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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Merryvale Ltd. v. Gtrbet Network, 88

Case No. D2021-1780

1. The Parties

The Complainant is Merryvale Ltd., Guernsey, represented by Herzog, Fox & Neeman, Israel.

The Respondent is Gtrbet Network, 88, Thailand.

2. The Domain Names and Registrar

The disputed domain names <csbetway.app>, <csbetway.bet>, and <csbetway.com> (the “Domain Names”) are registered with Name.com, Inc. (Name.com LLC) (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 7, 2021. On June 7, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Names. On June 7, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Names, which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on June 21, 2021, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on June 23, 2021.

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 June 30, 2021. In accordance with the Rules, paragraph 5, the due date for Response was July 20, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 23, 2021.

The Center appointed Nicholas Smith as the sole panelist in this matter on July 28, 2021. 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

The Complainant is a United Kingdom company that is a member of the broader Betway Group of companies (“Betway Group”). The Betway Group has since 2006 operated a number of online gaming websites under the trademark “Betway” (the “BETWAY Mark”) including from its website at “www.betway.com” (“Complainant’s Website”). The Complainant’s Website had, in 2020 over 200,000 unique monthly users. In the same year the Betway Group’s marketing budget was EUR 136 million, which includes its sponsorship of the West Ham football club.

The Complainant is the owner of trademark registrations for the BETWAY Mark in numerous jurisdictions including a European Union trademark registration for the BETWAY Mark, registered from January 26, 2007 (registration number 4832325) for goods and services in classes 9 and 41.

The Domain Names were registered between January and September 2020. The <csbetway.bet> Domain Name resolves to a website (“Respondent’s First Website”) which offers a series of pay-per-click links to various third party websites, some of which refer to casino and online gaming. The <csbetway.app> and <csbetway.com> Domain Names resolves to a website (“Respondent’s Second Website”) which offers online casino and gaming services in direct competition with the Complainant. The Respondent’s First and Second Websites are collectively referred to as the (“Respondent’s Websites”).

5. Parties’ Contentions

A. Complainant

The Complainant makes the following contentions:

(i) that the Domain Names are identical or confusingly similar to the Complainant’s BETWAY Mark;

(ii) that the Respondent has no rights nor any legitimate interests in respect of the Domain Names; and

(iii) that the Domain Names have been registered and are being used in bad faith.

The Complainant is the owner of the BETWAY Mark having registered the BETWAY Mark in various jurisdictions. Each of the Domain Names incorporates the BETWAY Mark and adds a generic Top-Level Domain (“gTLD”) and the abbreviation “cs”. In each case the additions do not distinguish the Domain Names from the BETWAY Mark.

There are no rights or legitimate interests held by the Respondent in respect of the Domain Names. The Respondent is not commonly known as the Domain Names nor does the Respondent have any authorization from the Complainant to register the Domain Names. The Respondent is not making a legitimate noncommercial or fair use of the Domain Names. Rather the Respondent uses the Domain Names to operate the Respondent’s Websites which offer either gaming services in competition with the Complainant or sponsored links to casinos in competition with the Complainant.

The Domain Names were registered and are being used in bad faith. Given the Complainant’s reputation in online gaming it is highly likely that the Respondent was aware of the Complainant and its BETWAY Mark at the time of registration. Furthermore the Respondent registered and uses the Domain Names to prevent the Complainant from reflecting its BETWAY marks in corresponding domain names and for the purpose of disrupting the business of the Complainant. Finally the Respondent also uses the Domain Names for commercial gain, by creating a likelihood of confusion with the Complainant’s BETWAY Mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s Websites.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

A. Identical or Confusingly Similar

To prove this element the Complainant must have trade or service mark rights and each Domain Name must be identical or confusingly similar to the Complainant’s trade or service mark.

The Complainant is the owner of the BETWAY Mark, having registrations for BETWAY as a trademark in various jurisdictions. Each of the Domain Names wholly incorporates the BETWAY Mark in its entirety with the addition of the “cs” prefix which does not prevent the BETWAY Mark from being recognizable in the Domain Names. Consequently, the requirement of paragraph 4(a)(i) of the Policy is satisfied.

B. Rights or Legitimate Interests

To succeed on this element, a complainant must make out a prima facie case that the respondent lacks rights or legitimate interests in the domain name. If such a prima facie case is made out, then the burden of production shifts to the respondent to demonstrate rights or legitimate interests in the domain name.

Paragraph 4(c) of the Policy enumerates several ways in which a respondent may demonstrate rights or legitimate interests in a domain name:

“Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of paragraph 4(a)(ii):

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

(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or

(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.”

The Respondent is not affiliated with the Complainant in any way. The Respondent has not been authorized by the Complainant (or any other entity related to the Complainant) to register or use the Domain Names or to seek the registration of any domain name incorporating the BETWAY Mark or a mark similar to the BETWAY Mark. There is no evidence that the Respondent is commonly known by any of the Domain Names or any similar name. There is no evidence that the Respondent has used or made demonstrable preparations to use any of the Domain Names in connection with a legitimate noncommercial or fair use or a bona fide offering of goods and services; the use of the Domain Names (which contain the BETWAY Mark) for either a website offering gaming services in direct competition with the Complainant or a parking page with pay-per-click links referring to the services offered by the Complainant does not amount to use for a bona fide offering of goods and services.

The Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the Domain Names. The Respondent has failed to rebut that prima facie case and establish that it has rights or legitimate interests in any of the Domain Names under the Policy. The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Names under paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

For the purposes of paragraph 4(a)(iii) of the Policy, the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:

(i) circumstances indicating that the Respondent has registered or has acquired the Domain Names primarily for the purpose of selling, renting, or otherwise transferring the Domain Name registrations to the Complainant who is the owner of the trademark or service mark or to a competitor of the Complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the Domain Names; or

(ii) the Respondent has registered the Domain Names in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the Respondent has engaged in a pattern of such conduct; or

(iii) the Respondent has registered the Domain Names primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the Domain Names, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent’s Websites, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s Websites or of a product or service on the Respondent’s Websites (Policy, paragraph 4(b)).

The Panel finds that the Respondent must have been aware of the Complainant and its reputation in the BETWAY Mark at the time the Respondent registered the Domain Names. The Complainant’s BETWAY Mark has been in use since 2006 and had developed a considerable reputation in online gaming services at the time the Domain Names were registered. Furthermore, the Respondent has provided no explanation, and none is immediately obvious, why an entity would register three domain names incorporating the coined word “betway” (and offer competing gaming services from two of those domain names) unless there was an awareness of and an intention to create a likelihood of confusion with the Complainant and its BETWAY Mark. In these circumstances, the Respondent’s conduct in registering the Domain Names when it was aware of the Complainant’s rights and lacked rights or legitimate interests of its own amounts to registration in bad faith

The Respondent’s Websites offer either pay-per-click links to various websites, some of which are competitors with the Complainant or gaming services in direct competition with the Complainant. Given that the Respondent has offered no plausible explanation for the registration of the Domain Names the Panel finds that that the Respondent is using the Domain Names to intentionally attempt to attract, for commercial gain, Internet users to its websites by creating a likelihood of confusion with the BETWAY Mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s Websites. As such the Panel finds that the Domain Names are being used in bad faith.

Accordingly, the Panel finds that the Respondent has registered and is using the Domain Names in bad faith under paragraph 4(a)(iii) of the Policy.

7. Decision

For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Names <csbetway.app>, <csbetway.bet> and <csbetway.com> be transferred to the Complainant.

Nicholas Smith
Sole Panelist
Date: August 11, 2021

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