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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Omega Entertainment N.V v. Withheld for Privacy Purposes, Privacy Service Provided by Withheld for Privacy ehf / Murat Mertol

Case No. D2021-3653

1. The Parties

Complainant is Omega Entertainment N.V, Netherlands, represented by (SMES) Solutions for Management and Employment Support N.V., Netherlands.

Respondent is Withheld for Privacy Purposes, Privacy Service Provided by Withheld for Privacy ehf, Iceland / Murat Mertol, Turkey.

2. The Domain Name and Registrar

The disputed domain name <altinclubcasino.com> is registered with NameCheap, Inc. (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 2, 2021. On November 3, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 3, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on November 5, 2021, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amendment to the Complaint on November 9, 2021.

The Center verified that the Complaint together with the amendment to 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 Respondent of the Complaint, and the proceedings commenced on November 10, 2021. In accordance with the Rules, paragraph 5, the due date for Response was November 30, 2021. Respondent did not submit any response. Accordingly, the Center notified the Parties of Respondent’s default on December 1, 2021.
The Center appointed Ingrida Kariņa-Bērziņa as the sole panelist in this matter on December 7, 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.

On December 22, 2021, the Panel issued a Procedural Order requesting that Complainant provide actual evidence of its rights in the AC ALTINCASINO trademark at the time of registration of the disputed domain name. The Panel also requested that Complainant provide information about when its website at “www.altincasino.com” was established. On January 4, 2022, Complainant responded to the Procedural Order.

4. Factual Background

Complainant is a company registered in Curaçao, Netherlands, operating in the field of online gaming. Complainant operates a Turkish-language online casino at the domain name <altincasino.com>. Complainant is the proprietor of European Union Trade Mark No. 018296120 for AC ALTINCASINO (device mark), filed on August 26, 2020 and registered on December 18, 2020 for services in classes 35, 38, 41 and 42.

The disputed domain name was registered on June 20, 2020. It resolves to a Turkish-language website headed by the name “Altincasino”. The website contains information and advertisements for various online gaming platforms.

The record reflects Complainant’s notices to the Registrar requesting transfer of the disputed domain name.

5. Parties’ Contentions

A. Complainant

Complainant’s contentions may be summarized as follows:

Under the first element, Complainant states that it was incorporated as an entity on December 19, 2017, well before the registration of the disputed domain name. Complainant’s website at “www.altincasino.com” was established on April 25, 2019. Complainant uses and provides the legal right to its affiliates to use the ALTINCASINO mark. Subsequent to noticing that third parties were using its intellectual property, Complainant filed to register its AC ALTINCASINO mark. The disputed domain name is identical to Complainant’s mark, with the addition of the word “club”.

Under the second element, Complainant states that Respondent has no prior lawful use of the disputed domain name. Respondent’s website contains references to Complainant’s business and links to other websites that feature Complainant’s mark. Respondent also advertises competitors of Complainant on its website. Respondent is not conducting business under the name “altinclubcasino”, but rather under the name of “altincasino”. Respondent does not offer any of the services offered by Complainant at its website. Visitors cannot log into Complainant’s services through Respondent’s website. Respondent is baiting customers of Complainant by misrepresenting both its functionality and design being that of Complainant’s legitimate online gaming business. Respondent is not commonly known under the disputed domain name, and Respondent does not have a legitimate noncommercial or fair use of the disputed domain name.

Under the third element, Complainant states that Respondent is illegally using the disputed domain name for purposes of reselling it at a profit by taking advantage of the confusing similarity of the disputed domain name with the popular trademark held by Complainant. The registration of the disputed domain name prevents Complainant from reflecting its mark in a corresponding domain name. Respondent is passively using the disputed domain name, since the website does not possess any factual functionality. Complainant selected the disputed domain name to mislead potential clients of Complainant. Respondent has failed to respond to Complainant’s request to transfer the disputed domain name.

Complainant requests transfer of the disputed domain name.

B. Respondent

Respondent did not reply to Complainant’s contentions.

6. Discussion and Findings

Paragraph 4(a) of the UDRP requires Complainant to make out all three of the following:

(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

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

(iii) Respondent has registered and is using the disputed domain name in bad faith.

A. Identical or Confusingly Similar

To prevail under the first element, Complainant must establish that it has rights in a trade or service mark, and that the disputed domain name is identical or confusingly similar to the marks. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), Section 1.1. See also Digital Vision, Ltd. v. Advanced Chemill Systems, WIPO Case No. D2001-0827. Complainant has provided a registration document for its AC ALTINCASINO mark in the European Union which postdates the registration of the disputed domain name. Paragraph 4(a)(i) does not require that the trademark be registered prior to the disputed domain name, but only that the relevant trademark rights be in existence at the time of filing of the Complaint. See WIPO Overview 3.0, Section 1.1.3.

