WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Sociedade de Lotarias e Apostas Mutuas de Macau, Lda v. Alex
Case No. D2003-0955
1. The Parties
The Complainant is Sociedade de Lotarias e Apostas Mutuas de Macau, Lda, Macau, China, represented by Johnson Stokes & Master, China.
The Respondent is Alex, Jinhui Guangzhou Guangdong, China.
2. The Domain Name and Registrar
The disputed domain name <macauslot.info> is registered with Network Solutions, Inc. Registrar.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on December 2, 2003. On December 4, 2003, the Center transmitted by email to Network Solutions, Inc. Registrar a request for registrar verification in connection with the domain name at issue. On December 8, 2003, Network Solutions, Inc. Registrar transmitted by email to the Center its verification response, confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy"), 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on December 11, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was December 31, 2003. The Respondent did not submit any response. Accordingly, the Center notified the Respondentís default on January 15, 2004.
The Center appointed Hong Xue as the sole panelist in this matter on February 4, 2004. 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 Panel has not received any further requests from the Complainant or the Respondent regarding other submissions, waivers or extensions of deadlines. There is no need as an exceptional matter, to hold any in-person hearings as necessary for deciding the Complaint, as provided for the Rules, paragraphs 12 and 13. Therefore, the Panel has decided to proceed under the customary expedited nature contemplated for this type of domain name dispute proceeding.
The language of the proceeding is English, as being the language of the Domain Name Registration and Service Agreement, pursuant to the Rules, paragraph 11(a), and also in consideration of the fact that there is no express agreement to the contrary by the Parties. In addition, pursuant to the Rules, paragraph 10(b), and in consideration of the circumstances of this administrative Proceeding, the Panel, for the purpose to ensure that each Party is given a fair opportunity to present its case, takes into account the evidential materials provided in Chinese as well.
4. Factual Background
The Complainant was established in 1989, and has since at least 1998 used the trademark "Macauslot" in its business of legal betting and sports information services. On February 7, 1998, the Complainant registered the domain name <macauslot.com>, under which the Complainant has been operating its official website providing soccer and basketball news and information to Internet users, in particular, to the Chinese language community. On September 11, 2003, and November 19, 2003, the Complainant has, inter alia, applied for registration of its trademark "Macauslot" with the Hong Kong and Macau Trademark Authorities, respectively. Both applications are pending and have not been finally approved to date.
5. Partiesí Contentions
The Complainant was established in 1989. It is the only legal operator of both soccer and basketball betting businesses in Macau and certain parts of Asia. The Complainant is the proprietor of the "MACAUSLOT" trademark. The word "Macauslot" is derived from the company name of the Complainant "Sociedade de Lotarias e Apostas Mutuas de Macau, Lda". The Complainant has since at least 1998 used "Macauslot" in its business of legal betting and sports information services. The mark "MACAUSLOT" has since then been exclusively used and advertised by the Complainant.
Since 1998, the Complainant has been operating its official website under the domain name <macausolot.com>, through which the Complainant provides soccer and basketball news and information to Internet users free of charge. The Complainantís website is one of the most popular sports information website in the Chinese language community. The Complainantís website has a hit-count of 30 million per month, which is amongst the top 200 websites worldwide in terms of hit-count per mouth.
On February 7, 1998, and April 27, 2000, the Complainant had registered, inter alia, respectively the domain names <macauslot.com> and <macau-slot.com>.
Furthermore, the Complainant has applied to register "Macauslot" in Hong Kong on September 11, 2003, in class 41 in respect of "sports results services; sports information services" under application number 300077698. The application has been published as accepted for registration on October 24, 2003. The Complainant has also applied to register the mark in Macau on November 19, 2003, in class 41 in respect of "betting services", etc., under application number N/012502(303).
Due to extensive advertising and promotion, the Complainant has established a protectable reputation in the mark "Macauslot" and the Complainantís website, and the trade and the public will associate the mark and the Complainantís website exclusively with the Complainant.
