The Complainant is Realm Entertainment Limited of Ta’ Xbiex, Malta, represented by Ports Group AB, Sweden.
The Respondent is Aytac Kalinci of Istanbul, Turkey.
The disputed domain name <bets10kayitol.net> is registered with IHS Telekom, Inc. (the “Registrar”).
The Complaint in English was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 16, 2018. On March 16, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 19, 2018, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
Pursuant to the Complaint submitted in English and the registrar verification dated March 19, 2018 stating that Turkish is the language of the registration agreement of the disputed domain name, on March 22, 2018, the Center sent a request in English and Turkish for the Parties to submit their comments on the language of the proceeding. On March 23, 2018, the Complainant submitted its request for English to be the language of the proceeding; whereas the Respondent did not submit any request regarding the language of the proceeding.
The Center verified that 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 March 28, 2018. In accordance with the Rules, paragraph 5, the due date for Response was April 17, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 18, 2018.
The Center appointed Gökhan Gökçe as the sole panelist in this matter on April 25, 2018. 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.
The Complainant is Realm Entertainment Limited, a company incorporated in Malta running from 2011 an online gambling and games website at “www.bets10.com”. Under the name “Bets10” the Complainant offers a wide range of online gambling products and games.
The Complainant owns the following registrations for the trademark BETS10 in the European Union:
- European Union Trade Mark registration No. 009941139 BETS10, registered on September 14, 2011;
- European Union Trade Mark registration No. 012403713 BETS10 and design, registered on May 5, 2014.
The Complainant provided evidence in support of the above.
Respondent, a resident of Turkey, registered the disputed domain name on November 22, 2017, which previously resolved to a website at “bets10kayitol.com” which apparently was an online gambling platform in the Turkish language. Currently, the disputed domain name does not resolve to an active website.
On February 19, 2018 the Complainant sent a cease-and-desist to the Respondent, without receiving any answer.
The Complainant states that the disputed domain name <bets10kayitol.com> is confusingly similar to its trademark BETS10, as the term “kayitol”, which means “register” in Turkish, is not sufficient to differentiate the disputed domain name from the Complainant’s trademarks. The Complainant also states that the addition of the generic Top-Level Domain (“gTLD”) “.net” does not have any impact on the overall impression of the dominant portion of the disputed domain name and is therefore irrelevant to determine the confusing similarity of the disputed domain name to the trademarks.
Moreover, the Complainant asserts that the Respondent has no rights or legitimate interests with respect to the disputed domain name since (1) Complainant has not given the Respondent any license or other permission to make use of the BETS10 trademark, (2) there is no evidence that the Respondent has been commonly known by the disputed domain name or that he is making a legitimate noncommercial or fair use thereof, and, finally, (3) the fact that the disputed domain name resolves to the website at “www.bets10kayitol.com” clearly demonstrates that it was intended to be used to commercially profit from misled consumers searching for information about the Complainant’s business and to provide links to competitors of the Complainant.
The Complainant states that the Respondent has registered and is using the disputed domain name in bad faith as the Complainant’s trademarks were registered and used by the Complainant well before the Respondent became the owner of the disputed domain name. And also asserts that it is obvious that the Respondent was well aware of the Complainant’s business when registering the disputed domain name. The Complainant also argues that disputed domain name is active in the same kind of business as is the Complainant clearly demonstrates that the Respondent is trying to take advantage of the BETS10 trademark by commercially profiting from the likelihood of confusion between the trademark and the disputed domain name or at least to use the likelihood of confusion in a way that is detrimental to the Complainant and its business.
The Respondent did not reply to the Complainant’s contentions.
Although the language of the Registration Agreement of the disputed domain name is Turkish, the Panel determines in accordance with the Rules, paragraph 11(a) that the language of this administrative proceeding shall be English.
The Panel finds that it would be inappropriate to conduct the proceeding in Turkish and request a Turkish translation of the Complaint, noting that the Respondent has failed to raise any objection about the language of the proceeding, or to respond in any way to the Complaint, despite having received all communications from the Center in Turkish and in English.
Paragraph 15(a) of the Rules requires the Panel to decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
Under paragraph 4(a) of the Policy, the Complainant bears the burden of showing:
(i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) that the disputed domain name has been registered and is being used in bad faith.
The Panel finds that the disputed domain name is confusingly similar to the BETS10 trademark of the Complainant.