In comparing Complainant’s AC ALTINCASINO mark with the disputed domain name, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark. It is the consensus view of UDRP panels that, where the relevant trademark is recognizable within the disputed domain names, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element. See WIPO Overview 3.0, sections 1.7 and 1.8.

It is the well-established view of UDRP panels that the generic Top-Level Domain “.com” is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test (see WIPO Overview 3.0, section 1.11.1, and cases cited thereunder).

Accordingly, the Panel finds that Complainant has established the first element under paragraph 4(a) of the Policy.

B. Rights or Legitimate Interests

Pursuant to paragraph 4(c) of the Policy, a respondent may establish rights to or legitimate interests in a disputed domain name by demonstrating any of the following:

(i) before any notice to it of the dispute, respondent’s use 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 it 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 the trademark or service mark at issue.

In the absence of a Response, the Panel must make its determination based on the information in the record. The Panel finds that there is no evidence that Respondent is commonly known by the disputed domain name or is using the AC ALTINCASINO mark with the permission of Complainant. The nature of the disputed domain name cannot constitute fair use since it effectively impersonates or suggests sponsorship or endorsement by the trademark owner. See, for example, Iflscience Limited v. Domains By Proxy LLC / Dr Chauncey Siemens, WIPO Case No. D2016-0909; B&B Hotels v. WhoisGuard Protected, WhoisGuard, Inc. / Soro Wonna, WIPO Case No. D2020-2837.

The Panel therefore finds that the evidence submitted by Complainant establishes a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name.

Pursuant to WIPO Overview 3.0., section 2.1, and cases thereunder, where Complainant makes out a prima facie case that Respondent lacks rights or legitimate interests, the burden of production on this element shifts to Respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the disputed domain name.

Respondent, in failing to file a response, has not submitted any evidence or arguments demonstrating such rights or legitimate interests, nor has it rebutted any of Complainant’s contentions. The circumstances of the case prevent the inference of rights nor legitimate interests on the part of Respondent. There is no evidence that Respondent is known by the disputed domain name. The disputed domain name resolves to a website that presents itself as being operated by “Altincasino” and purporting to permit Internet users to log in to the online casino. Additionally, the site features advertisements of Complainant’s competitors. Such use does not establish rights or legitimate interests.

Accordingly, the Panel finds that Complainant has established the second element under paragraph 4(a) of the Policy.

C. Registered and Used in Bad Faith

To prevail under the third element, Complainant must establish that the disputed domain name was registered and is being used in bad faith.

Complainant has not provided sufficient evidence to support its contention that the disputed domain name was registered in bad faith. The disputed domain name was registered on June 20, 2020. Complainant registered its AC ALTINCASINO mark on December 18, 2020. Complainant states that its website at “www.altincasino.com” was established on April 25, 2019, but does not provide any supporting evidence for this assertion. The Panel’s review of the Internet Archive indicates that, as of May 2019, Complainant’s website was not yet operative. There is no Internet Archive data indicating the actual date of launch of Complainant’s website, nor is there any information available that would assist the Panel in ascertaining when the Complainant’s casino went online under the name “AC ALTINCASINO”. See WIPO Overview 3.0, Section 4.8. In its Procedural Order of December 22, 2021, the Panel requested that Complainant provide actual evidence of its rights in the AC ALTINCASINO mark at the time of registration of the disputed domain name, such as length and amount of sales under the trademark, the nature and extent of advertising, consumer surveys and media recognition of the mark. Complainant did not provide any such information.

It is the consensus view of UDRP panels that, absence exceptional circumstances, when a domain name is registered by a respondent before a complainant’s relied-upon trademark right, the domain name can generally not have been registered in bad faith, as the respondent could not have been aware of the non-existing complainant’s mark at the time that the disputed domain name was registered. See WIPO Overview 3.0, section 1.1.3. See also Naviswiss AG v. inLink GmbH, WIPO Case No. D2016-2339. This case raises doubts regarding the reasons why the disputed domain name was registered in the first place, and why this specific composition for the disputed domain name was chosen. However, in the absence of relevant evidence, the Panel cannot assess when and how Respondent would have been aware of Complainant and its rights in the AC ALTINCASINO mark. This is not to say that such evidence does not exist; merely that Complainant has not provided it.

Since Complainant has failed to establish bad faith registration of the disputed domain name, it is not necessary to examine bad faith use at this time.

Accordingly, the Panel finds that Complainant has failed to establish the third element under paragraph 4(a) of the Policy.

7. Decision

For the foregoing reasons, the Complaint is denied.

Ingrida Kariņa-Bērziņa
Sole Panelist
Date: January 19, 2022

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