WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Cube Limited v. Domain Administrator / lihong chen

Case No. D2016-0313

1. The Parties

Complainant is Cube Limited of Isle of Man, United Kingdom of Great Britain and Northern Ireland ("United Kingdom") represented by Berwin Leighton Paisner, United Kingdom.

Respondent is Domain Administrator of Phoenix, Arizona, United States of America / lihong chen of Xiamen, Fujian, China.

2. The Domain Names and Registrars

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on February 16, 2016. On February 17, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On the same date, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondents and contact information in the Complaint. The Center sent an email communication to Complainant on February 18, 2016 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on February 23, 2016.

The Center verified that the Complaint together with the amended 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 Respondent of the Complaint, and the proceedings commenced on March 3, 2016. In accordance with the Rules, paragraph 5, the due date for Response was March 23, 2016. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on March 30, 2016.

The Center appointed Yijun Tian as the sole panelist in this matter on April 5, 2016. 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 Background

Complainant, Cube Limited, is a company incorporated in United Kingdom. Based on the information provided in the Complaint, Complainant provides consumers with an extensive range of betting products and services through the Internet on its website "www.188bet.com". It also specializes in live casino and traditional casino entertainment services provided online. Complainant has a significant global customer base. The majority of customers are based in Asia, where the 188 brand and trademarks are recognized.

Complainant has exclusive rights in the 188 and 188-related marks ("188 marks"). Complainant is the exclusive owner of several trademarks registered globally, including European Union Trademark no. 8,390,379, word mark for the numerals 188, registered on March 22, 2010 for goods and services in International Classes 9, 28, 41 and 42, and Hong Kong Trademark registration no 302,702,655 for the work mark 188BET, registered on August 12, 2013 for goods and services in International Classes 9, 28, 41 and 42.

The disputed domain name <188009.com> was registered on March 7, 2014, and the disputed domain names <1881001.com>, <1882002.com>, <1883003.com>, <1884004.com>, <1885005.com>, <1886006.com>, <1887007.com>, <1888008.com> and <1889009.com> were registered on March 29, 2015.

5. Parties' Contentions

A. Complainant

Complainant contends that the disputed domain names <188009.com>, <1881001.com>, <1882002.com>, <1883003.com>, <1884004.com>, <1885005.com>, <1886006.com>, <1887007.com>, <1888008.com> and <1889009.com> are confusingly similar to its trademark 188, the registration and use of which by Complainant preceded the registration of the disputed domain names.

Complainant contends that Respondent has no rights or legitimate interests in respect of the disputed domain names.

Complainant contends that the disputed domain names were registered and are being used in bad faith.

Complainant requests that the disputed domain names <188009.com>, <1881001.com>, <1882002.com>, <1883003.com>, <1884004.com>, <1885005.com>, <1886006.com>, <1887007.com>, <1888008.com> and <1889009.com> be transferred to it.

B. Respondent

Respondent did not reply to Complainant's contentions.

6. Discussion and Findings

Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that the disputed domain names should be cancelled or transferred:

(i) The disputed domain names registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights;

(ii) Respondent has no rights or legitimate interests in respect of the disputed domain names; and

(iii) The disputed domain names have been registered and are being used in bad faith.

On the basis of the evidence introduced by Complainant and in particular with regards to the content of the relevant provisions of the Policy, (paragraphs 4(a), (b), (c)), the Panel concludes as follows:

A. Identical or Confusingly Similar

The Panel finds that Complainant has rights in the 188 marks acquired through registration. The 188 marks have been registered globally, including the aforementioned trademarks in the European Union and in Hong Kong. Complainant has a significant global customer base. The majority of customers are based in Asia, where the 188 brand and trademarks are recognized.

