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WIPO

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Microgaming Systems Anstalt v. Sergey Milutin

Case No. D2002-0213

 

1. The Parties

Complainant is Microgaming Systems Anstalt, c/o Paul Novellie Legal Practitioners, 69 Athol Street, Douglas, Isle of Man IM11JQ, United Kingdom. Complainantís authorised representative is Neil Duncan Dundas (Attorney) Bowman Gilfillan Incorporated, P.O Box 3511, Halfway House 1685, South Africa.

Complainant has named two Respondents. First Respondent is Mr. Sergey Milutin, P.O Box 1141, Ekaterinburg, NA620063, Russian Federation. Second Respondent is the Internet Gaming Corporation Limited, 1st Floor, Starlight House, 1 Wessel Road, Rivonia, Johannesburg, 2128, South Africa.

 

2. Domain Name and Registrar

The domain name at issue is <cybercashsplash.com>.

Registrar is Stargate Communications, Inc. 2805 Butterfield Road, Suite 100, Oak Oak Brook, IL 60523, United States of America.

 

3. Procedural History

The World Intellectual Property Organization Arbitration and Mediation Center (the Center) received a Complaint from Complainant on March 5, 2002, after which date an extensive e-mail correspondence took place between, on the one hand, the Center and, on the other hand the Parties. On July 9, 2002, the Center received an "amended Complaint" in e-mail form, which was received in hardcopy form on July 15, 2002. That Complaint named as Respondents Sergey Milutin (1st Respondent) and the Internet Gaming Corporation Limited (2nd Respondent).

On July 18, 2002, the Center issued a Request for Registrar Verification and received such a Verification on July 22, 2002.

According to the Registrar Verification:

- The Complaint had not been received by the Registrar.

-The domain name <cybercashsplash.com> is registered with Stargate Communications, Inc.

-The domain name is registered by Mr. Sergey Milutin (Respondent), P.O.  Box 1141, Ekaterinburg, NA620063, Russian Federation,

-Administrative Contact, Technical Contact and Billing Contact is Mr.  Milutin under the same address.

-The Uniform Domain Name Dispute Resolution Policy ("the Policy") applies.

-The domain name has been placed on Registrar-Lock.,

-The language of the registration agreement is English, and

The domain name registrant has submitted to the jurisdiction of the principal office of the Registrar.

On July 23, 2002, the Center drew up a Formal Requirements Compliance Checklist and issued the same day a Notification of Complaint and Commencement of Administrative Proceeding, which was communicated to the Parties as well as to the Registrar and to ICANN.

On August 9, 2002, the Center received a Response in e-mail form which was also received in hardcopy form on August 15, 2002. On August 12, 2002, the Center received a Communication from Respondent. An acknowledgement of Receipt (Response) was issued on August 13, 2002.

The Center invited Mr. Henry Olsson to serve as Sole Panelist and received, on August 19, 2002, Mr. Olssonīs Statement of Acceptance and Declaration of Impartiality and Independence. On August 20, 2002, the Center appointed Mr. Olsson as Sole Panelist and issued a Notification of Appointment of Administrative Panel and Projected Decision Date, which was duly communicated to the Parties. The Projected Decision Date was September 3, 2002.

The Sole Panelist considers that the Administrative Panel was properly constituted and appointed in accordance with 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").

 

4. Factual Background

Complainant is a company with limited liability incorporated under the laws of Liechtenstein and whose main business activities include on-line casino and gaming software and systems.

First Respondent'īs business acitivities include, inter alia, the development of Russian e--commerce and payment systems.

No special information has been given in the Complaint about Second Respondentís activities.

In accordance with Paragraph 3(b)(xiii) of the Rules, Complainant agrees to submit, only with respect to any challenge that may be made by Respondents to a decision by the Administrative Panel to transfer or cancel the domain name that is the subject of this Complaint, to the jurisdiction of the courts of the principal office of the concerned Registrar.

 

5. Parties Contentions

Both Complainant and First Respondent have submitted extensive argumentation to support their contentions and also extensive documentary evidence. In the following summary of the contentions, the Panel does not refer to all the details of the different statements made or their supporting evidence but only to such that are necessary for the consideration of the various issues that form the basis for the decision.

A. Complainant

Background

Complainant first states that it was founded in Durban, South Africa, in 1994 and that the original office in Durban is operational, despite the fact that the head office is now located in the Isle of Man.

