The Complainant is Microgaming Software Systems Limited of Douglas, Isle of Man, United Kingdom of Great Britain and Northern Ireland (“United Kingdom”), represented by D. Young & Co., United Kingdom.
The Respondent is Ekirimm Yikillmaazz of Ankara, Turkey.
The disputed domain name <usonlinecasinosmicrogaming.com> is registered with GoDaddy.com, LLC (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 4, 2014. On August 4, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 5, 2014, 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.
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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 6, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was August 26, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 27, 2014.
The Center appointed Assen Alexiev as the sole panelist in this matter on September 2, 2014. 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 was established in 1994 and is a developer of online casino software.
The Complainant is the exclusive licensee of a number of registered trademarks consisting of the word MICROGAMING (the “MICROGAMING trademark”) in various jurisdictions throughout the world including:
- The word trademark MICROGAMING, registered in Australia on July 22, 2002 with registration No. 920607 for goods and services in International Classes 9,35 and 41;
- The word trademark MICROGAMING, registered in Canada on November 2, 2004 with registration No. TMA624367;
- The word trademark MICROGAMING, registered as a Community trademark on January 8, 2004 with registration No. 002789063 for goods and services in International Classes 9, 35 and 41.
The proprietor of the MICROGAMING trademark is Neosoft Anstalt, Vaduz, Liechtenstein.
The disputed domain name was registered on December 6, 2012.
The Complainant submits that it has developed the world’s first operational online casino system. This system is currently utilised by more than 100 online casinos, including The Palace Group and DigiMedia Limited. The websites of these online casinos have more than three million visitors per month in total, while the Complainant’s own website at “www.microgaming.com” attracts about 250,000 visitors per year. As a result of the Complainant’s use and advertising of the MICROGAMING trademark, the latter has acquired extensive goodwill in relation to online casino and gaming related software.
The Complainant contends that the disputed domain name is confusingly similar to the MICROGAMING trademark. The dominant part of the disputed domain name is “microgaming”, while the word “us” is generic and the words “online” and “casinos” are descriptive of the activities of the Complainant. The use of the dominant element “microgaming” along with such generic and descriptive words makes the disputed domain name confusingly similar to the Complainant’s well-known MICROGAMING trademark. There is a substantial likelihood that Internet users will be confused into believing that there is some connection between the Complainant and the disputed domain name when no such relationship actually exists.
According to the Complainant, the Respondent has no rights or legitimate interests in the disputed domain name. The Respondent has not used or made demonstrable preparations to use the disputed domain name or a name corresponding to it in connection with a bona fide offering of goods or services. The disputed domain name links to a website that displays paid advertisements and sponsored links to casinos which do not use the Complainant’s software. The Respondent thus uses the disputed domain name to direct Internet traffic to sponsored links, which is not a bona fide offering of goods or services, and attempts to take advantage of the reputation of the MICROGAMING trademark. The Complainant submits that the Respondent is not commonly known by the disputed domain name. The Respondent is neither an agent nor a licensee of the Complainant and has no connection or affiliation with the Complainant. The Respondent has no right to use the MICROGAMING trademark in the disputed domain name. The Respondent is not making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the MICROGAMING trademark.
The Complainant contends that the Respondent has registered and used the disputed domain name in bad faith. The Complainant has a long established reputation in the use of its MICROGAMING trademark in relation to online gaming and casino services, and has been using this trademark in the course of trade since its inception in 1994. A Google search reveals that the Respondent appears to be the registrant of a number of domain names that make reference to casino services. It is therefore highly likely that the Respondent was fully aware of the Complainant’s MICROGAMING trademark and its reputation in the gaming and casino industry when registering the disputed domain name. The Complainant submits that in these circumstances it is not possible to conceive of any plausible actual or contemplated use of the disputed domain name by the Respondent that would be legitimate. The Respondent has registered the disputed domain name primarily for the purpose of disrupting the business of the Complainant (a competitor) by linking the disputed domain name to a website which displays sponsored links to casinos which are not powered by the Complainant’s software. By registering the disputed domain name and using it to resolve to a website which displays links to online casinos not powered by the Complainant’s software, 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 MICROGAMING trademark as to the source, sponsorship, affiliation or endorsement of the Respondent’s website.