The disputed domain names <188009.com>, <1881001.com>, <1882002.com>, <1883003.com>, <1884004.com>, <1885005.com>, <1886006.com>, <1887007.com>, <1888008.com> and <1889009.com> comprise the 188 mark in its entirety. The disputed domain names only differ from Complainant's 188 mark by the addition of the numerals, "009", "1001", "2002", "3003", "4004", "5005", "6006", "7007" and "8008", as well as the generic Top-Level Domain ("gTLD") ".com". The addition of non-distinctive numerals in the ten disputed domain names as suffixes does not eliminate the confusing similarity between Complainant's registered trademarks and the disputed domain names (Cube Limited v. Super Privacy Service, c/o Dynadot, WIPO Case No. D2015-1325).

WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0") further states:

"The applicable top-level suffix in the domain name (e.g., ".com") would usually be disregarded under the confusing similarity test (as it is a technical requirement of registration), except in certain cases where the applicable top-level suffix may itself form part of the relevant trademark" (paragraph 1.2).

Thus, the Panel finds that the addition of the numerals and the gTLD ".com" are not sufficient to negate the confusing similarity between the disputed domain names and the 188 marks.

The Panel therefore holds that the Complaint fulfils the first condition of paragraph 4(a) of the Policy.

B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy provides a list of circumstances any of which is sufficient to demonstrate that Respondent has rights or legitimate interests in each of the disputed domain names:

(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or

(ii) Respondent has been commonly known by the disputed domain name, even if Respondent has acquired no trademark or service mark rights; or

(iii) Respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish Complainant's trademarks.

The overall burden of proof on this element rests with Complainant. However, it is well established by previous UDRP panel decisions that once a complainant establishes a prima facie case that a respondent lacks rights or legitimate interests in a domain name, the burden of production shifts to respondent to rebut complainant's contentions. If respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy (Danzas Holding AG, DHL Operations B.V. v. Ma Shikai, WIPO Case No. D2008-0441; WIPO Overview 2.0, paragraph 2.1 and cases cited therein).

Complainant has rights in the 188 marks since 2009 which precede Respondent's registration of the disputed domain names (since 2014). According to the Complaint, Complainant has a significant global customer base. The majority of customers are based in Asia, where the 188 marks and trademarks are recognized. Complainant's website achieves a monthly average of more than one million unique visitors and Complainant's website has on average more than thirty million page views per month.

Moreover, Respondent is not an authorized dealer of 188-branded products or services. Complainant has therefore established a prima facie case that Respondent has no rights or legitimate interests in the disputed domain names and thereby shifts the burden to Respondent to produce evidence to rebut this presumption (The Argento Wine Company Limited v. Argento Beijing Trading Company, supra; Do The Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624; Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455).

Based on the following reasons the Panel finds that Respondent has no rights or legitimate interests in the disputed domain names:

(a) There has been no evidence adduced to show that Respondent is using the disputed domain names in connection with a bona fide offering of goods or services. Respondent is using the disputed domain names (except <188009.com> and<1885005.com>, which do not resolve to any content) to direct users to active betting and gaming websites which do not offer Complainant's services (Annex 5 to the Complaint). Respondent has not provided evidence of a legitimate use of the disputed domain names or reasons to justify the choice of the term "188" in its business operation. There has been no evidence to show that Complainant has licensed or otherwise permitted Respondent to use the 188 marks or to apply for or use any domain names incorporating the 188 marks.

(b) There has been no evidence adduced to show that Respondent has been commonly known by the disputed domain names. There has been no evidence adduced to show that Respondent has any registered trademark rights with respect to the disputed domain names. Respondent registered the disputed domain names in 2014 and 2015 respectively, long after the use of 188 marks (used since 2005 and registered since 2010). The disputed domain names are identical or confusingly similar to Complainant's 188 marks.

(c) There has been no evidence adduced to show that Respondent is making a legitimate noncommercial or fair use of the disputed domain names. By contrast, according to the information provided by Complainant, Respondent is using the websites resolved by disputed domain names (save for the black domains <188009.com> and<1885005.com>) to provide betting and gaming services online.