As an initial statement, Complainant submits that the domain name <cybercashsplash.com> is confusingly similar to Complainantís well-known trademark "Cash Splash" and that Internet users accessing a website associated with the domain name at issue will be confused into believing that the domain name is that of Complainant or that Complainant is associated with or endorses First Respondentís business which it clearly does not.

First Respondent registered the <cybercashsplash.com> domain name on March 24, 2002, that is almost three and a half year after the Complainant first started using and actively marketing its above-mentioned trademark. The domain name was registered while it was the subject of an Administrative Proceeding under the Policy against Second Respondent. On March 15, 2002, Complainant submitted a Complaint against Second Respondent. Subsequent to that date and while that proceeding was under way the domain name at issue lapsed due to the non-payment of renewal fees. Thereafter, on March 24, 2002, First Respondent registered the domain name despite the fact that the Registrar of Second Respondent should have effectively frozen the domain name pending the outcome against that Respondent. Following some communications with the Center, Complainant was informed that it had the option to proceed directly against First Respondent. On May 21, 2002, a letter of demand was addressed to First Respondent demanding the transfer of the domain name to Complainant. This was refused by First Respondent in an e-mail of May 22, 2002, to Complainant. . Complainant has as evidence submitted copies of these documents.

Complainant submits that the domain name at issue is identical or confusingly similar to a trademark or a service mark in which Complainant has rights, that First Respondent has no rights or legitimate interests in respect of the domain name and that the domain name was registered and is being used in bad faith.

Complainantís Rights to the Domain Name and the Issue of Confusing Similarity

As a general statement Complainant alleges that it has made extensive commercial use of its trademark "Cash Splash" and that Complainantís goods and services are extremely well-known to the online gaming industry and public. Complainant is, according to the Complaint, world leader in the development of online casino and gaming software and systems, which is in fact its principal business. Complainant has submitted a brochure relating to the various products offered by Complainant, including progressive jackpots such as "Cash Splash" and other online casino management and administration tools. To support its contentions in this respect, Complainant has submitted also a number of quotations from and references to articles in specialised journals and magazines. Complainant also licenses its products to third parties, and in 1999 alone the various licensed online casinos paid out over USD 3,000,000.00 to customers through the "Cash Splash" game, which, according to Complainant, is the first progressive jackpot on the Internet.

Complainant furthermore states that there are, according to the Internet Gaming Commission, approximately 1,300 online gaming establishments; Complainant has also submitted an article from ZDNetīs PC Magazine of August 21, 2001, according to which, at that time, Internet gaming accounted for USD 3.1 billion dollars in trade and attracted more than 6 million users worldwide.

According to Complainant, third parties or operators that want to utilise Complainantís products and services (software) may select from a number of software products, of which "Cash Splash" is one of the more popular products made available by Complainant, and is currently available at over more than 45 independent online casinos which receive many thousands of visitors every day.

In order to fully utilise its "Cash Splash" product Complainant registered the domain name <cashsplash.com> on November November 5, , 1998, which has been associated with the website "www.cashsplash.com" ever since. Complainant has filed trademark applications in Classes 9 and 41 for "Cash Splash" as a word mark and a device mark. . According to Complainant, applications are pending in Australia,. Canada, United States and South Africa, and registration has been granted in the United Kingdom. Complainant has submitted copies of certificates relating to the registration in the United Kingdom.

Finally, as regards this part of the Complaint, Complainant states that a substantial amount of goodwill now vests in the "Cash Splash" product; Complainant has also developed, inter alia, a distinctive logo device incorporating the words "Cash Splash".

In summary, Complainant submits that "Cash Splash" is a well-known mark with considerable goodwill and repute attached to it.

First Respondentís Rights or Legitimate Interests in the Domain Name

Complainant submits that First Respondent has no legitimate claims to the domain name at issue. According to Complainant, when using "Cash Splash" as a search parameter in various Internet search engines it is Complainantís product that dominates all results but no links or references are revealed to the First Respondentís Internet website or business. This search result was found also when using predominantly Russian search engines.

According to Complainant, First Respondent initially posted a website at the <cybercashplash.com> domain name claiming that the website was about "cybercash" and various digital money systems. Complainant submits that First Respondent has tried to justify its claim to the domain name by suggesting, on the website, that it refers to a "splash of cybercash." Complainant suggests that it is strange that the website was indicated to be non-commercial, something that is not consistent with the use of the commercial domain ".com". Complainant mentions that at First Respondentís present website, the initial text has been removed and Internet users are now directed to First Respondentís "live" website in Russian. Complainant suggests that the website is not in Russian as the printout consists of only non-sensical characters and that the following text seems to have been copied from other sources. Complainant finds it strange that the first website was in English while it was clearly stated that it was directed to Russian citizens. According to Complainant, various elements, including that both the initial webpage and subsequent pages are of a bad quality, indicate that First Respondent only tries to justify its claims to the domain name at issue. Complainant has submitted printouts of the webpages concerned.