First, the Panel confirms that the Complainant has satisfied the threshold requirement of having trademark rights regarding the sign BETS10. As evidenced in the Complaint, the Complainant is the owner of a BETS10 European Union Trade Mark, which was registered on September 14, 2011 and includes protection for various kinds of gambling and betting services and products.
Although not identical, the disputed domain name fully incorporates the trademark BETS10. The disputed domain name is confusingly similar to the trademark BETS10 as the addition of the term “kayitol”, which means “register” in Turkish, is not sufficient to distinguish the disputed domain name from the Complainant’s trademark (see, e.g., Realm Entertainment Limited v. Atilim Kaymaz, WIPO Case No. D2017-1263; Realm Entertainment Limited v. Ferhat Aydin, WIPO Case No. D2017-1258; Realm Entertainment Limited v. Necat Celik, WIPO Case No. D2016-0785).
It is also well accepted that a gTLD, in this case “.net”, may be ignored when assessing the confusing similarity between a trademark and a domain name (see, e.g., VAT Holding AG v. Vat.com, WIPO Case No. D2000-0607).
The Panel therefore finds that paragraph 4(a)(i) of the Policy has been satisfied.
The Respondent has not provided any evidence of the type specified in paragraph 4(c) of the Policy, or any other circumstances giving rise to a right or legitimate interest in the disputed domain name. It is clear that the Respondent has not demonstrated any bona fide offering of goods and services by its using the disputed domain name. Nor has the Respondent shown that it has been commonly known by the disputed domain name. Rather, the evidence of the Complainant suggests that the Respondent has used the disputed domain name in an attempt to trade off the goodwill associated with the Complainant’s trademark.
The Complainant also showed, inter alia, that the Respondent has neither a license nor any other permission to use the Complainant’s trademark in the disputed domain name or otherwise. The Panel finds that the Complainant has made a prima facie case that the Respondent lacks rights or legitimate interests, and the Respondent has failed to demonstrate such rights or legitimate interests (see, e.g., Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455). Additionally, according to earlier UDRP panels, “non-response is indicative of a lack of interests inconsistent with an attitude of ownership and a belief in the lawfulness of one’s own rights” (see, e.g., GA Modefine S.A. and Giorgio Armani S.p.A. v. Yoon-Min Yang, WIPO Case No. D2005-0090; and Pomellato S.p.A. v. Richard Tonetti, WIPO Case No. D2000-0493).
There is also no indication that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name without the intent for commercial gain to misleadingly divert Internet users or to tarnish the BETS10 trademark. Quite the contrary, it appears that the Respondent particularly tries to mislead particularly Turkish speaking customers by causing the impression that the website linked to the disputed domain name is an official site, being the entrance into the games world provided by the Complainant (see, e.g., Realm Entertainment Limited v. Necat Celik, WIPO Case No. D2016-0785).
Hence, the Panel finds that the Complainant has also satisfied the second requirement of the Policy, namely paragraph 4(a)(ii) of the Policy.
The Panel is convinced that the Respondent has registered and is using the disputed domain name in bad faith.
It appears that the Respondent has registered the disputed domain name solely for the purpose of creating an association with the Complainant, in particular with its provided gambling services. According to the screenshots of the websites linked to the disputed domain name provided as annexes to the Complaint, the Panel is convinced that the Respondent has intentionally registered the disputed domain name in order to create the false impression that the website is somehow officially linked to the Complainant. The Policy indicates in paragraph 4(b)(iv) that bad faith registration and use can be found in the use of the disputed domain name, with an intention to attempt to attract, for commercial gain, Internet users to the 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 website or location or of a product or service on the website or location. By this, the Panel believes that the disputed domain name was registered and used for the sole purpose to commercially profit from misled consumers searching for the online games provided by the Complainant.
There is no suggestion that the Respondent had any intention of legitimate use, that it enjoys a legitimate connection to the disputed domain name or that there is conceivable good faith use for the disputed domain name.
The above suggests to the Panel that the Respondent intentionally registered and is using the disputed domain name in order to create confusion with the Complainant’s trademarks and attract, for commercial gain, Internet users to its website in accordance with paragraph 4(b)(iv) of the Policy.
The Panel finds that the Complainant has presented evidence to satisfy its burden of proof with respect to the issue of whether the Respondent has registered and is using the disputed domain name in bad faith.
The Panel therefore finds that paragraph 4(a)(iii) of the Policy has been satisfied.
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 <bets10kayitol.net> be transferred to the Complainant.
Gökhan Gökçe
Sole Panelist
Date: May 16, 2018