The Complainant also submits that on April 29, 2014, it sent a cease and desist letter to the Respondent, containing a request that the disputed domain name be immediately transferred to the Complainant. This letter was delivered by courier on May 2, 2014, but to date the Complainant has received no response from the Respondent.
The Respondent did not reply to the Complainant’s contentions.
Pursuant to Policy, paragraph 4(a), the Complainant must prove each of the following to justify the transfer of the disputed domain name:
(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 Respondent has registered and is using the disputed domain name in bad faith.
In this case, the Center has employed the required measures to achieve actual notice of the Complaint to the Respondent, in compliance with Rules, paragraph 2(a), and the Respondent was given a fair opportunity to present its case.
According to Rules, paragraph 5(b)(i), it is expected of a respondent to: “[r]espond specifically to the statements and allegations contained in the complaint and include any and all bases for the Respondent (domain name holder) to retain registration and use of the disputed domain name […]”.
In the event of a default, under Rules, paragraph (14)(b): “[…] the Panel shall draw such inferences therefrom as it considers appropriate.”
As stated by the panel in Mary-Lynn Mondich and American Vintage Wine Biscuits, Inc. v. Shane Brown, doing business as Big Daddy’s Antiques., WIPO Case No. D2000-0004: “[h]ere, the potential evidence of good faith registration and use was in respondent’s control. Respondent’s failure to present any such evidence or to deny complainant’s allegations allows an inference that the evidence would not have been favorable to respondent.” Also, as stated by the panel in Viacom International Inc. v. Ir Suryani, WIPO Case No. D2001-1443: “[s]ince the Respondent has not submitted any evidence and has not contested the contentions made by the Complainant, this Panel is left to render its decision on the basis of the uncontroverted contentions made, and the evidence supplied, by the Complainant […]. In the absence of any evidence to the contrary submitted by the Respondent, this Panel accepts in large measure (but not wholly) the submitted evidence and the contended for factual and legal conclusions as proven by such evidence.”.
In these administrative proceedings, the Respondent’s default entitles the Panel to conclude that the Respondent likely has no arguments or evidence to rebut the assertions of the Complainant. The Panel has to make its decision on the basis of the statements and documents submitted by the Complainant and in accordance with the Policy, the Rules, and any rules and principles of law that it deems applicable.
The Complainant has provided evidence about the registrations of the MICROGAMING trademark and its exclusive rights to use it, and has thus established its rights in this trademark.
It is a common practice under the Policy to disregard, in appropriate circumstances, the generic Top-Level Domains (“gTLD”) such as the “.com” for the purposes of the comparison under the Policy, paragraph 4(a)(i). Therefore, the relevant part of the disputed domain name here is its “usonlinecasinosmicrogaming” section. This section appears as a combination of four elements - “us”, “online”, “casinos” and “microgaming”. The first three elements are generic words, while the fourth element is identical to the Complainant’s well-known MICROGAMING trademark. In the Panel’s view, the fourth element is more prominent than the three other elements, and their combination of elements does not distinguish the disputed domain name from the MICROGAMING trademark. Rather, it makes it likely that Internet users would associate the disputed domain name with the Complainant and its software and would have the impression that the disputed domain name is related to online casinos that use the Complainant’s software.
Therefore, the Panel finds that the disputed domain name is confusingly similar to the MICROGAMING trademark in which the Complainant has rights, and that the Complainant has established the first element of paragraph 4(a) of the Policy in relation to the disputed domain name.
The Policy requires the Complainant to make at least a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. Once the Complainant makes such a case, the Respondent may provide evidence to demonstrate that it has rights or legitimate interests in the disputed domain name. The burden of proof, however, always remains on the Complainant to establish that the Respondent lacks rights or legitimate interests in the disputed domain name. See paragraph 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”).