For the reasons now mentioned, Complainant submits that First Respondent has no rights or legitimate interests in the domain name <cybercashsplash.com>. First Respondent has never, according to Complainant, been known or ever traded under the mark "Cash Splash" nor has it ever developed any independent reputation or goodwill in the name. Complainant submits that First Respondent is knowingly infringing Complainantís rights in the trademark "Cash Splash", something that becomes apparent from the fact that even when using the term "Cyber Cash" as a search parameter in a search engine, no reference is found to First Respondentís business but rather references to Verisignís "Cyber Cash" product dominate the results.

First Respondentís Registration and Use in Bad Faith.

The various circumstances which Complainant invokes in this respect are basically included in the statements referred to under the previous headings. Complainant submits that First Respondent intentionally attempted to attract Internet users to its website by creating a likelihood of confusion with Complainantís mark as to the source, sponsorship, affiliation, or endorsement of First Respondentís website or location or of a product or service on First Respondentís website or location. By registering <cyberscashsplash.com> First Respondent is seeking to disrupt the business of Complainant by passing off its business for that of Complainant and thus benefiting at Complainantís expense.

For the reasons now mentioned Complainant submits that the domain name at issue was registered and is being used in bad faith by First Respondent.

Remedies Requested

In accordance with Paragraph 4(b)(i) of the Policy and for the reasons described, Complainant requests that the Administrative Panel issue a decision that the domain name <cybercashsplash.com> be transferred to Complainant.

B. Respondent

First Respondent requests the Administrative Panel to deny the remedies requested by Complainant and asks the Panel to make a finding of reverse domain name highjacking.

First Respondent furthermore requests that Second Respondent be withdrawn from the case, mainly referring to the fact that First Respondent registered the domain name at issue at a time when that domain name was out of control of the Registrar of Second Respondentís registration and that it there would be no obligation for that Registrar to maintain or lock the registration because of unpaid renewal fees.

First Respondent has submitted a number of pieces of evidence to support its contentions relating to Complainantís allegations. Those evidential documents are not all referred to here.

As a background First Respondent submits that it is the authorised representative of a Russian e-commerce and payment system called "Webmoney". Its business activities include referring new members to payment systems, consultations, selling access cards ("cybercash" money for real money), verification of details about new members member support, etc. . The business started in 2001 and it was mostly run off-line. On March March 24, 2002, First Respondent registered <cybercashsplash> for its website. . That name was, according to First Complainant, together with ".com" an appropriate name, containing generic words to describe First Respondentís website (e-commerce, cash, splash, cybercash). The name was free and there are, according to First Respondent, a number of domain names and websites relating to "cyber cash" (<cybercash.com>, <cybercashcentral.com>, etc), and there are also a few other domains and business directly related with "cashsplash" (<cashsplash.tv> and five or six others). First Respondent suggests that a domain name related to "cyber cash" can not be exclusively associated with Complainantís gambling business. According to First Respondent, the question is if every owner of a trademark like "cybercash" or "cashsplash" have the exclusive right to use the domain "cybercashsplash") and, if so, which one. With reference to a number of decisions under the Policy, First Respondent suggests that it should be the first person to register the domain name and that in fact a Respondent has rights or legitimate interests in the domain name if that is comprised of genetic and/or generic terms and not exclusively associated with Complainantís business.

Respondent furthermore suggests as an additional evidence of legitimate interest that it started the development of the "www.cybercashsplash.com" website immediately after registering the domain name at issue and before receiving any notice concerning the dispute. In this respect First Respondent has submitted a statement in English from a website hosting/development company concerning the purchase of its services to develop the website (for hosting from March 25 to June 24, 2002, 750 Roubles and for website design services for "www.cybercashsplash.com" 7,400 Roubles as pre-payment). First Respondent also refers to some previous decisions under the Policy, to the effect that preparations to use a website before any notice of a dispute could show legitimate rights or interests in a domain name.

As to Complainantís allegations that it has been unable to find any information concerning First Respondentís website through search engines, First Respondent alleges that the domain name was registered in March, 2002, and the first version of the website was ready in late May; this is not sufficient time for search engines to index a site unless payment is made for an expedited procedure.