The Panel finds that Respondent has failed to produce any evidence to establish its rights or legitimate interests in the disputed domain names. The Panel therefore holds that the Complaint fulfils the second condition of paragraph 4(a) of the Policy.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy sets out four circumstances which, without limitation, shall be evidence of the registration and use of each of the disputed domain names in bad faith, namely:

(i) circumstances indicating that Respondent has registered or acquired the disputed domain names primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to Complainant who is the owner of the trademark or service mark or to a competitor of Complainant, for valuable consideration in excess of Respondent's documented out-of-pocket costs directly related to the disputed domain name; or

(ii) Respondent has registered the disputed 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 Respondent has engaged in a pattern of such conduct; or

(iii) Respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the disputed domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent's website or other online location, by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of Respondent's website or location or of a product or service on the website or location.

The Panel concludes that the circumstances referred to in paragraph 4(b)(i) and (iv) of the Policy are applicable to the present case and upon the evidence of these circumstances and other relevant circumstances, it is adequate to conclude that Respondent has registered and used the disputed domain name in bad faith.

The Panel finds that Complainant has a widespread reputation in the 188 marks with regard to its products and services. Complainant has registered its 188 marks since 2010 (the first use of the mark since 2005). Complainant has a significant global customer base, particularly in Asia. Its website achieves a monthly average of more than one million unique visitors and has on average more than thirty million page views per month.

It is not conceivable that Respondent would not have had actual notice of Complainant's trademark rights at the time of the registration of the disputed domain name (in 2014 and 2015).

Moreover, Respondent has chosen not to respond to Complainant's allegations. According to the panel's decision in The Argento Wine Company Limited v. Argento Beijing Trading Company, supra, "the failure of the Respondent to respond to the Complaint further supports an inference of bad faith" (see also Bayerische Motoren Werke AG v. (This Domain is For Sale) Joshuathan Investments, Inc., WIPO Case No. D2002-0787).

Thus, the Panel concludes that the disputed domain names were registered in bad faith with the intent to create an impression of an association with Complainant's advertised 188-branded products and services.

Complainant has adduced evidence to prove that by using the confusingly similar disputed domain names, Respondent has "intentionally attempted to attract, for commercial gain, Internet users to Respondent's websites". Complainant claimed that "the websites accessible from the disputed domain names do not direct Internet traffic to the Complainant's website, instead, they attempt to take advantage of goodwill and reputation in the 188 trade marks and for commercial gain".

To establish an "intention for commercial gain" for the purpose of this Policy, evidence is required to indicate that it is "more likely than not" that intention existed (The Argento Wine Company Limited v. Argento Beijing Trading Company, supra).

Given the widespread reputation of the 188 marks, the Panel finds that the public is likely to be confused into thinking that the disputed domain names have a connection with Complainant, contrary to the fact. There is a strong likelihood of confusion as to the source, sponsorship, affiliation or endorsement of the websites to which the disputed domain names resolve. In other words, Respondent has through the use of confusingly similar disputed domain names created a likelihood of confusion with the 188 marks, and attracted online visitors and Internet traffic. Moreover, Respondent did not respond to the Complaint. And, as mentioned above, Respondents are using the websites resolved by disputed domain names to provide betting and gaming services online, which are similar with services of Complainant. While two of the disputed domain names do not resolve to an active website, given the similarity of the domain names and the use made of the remaining eight domain names, the Panel infers Respondent intended to use them in a similar fashion. The Panel therefore concludes that the disputed domain names are being used by Respondents in bad faith.

In summary, Respondent, by choosing to register and use the disputed domain names, which are confusingly similar to Complainant's trademarks, intended to ride on the goodwill of Complainant's trademarks in an attempt to exploit, for commercial gain, Internet users destined for Complainant. In the absence of evidence to the contrary and rebuttal from Respondent, the choice of the disputed domain names and the conduct of Respondent as far as the websites to which the disputed domain names resolve are indicative of registration and use of the disputed domain names in bad faith.

The Panel therefore holds that the Complaint fulfils the third condition of paragraph 4(a) of the Policy.

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain names <188009.com>, <1881001.com>, <1882002.com>, <1883003.com>, <1884004.com>, <1885005.com>, <1886006.com>, <1887007.com>, <1888008.com> and <1889009.com> be transferred to Complainant.

Yijun Tian
Sole Panelist
Dated: April 19, 2016