s trademark, because the Complainant’s goods and services are mostly related to games (computer and video games). This Panel finds that, on the balance of probabilities, the above shows that the choice of the disputed domain name cannot be a coincidence, and thus indicates the Respondent’s knowledge of the Complainant’s trademark and activity when registering the disputed domain name. The Respondent’s use of the disputed domain name to redirect to the Complainant’s website without having asked for, still less obtained, any proper authorization is also an inference of bad faith. Further inference of bad faith registration and use of the disputed domain name is given by the fact that it also appears that the Respondent’s postal address is, at the least, incorrect, if not false. Therefore, the Panel finds that the disputed domain name has been registered and is being used in bad faith, and that consequently, the third condition of Article 21(1) of the Commission Regulation (EC) No. 874/2004 is fulfilled. 7. Decision For the foregoing reasons, in accordance with Paragraph B(11) of the ADR Rules, the Panel orders that the disputed domain name Fabrizio Bedarida 1 Considering the substantive similarities between the ADR Rules and the Uniform Domain Name Dispute Resolution Policy (“UDRP”), the Panel will refer to UDRP decisions and analysis, where appropriate. 2 The remedy sought is transfer of the disputed domain name to the Complainant Take-Two Interactive GmbH. As the Complainant Take-Two Interactive GmbH is established in Germany, it satisfies the general eligibility criteria for registration of the disputed domain name set out in Article 4(2)(b) of the Commission Regulation (EC) No. 733/2002.
Sole Panelist
Date: July 15, 2020
Full & Egal Universal Law Academy