Identity or Confusing Similarity

In this respect, First Respondent suggests that there is no identity between the domain name at issue and the trademark "cash splash" and leaves it open ("I have no idea") whether there is similarity, but even if it were to be considered as similar, there is no confusion. First Respondent and Complainant are not competitors and First Respondent maintains its cybercash-related website in Russian for Russian visitors. Furthermore, all virtual casinos offering cashsplash games do in fact prohibit Russian citizens from taking part in casino activities. Therefore, Complainant would not have any interest in Russian websurfers and First Respondent would have no interest in non-Russian ones as First Respondentís business and website are in Russian; there could thus be no confusion.

Registration and Use in Bad Faith

First Respondent alleges in the first instance that it never heard of Complainant before March 26, 2002, when it received a Notification of Complaint and Commencement of Administrative Proceeding between Complainant and Internet Gaming Corporation. The domain name at issue was registered before that date. . Complainant offers no services to Russian citizens and Complainant has no trademark registrations in the Russian Federation. According to First Respondent, it did not have Complainant in mind when registering the domain name at issue and a recent case ( IMMEDIATE Software für Marketing und Media and Uwe Czaia v. emmediate WIPO Case No.  DBIZ2001-00007) has made it clear that the list of circumstances showing bad faith in Paragraph 4(b) of the Policy is not exhaustive but that they all have in common one feature, namely that at the time of registration of a domain name Respondent had Complainant in mind. First Respondent furthermore stresses, among other matters, that it never offered the domain name for sale, that there is no registration pattern, that it had no intention to disrupt Complainantís business as they are not competitors, and that the site is in Russian for Russians while Complainant does not offer services to Russians and is not known in Russia.

As regards Complainantís allegations about the first version of the webpage which was in English, First Respondent alleges that that page was created before Respondent heard about the first Administrative Proceeding. That website was published because it was the first webpage that was ready and that it was vitally important for First Respondentís project to get in contact with possible foreign partners, for instance in order to attract advertising. The webpage itself does not sell anything and was thus non-commercial.

As regards the actual version of the webpage Ė in Russian Ė First Respondent states that Complainant must have a computer which is not Russian-enabled; all Russian visitors to the webpage see the Russian characters while it is unpredictable what foreign computers will see when accessing a website in Russian. First Respondent has submitted a technical explanation about the multiple encoding possibilities in relation to the Russian language and how.

First Respondent also contends that when it received a notification about the Administrative Proceeding between Complainant and Internet Gaming Corporation on March 26, 2002, First Respondent immediately sent an e-mail to the Center stating that it was not a "gaming corporation" and had acquired the domain name in good faith through a new registration. If First Respondent had been in bad faith it could easily have ignored the notification which would have allowed the Administrative Proceeding at that time to continue and First Respondent could have continued to be the owner of the domain name at issue despite the results of the Administrative Proceeding involving the Second Respondent.

Finally, First Respondent refers to several earlier decisions under the Policy where Panels have declined to recognise bad faith by Respondents in countries different from that in which a Complainant or its trademark have a reputation.

Reverse Domain Name Highjacking

In this respect, First Respondent invokes a number of circumstances of which most have been referred to under previous headings in this part of the decision. Basically, First Respondent alleges that Complainant has abused the WIPO Administrative Proceeding Process multiple times. Among the particular elements in this context, First Respondent specially stresses that Complainant violated various provisions in the Rules both in submitting the present version of the Complaint and in the procedural history related to the previous Administrative Proceeding against what is now named as Second Respondent. Furthermore, according to First Respondent, Complainant has provided no evidence of bad faith at the time of the registration of the domain name at issue; as regards use in bad faith, Complainant has, according to First Respondent, failed to explain how First Respondent could have had commercial gain from so-called "likelihood of confusion" in the case of different languages, different geographical areas, different potential visitors and users and different activities. According to First Respondent, Complainant submitted the Complaint despite the fact that there was no proof to the effect that First Respondent heard of Complainant before registering the domain name, that Respondent tried to sell the domain name, that First Respondent had any intent to disrupt Complainantís business or tried to attract users for commercial gain by creating a likelihood of confusion with Complainantís trademark or in any other way provided sufficient evidence about bad faith on the side of First Respondent. . Furthermore, First Respondent alleges that Complainant was fully aware of the general meaning of the domain name of the issue and that not only Complainant could have reason to use the domain name but was aware of, for instance, "Verisign Cybercash" as that was mentioned in the Complaint.

