The Complainant is Realm Entertainment Limited of Ta' Xbiex, Malta, represented by Domain and Intellectual Property Consultants, Dipcon AB, Sweden.
The Respondent is Necat Celik of Herten, Germany.
The disputed domain name <bets10da.com> is registered with Ascio Technologies Inc. (the "Registrar").
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on April 20, 2016. On April 20, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 21, 2016, 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 Respondent filed email communications with the Center on April 28 and May 25, 2016. The Complainant filed an amended Complaint on May 3, 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 the Respondent of the Complaint, and the proceedings commenced on May 4, 2016. In accordance with the Rules, paragraph 5, the due date for Response was May 24, 2016. The Respondent did not submit any substantive response. Accordingly, the Center notified the parties of the commencement of the Panel appointment process on May 25, 2016.
The Center appointed Kaya Köklü as the sole panelist in this matter on May 31, 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.
The Complainant is a limited liability company which is incorporated in Malta. It provides online gambling products and games under the trademark BETS10 since 2011.
The Complainant is the owner of various BETS10 trademarks. One of the most relevant registered trademarks in the present case is the BETS10 European Union trademark (reg. no. 009941139), registered on September 14, 2011 in the classes 36, 38 and 41.
The Complainant further owns and operates a game site at "www.bets10.com".
The Respondent is an individual located in Herten, Germany. It is the owner of the disputed domain name <bets10da.com>, which was created on May 19, 2015 and resolves to a website in Turkish.
As evidenced by the Complainant, the Respondent did not reply to an attempt of the Complainant to solve this dispute inter partes before initiating the present administrative proceedings. In its email communications of April 28 and May 25, 2016, the Respondent offered settlement talks and the transfer of the disputed domain name, which were, however, refused by the Complainant.
The Complainant requests the transfer of the disputed domain name.
The Complainant is of the opinion that the disputed domain name is confusingly similar to the Complainant's trademark as it entirely incorporates the Complainant's BETS10 trademark. The Complainant argues that the only difference between the disputed domain name and the Complainant's trademark is that the disputed domain name additionally comprises the Turkish suffix "da". It is argued that this addition is not enough to distinguish the wording in the domain name from the wording in the registered trademark.
Furthermore, the Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name. In particular, the Complainant states that the Complainant has never granted a permission or license to the Respondent concerning the use of its BETS10 trademark. The Complainant alleges that the Respondent has never used and does not intend to use the BETS10 trademark in connection with a bona fide offering of goods and services. The Complainant is rather convinced that the disputed domain name was registered for the sole purpose to commercially profit from misled consumers searching for services provided by the Complainant.
Finally, it is argued that the Respondent has registered and is using the disputed domain name in bad faith. The Complainant particularly believes that due to the wide recognition of the BETS10 trademark since 2011, the Respondent must have been well aware of the BETS10 trademark when registering the disputed domain name in 2015. In addition, the Complainant is of the opinion that the way of using the disputed domain name by the Respondent clearly indicates his bad faith intention.
The Respondent did not reply to the Complainant's contentions.
In its email communications of April 28 and May 25, 2016, the Respondent only indicated that he is willing to transfer the disputed domain name without making any statement on the substance of the case.
According to paragraph 15(a) of the Rules, the Panel shall decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
In accordance with paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements is satisfied:
(i) the disputed domain name is identical or confusingly similar to the trademark 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 disputed domain name has been registered and is being used in bad faith.
Paragraph 4(a) of the Policy states that the Complainant bears the burden of proving that all these requirements are fulfilled, even if the Respondent has not replied to the Complaint. Stanworth Development Limited v. E Net Marketing Ltd., WIPO Case No. D2007-1228.
However, concerning the uncontested information provided by the Complainant, the Panel may as appropriate accept the provided reasonable factual allegations in the Complaint as true. Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110.
Further it is noted that the Panel has taken note of the WIPO Overview of Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0") and, where appropriate, will decide consistent with the WIPO Overview 2.0.
The Panel finds that the disputed domain name is confusingly similar to the BETS10 European Union 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 trademark, 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 differs from the trademark BETS10 only by the addition of the Turkish suffix "da", which means in combination with the Complainant's trademark "at BETS10" in the English language. In the Panel's view, the addition of a generic suffix like "da" does not negate the confusing similarity between the Complainant's trademark and the disputed domain name. The Panel finds that this incorporation is purely descriptive and does not create a new distinctiveness separate from the Complainant's trademark BETS10. On the contrary, the full inclusion of the Complainant's trademark in combination with "da" may even enhance the false impression that the website linked to the disputed domain name is somehow officially related to the Complainant as it falsely suggests being the entrance into the Complainant's world of games.
The Panel further finds that the Respondent has not demonstrated any rights or legitimate interests in the disputed domain name.
While the burden of proof remains with the Complainant, the Panel recognizes that this would result in the impossible task of proving a negative; in particular as the evidence needed to show the Respondent's lack of rights or legitimate interests is primarily within the knowledge of the Respondent. Therefore, the Panel agrees with prior UDRP panels that the Complainant is required to make out a prima facie case before the burden shifts to the Respondent to show that it has rights or legitimate interests in the disputed domain name in order to meet the requirements of paragraph 4(a)(ii) of the Policy, Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455.
The Panel finds that the Complainant has satisfied this requirement, while the Respondent has failed to file any evidence or argument to sufficiently demonstrate a right or legitimate interest in the disputed domain name according to the Policy, paragraphs 4(a)(ii) and 4(c).
With its Complaint, the Complainant has provided uncontested prima facie evidence that the Respondent has no trademark, license or any similar rights to use the Complainant's trademark in the disputed domain name.
In the absence of a Response to the substance of the case, the Respondent failed to demonstrate any of the other nonexclusive circumstances evidencing rights or legitimate interests under the Policy, paragraph 4(c), or any other evidence of a right or legitimate interest in the disputed domain name. Especially, the Respondent has failed to show that the disputed domain name has been used in connection with a bona fide offering of goods or services. Furthermore, there is no indication in the current record that the Respondent is commonly known by the disputed domain name.
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.
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.
The Panel believes that the Respondent must have known the Complainant's BETS10 trademark when the disputed domain name was created on May 19, 2015, particularly given that the disputed domain name has been registered nearly four years after the Complainant's trademark and gambling business has been launched.
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
print-outs 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. 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.
Also, the Panel finds that the Respondent's failure to respond to the substance of the Complaint supports the conclusion that it has registered and is using the disputed domain name in bad faith in order to mislead Internet users.
Overall, the Panel believes that the above demonstrates a typical cybersquatting case.
The Panel therefore concludes that the disputed domain name was registered and is being used in bad faith and that the Complainant consequently has satisfied the third element of the Policy, namely, paragraph 4(a)(iii) of the Policy.
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 <bets10da.com> be transferred to the Complainant.
Kaya Köklü
Sole Panelist
Date: June 14, 2016