The Complainant is Nationale Stichting tot Exploitatie van Casinospelen of Hoofddorp, the Netherlands, represented by Novagraaf Nederland B.V., the Netherlands.
The Respondent is David Dobric of Darmstadt, Germany. 2. The Domain Name and Registrar
The disputed domain name (the "Disputed Domain Name") is registered with SIDN through RegistryGate GmbH. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on June 21, 2016. On June 21, 2016, the Center transmitted by email to SIDN a request for registrar verification in connection with the Disputed Domain Name. On June 22, 2016, SIDN transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Dispute Resolution Regulations for .nl Domain Names (the "Regulations").
In accordance with the Regulations, articles 5.1 and 16.4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on June 24, 2016. In accordance with the Regulations, article 7.1, the due date for Response was July 14, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on July 15, 2016.
The Center appointed Hub J. Harmeling as the panelist in this matter on July 20, 2016. The Panel finds that it was properly constituted. The Panelist has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required to ensure compliance with the Regulations, article 9.2.
Due to exceptional circumstances, the Panel extended the decision due date to August 15, 2016. 4. Factual Background
Information about the Complainant is drawn from the Complaint.
The Complainant, Nationale Stichting tot Exploitatie van Casinospelen, is the sole licensee in the Netherlands to offer casino games, an license which it owns since 1976. It operates 14 casinos in the Netherlands.
The Complainant is the proprietor of several trademarks which contain the element "Holland Casino". The Complainant has provided evidence of the following registered trademarks:
1. HOLLAND CASINO, European Community Trademark, registration date February 25, 2008, Registration number 005501441;
2. HOLLAND CASINO, Benelux Trademark, registration date January 24, 1997, registration number 0607057.
The dispute concerns the Disputed Domain Name , which was registered on September 13, 2015. The Disputed Domain Name resolves to a website with links to online casino services offered by competitors of the Complainant.
The Complainant has sent a cease-and-desist letter to the Respondent on May 12, 2016.
In a previous .nl proceeding between the Parties, thepanel ordered the transfer of the domain name from the Respondent to the Complainant, Nationale Stichting tot Exploitatie van Casinospelen v. David Dobric,WIPO Case No. DNL2013-0038. 5. Parties' Contentions A. Complainant
The Complainant contends that the Disputed Domain Name is confusingly similar to the trademarks of which it is proprietor – as set out above – as well as to its trading name, protected under Dutch law, its personal name registered in the General Municipal Register of the Netherlands and the name of the legal entity under which the Complainant undertakes public activities on a permanent basis.
According to the Complainant, the Disputed Domain Name is confusingly similar to its trademarks, as its trademarks – HOLLAND CASINO – are fully incorporated in the Disputed Domain Name. Furthermore, the addition "onlinespelen" is not distinctive. Lastly, the Respondent provides services which are identical – or at least similar to – the services offered by the Complainant under its trademarks.
Second, the Complainant argues that the Respondent does not have any rights in the Disputed Domain Name, as it does not own registered trademarks and/or trade names that are identical or similar to HOLLAND CASINO or the Disputed Domain Name. Lastly, it asserts that the Disputed Domain Name has been registered and is being used in bad faith. In this regard, the Complainant submits that the Respondent was aware of the Complainant as the Parties were involved in a previous case under the Regulations, Nationale Stichting tot Exploitatie van Casinospelen v. David Dobric, supra.
The Complainant requests the transfer of the Disputed Domain Name. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
According to article 2.1 of the Regulations a claim to transfer a domain name must meet three cumulative conditions:
(a) the domain name is identical or confusingly similar to a trademark or trade name protected under Dutch law in which the complainant has rights, or other name mentioned in article 2.1(a) under II of the Regulations; and
(b) the respondent has no rights to or legitimate interests in the domain name; and
(c) the domain name has been registered or is being used in bad faith.
The Complainant has made the relevant assertions as to the above. The dispute is properly within the scope of the Regulations and the Panel has jurisdiction to decide the dispute.
Article 10.3 of the Regulations provides that in the event that a respondent fails to submit a response, the complaint shall be granted unless the panel considers it to be without basis in law or fact.
In the exercise of its power to undertake limited factual enquiries into matters of public record (WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0"),1 paragraph 4.5), the Panel has visited the website to which the Disputed Domain Name provides access. A. Identical or Confusingly Similar
The Complainant seeks to prove that the Disputed Domain Name is confusingly similar to trademarks registered in the Complainant's name.