In such situations, various previous Decisions by Administrative Panels, to which First Respondent makes reference, have found a reverse domain name highjacking to be present.

 

6. Discussions and Findings

Paragraph 15 of the Rules prescribes that the Panel shall decide a Complaint on the basis of the statements made and documents submitted and in accordance with the Policy, the Rules and any principles of law that it deems applicable.

From the Registrar Verification follows that the Policy is applicable in this case. Consequently, Respondent is required to submit to a mandatory administrative proceeding as now initiated in respect of the domain name at issue.

Paragraph 4(a) of the Policy directs that Complainant must prove each of the following:

- that the domain name registered by Complainant is identical or confusingly similar to a trademark or a service mark in which Complainant has rights

- that Respondent has no rights or legitimate interests in the domain name, and

- that the domain name has been registered and is being used in bad faith.

As Complainant has mentioned two Respondents, the Panel also has to consider the issue of the identity of Respondent in this case, against which the legal effects of this decision are to be directed.

In addition, the Panel has to consider the request for a finding on Reverse Domain Name Highjacking or in other words, if the circumstances mentioned in Paragraph 15(e) of the Rules are present.

In the following parts of this Decision the Panel discusses each of those elements.

Identity of Respondent

From the Registrar Verification submitted in this case follows that the Registrant of the domain name <cybercashsplash.com> is Mr. Sergey Milutin. According to the Parties, the domain name was registered on March 24, 2002, by Mr. Milutin, while the Center received the Complaint in this Administrative Proceeding only on July 9, 2002. The Panel therefore finds that the correct Respondent is Mr. Milutin against whom consequently the legal effects are to be directed. The Complaint in so far as it is directed against Second Respondent in this case, the Internet Gaming Corporation Limited, shall consequently be dismissed.

Identity or Confusing Similarity

Complainant has, according to Paragraph 4(a) (i) of the Policy, to prove that the domain name at issue is identical with or confusingly similar to a trademark or a service mark in which Complainant has rights.

The domain name at issue is <cybercashsplash.com>.

Complainant has stated that it filed applications for registration in classes 9 and 41 in Australia, Canada, the United States and South Africa of the trademark "cash splash". According to a copy of a registration certificate, Complainant obtained registration for that trademark in one country, namely the United Kingdom.

On the basis of the facts present and proved in this case the Panel finds it to be established that in fact Complainant has trademark rights at least in the United United Kingdom for the trademark "cash splash".

There is certainly no identity between the domain name at issue and the trademark but there are obvious similarities between them, as regards at least the distinctive parts "cash" and "splash". The differences consist of the addition of the notion "cyber" in the domain name as well as the notion ".com."

In the view of the Panel it is somewhat doubtful if confusing similarity really exists between the trademark "cash splash" and the domain name <cybercashsplash.com>. The Panel is, however, inclined to find that the addition of the notions mentioned above does not remove the likelihood of confusion and the Panel comes to the conclusion that for the purposes of this case there exists a confusing similarity between the domain name and Complainantís trademark. As becomes clear from the subsequent parts of this Decision, this finding is not decisive for the outcome of the case.

Rights or Legitimate Interests

In this respect Complainant has, according to Paragraph 4(a)(ii) of the Policy, to prove that Respondent has no rights or legitimate interests in the domain name at issue.

To support its allegations in this context, Complainant has invoked a number of circumstances relating, inter alia, to the fact that searches using "cash splash" as parameters revealed no links or references to First Respondentís (Mr. Milutin) website or business and that the initial website was about "cybercash" and various digital money systems; according to Complainant it would appear that First Respondent tried to justify its claim to the domain name at issue in that it referred to a "splash of cybercash". Furthermore Complainant suggests that First Respondent has never been known or traded under the mark "Cash Splash" or developed any independent reputation or goodwill in that name.

First Respondentís response to those allegations is that it deals with e-commerce and payment systems and that the domain name at issue was registered because it was free and was a combination of generic notions which well described First Respondentís business; also, there were other domain names relating to "cyber cash" or "cashsplash." Furthermore, First Respondent has invoked that it started the development of the website immediately after registering the domain name and before receiving any notice concerning the dispute and that the inability to find the website in Internet search engines was due to the fact that it takes a certain time for search engines to index new sites. First Respondent has submitted certain documentation on the purchase of services from a hosting/development company to support its allegation that work on the development of the website was in fact been initiated.