The Complainant has contended that the Respondent has no rights or legitimate interests in the disputed domain name, stating that the Respondent is not commonly known by the disputed domain name and is not affiliated with the Complainant, that it was not authorized or licensed to use the MICROGAMING trademark or to register a domain name incorporating the same trademark. The Complainant also asserts that the Respondent has linked the disputed domain name to a commercial website that has not been authorized by the Complainant, where online casinos that do not use the Complainant’s software are advertised. Thus, the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name.
The Respondent, although given a fair opportunity to do so, chose not to present to the Panel any Response in accordance with the Rules, paragraph 5(b)(i) and 5(b)(ix), despite the consequences that the Panel may extract from the fact of a default (Rules, paragraph 14). If the Respondent had any legitimate reason for the registration and use of the disputed domain name, it could have brought it to the attention of the Panel. In particular, the Respondent has failed to deny the contentions of the Complainant and to contend that any of the circumstances described in Policy, paragraph 4(c), is present in its favour.
Apart from the factual contentions of the Complainant, the only other sources of information about the Respondent is the WhoIs information, provided by the Registrar, and the content of the website at the disputed domain name.
The WhoIs information for the disputed domain name does not show a connection between the name of the Respondent and the disputed domain name. The disputed domain name is confusingly similar to the well-known MICROGAMING trademark of the Complainant, which was registered long before the registration of the disputed domain name. As contended by the Complainant and undisputed by the Respondent, the Respondent uses the disputed domain name for a website that displays sponsored links and advertisements to websites which feature online casinos not powered by the Complainant’s software. As asserted by the Complainant, it has not authorized the Respondent to carry out such activity. In these circumstances, it is more likely than not that Internet users may be led to wrongly believe that the Respondent’s website is endorsed by the Complainant, and to believe that the online casinos advertised there are supported by the Complainant and use its software.
In the Panel’s view, the evidence in the case file shows that the Respondent has been aware of the Complainant and of its MICROGAMING trademark when the disputed domain name was registered, and the registration and use of the disputed domain name took place without the consent of the Complainant. The Panel finds it more likely than not that this registration was made in an attempt to benefit from the reputation of the MICROGAMING trademark to attract customers to the Respondent’s website and then advertise to them online casinos that are not supported by the Complainant. The Panel is of the opinion that such conduct cannot give rise to rights or legitimate interests in the disputed domain name. Therefore, the Panel finds that the Complainant’s prima facie case has not been rebutted, and the Respondent has no rights or legitimate interests in the disputed domain name.
Paragraph 4(b) of the Policy lists four illustrative alternative circumstances that shall be evidence of the registration and use of a domain name in bad faith by a respondent, namely:
“(i) circumstances indicating that you have registered or you have acquired the domain name 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 your documented out of pocket costs directly related to the domain name; or
(ii) you have 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 you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.”
As discussed above in relation the issue of rights or legitimate interests, the Respondent must have been aware of the Complainant’s well-known MICROGAMING trademark at the time of the registration of the disputed domain name, which is confusingly similar to this trademark, and without authorisation from the Complainant has registered it in view of its similarity to the trademark and its potential to attract visitors looking for the online casinos supported by the Complainant. In the Panel’s view, these circumstances support a finding that the Respondent has registered the disputed domain name in bad faith.
The Respondent has not denied that the disputed domain name is linked to a commercial website that displays sponsored links and advertises online casinos that do not use the Complainant’s software, and this is being done without the consent of the Complainant. In the absence of any evidence or allegation to the contrary, these circumstances satisfy the Panel that the Respondent, by using the disputed domain name, has intentionally attempted to attract for commercial gain Internet users to a commercial website by creating a likelihood of confusion with the Complainant’s MICROGAMING trademark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website and of the goods offered on it. This conduct of the Respondent supports a finding of bad faith use of the disputed domain name under Policy, paragraph 4(b)(iv).
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 <usonlinecasinosmicrogaming.com> be transferred to the Complainant.
Assen Alexiev
Sole Panelist
Date: September 21, 2014