The Top-Level Domain ("TLD") designation of the disputed domain names may generally be disregarded in the consideration of confusing similarity under the Regulations,2 and what remains of the Disputed Domain Name is "hollandcasinoonlinespelen". The addition "onlinespelen" is purely descriptive (in the Dutch language) of the activity of "online gambling" and as such of little significance in distinguishing between the Disputed Domain Name and the referred trademarks.
The Panel finds that the Disputed Domain Name is confusingly similar to the registered trademark HOLLAND CASINO for the purposes of article 2.1(a) of the Regulations (Nationale Stichting tot Exploitatie van Casinospelen v. David Dobric, supra). B. Rights or Legitimate Interests
The Complainant contends that the Respondent does not have rights or legitimate interests in respect of the Disputed Domain Name.
The Complainant has to demonstrate prima facie that the Respondent does not have rights or legitimate interests in respect of the Disputed Domain Name. Once the Panel is satisfied that this is indeed the case, the burden of production shifts to the Respondent (WIPO Overview 2.0, paragraph 2.1).
The Complainant's rights in its trademarks precede the Respondent's registration of the Disputed Domain Name. It is undisputed that the Respondent has never been authorized to use the HOLLAND CASINO trademark in any matter, including in domain dames. Moreover, the Respondent is not commonly known by the Disputed Domain Name. As the Complainant contends, the public WhoIs information identifies the registrant of the Disputed Domain Name as "David Dobric" which does not resemble the Disputed Domain Name in any way.
The website operating at the Disputed Domain Name however offers online casino services in the Dutch language, by use of the ".nl" TLD. It is therefore evident that the Disputed Domain Name is being used for commercial gain. As online gambling is prohibited in the Netherlands, it is questionable whether a legitimate interest could even exist as such, even if the Complainant would have failed to demonstrate that the Respondent does not have rights or legitimate interests. In any event, it is evident that the Respondent's use of the Disputed Domain Name cannot be considered a legitimate noncommercial use.
In view of the above considerations, and in the absence of any evidence to the contrary, the Panel finds that the Respondent does not have rights or legitimate interests in respect of the Disputed Domain Name for the purposes of article 2.1(b) of the Regulations. C. Registered or Used in Bad Faith
Article 3.2 of the Regulations sets out four non-exclusive circumstances any of which, if found by the panel, shall be evidence of registration or use of a domain name in bad faith.
In particular, article 3.2(d) provides that if the Panel finds that the Respondent has used the Disputed Domain Name for commercial gain, by attracting Internet users to its 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 its website, it should be taken as evidence of the registration and use of the Disputed Domain Name in bad faith.
The Panel concludes that the evidence submitted by the Complainant supports a finding of bad faith under article 3.2(d) of the Regulations. The Respondent's use of the Disputed Domain Name for commercial gain is established by the omnipresent links to gambling games on the website. The attraction of Internet users through a likelihood of confusion with the Complainant's trademark as to source, sponsorship, affiliation or endorsement is established by the fact that the Disputed Domain Name is confusingly similar to the HOLLAND CASINO trademark and the Complainant's own domain name. Further, the Disputed Domain Name offers products that are similar to and compete with the Complainant's products. The Panel finds that, as contended by the Complainant, the "news" section of the website solely contains news items concerning the Complainant, which adds to and aggravates the likelihood of confusion. Furthermore, given the cited previous ".nl" case between the Parties regarding the similar domain name , it is obvious that the Respondent was aware of the Complainant.
Finally, the Respondent did not respond to the Complainant's cease-and-desist letter, which provides further "support for a determination of 'bad faith' registration and use" (Encyclopedia Britannica,Inc. v. John Zuccarini and The Cupcake Patrol a/ka Country Walk a/k/a Cupcake Party,WIPO Case No. D2000-0330).
Based on the above considerations, the Panel concludes that Complainant has established the third element of article 2.1 of the Regulations. 7. Decision
For all the foregoing reasons, in accordance with articles 1 and 14 of the Regulations, the Panel orders that the Disputed Domain Name, , be transferred to the Complainant.
Hub J. Harmeling
Panelist
Date: August 15, 2016
1 While the Complaint is brought under the Regulations, and not the Uniform Domain Name Dispute Resolution Policy ("UDRP"), given the similarities between the two, where applicable the Panel considers UDRP precedent relevant to the current proceeding, and will refer to it where appropriate.
2 See Roompot Recreatie Beheer B.V. v. Edoco LTD,WIPO Case No. DNL2008-0008.
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