The Panel notes as a basic consideration in this part of the Decision that Complainant and First Respondent are engaged in different business activities, namely on-line casino and gaming activities versus the development of digital e-commerce systems, and, furthermore, that they operate in different territories both geographically and linguistically.

In view of the obvious differences both as regards the kind of business activities and the different geographical and language areas for those activities, the Panel can not find it to be particularly strange that First Respondent chose to use the notion "cash splash" in combination with the word "cyber" for its activities, as they basically refer to First Respondentís business activities in the "digital money" field. The Panel considers that what First Respondent has submitted about the reasons for this choice has a certain credibility. In the face of First Respondentís explanations in this respect Complainant has not succeeded in proving that First Respondent has no rights or legitimate interests in the domain name.

Registration and Use in Bad Faith

In this respect, Complaint has, according to Paragraph 4(a)(iii) of the Policy, to prove that the domain name at issue has been registered and is being used in bad faith. Paragraph 4(b) then sets out the circumstances which, in particular but without limitation, shall, if found by the Panel to be present, be considered as evidence of registration and use in bad faith.

The contentions by Complainant in this respect have partially been referred also under the previous heading; in addition, Complainant has suggested that the justification by First Respondent that the domain name relates to a "splash of cybercash" is inherently artificial and has also suggested that the text on the second webpage is not in Russian but consists of non-sensical characters. According to Complainant, First Respondent has intentionally attempted to attract Internet users by creating a likelihood of confusion with Complainantís mark.

First Respondentís reply to the allegations is basically that Russian characters may appear in different ways in non-Russian-enabled computers, that it never heard of Complainant before March 26, 2002, and that Complainant does not offer services to Russian citizens and does not market in Russia while First Respondent in interested only in the Russian market. Furthermore, First Respondent alleges that it informed the Center when it received notification about Administrative Proceeding between Complainant and the Internet Gaming Corporation, something that it would obviously not have done if it had registered or used the domain name at issue in bad faith.

The Panel notes that the initial webpage in English deals with "the world of Cybercash" stating that "All the splash of cybercash in ONE place, Digital currencies payment systems, Internet banking, etc." Even if some of the contentions by First Respondent concerning the choice of the domain name may seem somewhat artificial, those contentions together with the evidence presented have, in the view of the Panel, a certain credibility. . In any case the Panel considers that Complainantís contentions and supporting documentation is not sufficient to establish that any of the circumstances mentioned in Paragraph 4(b)(i) Ė(iv) are present in this case nor that other elements are sufficiently proved which would support Complainantís allegation about registration and use of the domain name in bad faith.

Reverse Domain Name Highjacking

If after considering the submissions, a Panel finds that a Complaint was brought in bad faith, for example in an attempt at Reverse Domain Name Highjacking or was brought to harass the domain name holder, the Panel shall, according to Rule 15(e) of the Rules, declare in its decision that the Complaint was brought in bad faith and constitutes an abuse of the administrative proceeding.

First Respondent has made a number of allegations to prove that Complainant has violated a number of the Rules, abused the Administrative Proceeding mechanism and made untruthful or otherwise incorrect allegations or made allegations which it failed to prove.

The Panel can not find that Complainantís various actions in relation to the earlier Complaint filed against Second Respondent and the possible non-compliance with certain of the Rules amount to anything that could be a basis for a finding in the sense requested by First Respondent. As regards other circumstances invoked by First Respondent it has to be noted that the Complaint failed in this case largely due to an absence of sufficient proof. As far as this case is concerned, this is certainly not the same as stating that the allegations were brought in bad faith. . The Panel can therefore not find that Complainantís actions or behaviour are such that the criteria set out in Rule 15 (e) are satisfied.

First Respondentīs request for a finding of Reverse Domain Name Highjacking shall consequently be denied.

Conclusions

On the basis of the foregoing, the Administrative Panel concludes that it has been proved that confusing similarity exists between the domain name at issue and Complainantís trademark, that it has not been proved that First Respondent has no rights or legitimate interests in the domain name and that it has not been proved that the domain name was registered and is being used in bad faith. The administrative Panel furthermore concludes that the circumstances present in the case do not suffice for a finding of Reverse Domain Name Highjacking.

 

7. Decision

The Complaint against Second Respondent, the Internet Gaming Corporation Limited, is dismissed.

Complainantís request for a transfer of the domain name from First Respondent, Mr. Sergey Milutin, to Complainant is denied.

Respondentís request for a finding on Reverse Domain Name Highjacking is denied.

 


 

Henry Olsson
Sole Panelist

Dated: August 23, 2002