It has recently come to the Complainantís attention that the Respondent has registered the disputed domain name <macauslot.info> without its knowledge and authorization. The domain name is identical to the mark in which the Complainant has rights.
The Respondent has no right or legitimate interests in respect of the disputed domain name because the Respondentís name is different from the disputed domain name. The Respondent is therefore not commonly known by the disputed domain name. As can be observed from the WHOIS search, the Respondent has actually not given his full name and address for the registration record.
Further, the Complainant submits that the disputed domain name was registered and used in bad faith. The Respondent has attempted to confuse and mislead the public into believing that the website operated under the disputed domain name, which provides sports information services, is connected to or authorized by the Complainant and/or the Complainantís website:
(a) On the top left corner of every page and the right hand side of the main page of the Respondentís website, a mark which is nearly identical with or confusingly similar to the "SOCCER DEVICE" trademark designed and registered by the Complainant in Macau in class 41 in respect of "education and entertainment services" on June 6, 2001, under registration number N/007526, is reproduced without the Complainantís authorization.
(b) The design of the top frame of the Respondentís website is confusingly similar to the design of the top frame of the Complainantís website. The background patterns of the two said top frames are nearly identical except that they are in different colors.
(c) On the main page of the Respondentís website, the website address of the Complainantís website "www.macauslot.com" and the website address of the Respondentís website "www.macauslot.info" were shown next to each other. There is no statement in the website clarifying that the two websites are unrelated.
(d) On the "joint membership" page of the Respondentís website, the website addresses of the Complainantís website and the Respondentís website were again shown next to each other, together with misleading statements in Chinese meaning: "www.macauslot.info--substantial and solid information services website; www.macauslot.com - the first legal betting company in Asia; Authoritative web addresses, substantial and solid betting information services websites". Clearly, a false association with the Complainant is intended by the Respondent.
The Respondent has been operating his website for commercial gain. On the "joint membership" page, it is stated that the membership fee for subscribing the services provided by the Respondent and/or the Respondentís website is $ 1,000 per match, and that any interested person shall contact the webmaster by "QQ" at a phone number or by email.
The Complainantís authorized representative has sent a cease and desist letter to the Respondent on July 17, 2003, by email and by fax. The Respondent has failed to respond to date.
The Complainant reiterates that it has legitimate rights to use the name/mark "MACAUSLOT". It is the Complainantís submission that the Respondent has deliberately registered the disputed domain name in order to attract, for commercial gain, Internet users to the Respondentís website, by creating a likelihood of confusion with the Complainantís mark and the Complainantís website as to the source, sponsorship, affiliation or endorsement of the Respondentís website or of the service on Respondentís website.
The Complainant also submits that the Respondent has registered the disputed domain name primarily for the purpose of disrupting the business of the Complainant as a competitor.
The Respondent did not reply to the Complainantís contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
Pursuant to the Policy, paragraph 4(a)(i), a complainant must prove that the domain names are identical or confusingly similar to a trademark or service mark in which the complainant has rights.
In line with such provision, the Complainant must prove two aspects, i.e. it enjoys the trademark rights; and, the disputed domain name is identical or confusingly similar to its trademark or service mark.
The Complainant has used the mark "MACAUSLOT" in its business of legal betting and sports information services since 1998. The Complainantís official website under the domain name <macauslot.com> has become one of the most popular sports information websites in the Chinese language community. Even the Respondent acknowledged in its website that "www.macauslot.com" is "the first legal betting company in Asia". Notwithstanding the fact that the mark "Macauslot" has not been registered, it has become exclusively associated with the Complainant in the business of sports betting through extensive use and promotion. The Panel, therefore, finds that the Complainant has become the proprietor of the mark "MACAUSLOT".
The disputed domain name <macauslot.info>, except for the generic top-level domain designation ".info", is identical with the Complainantsí mark.
The Complainant having successfully proved the two key points, the Panel, therefore holds that the Complaint fulfills the condition provided in the Policy, paragraph 4(a)(i).
B. Rights or Legitimate Interests
The Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain name. Where, as here, the Complainants have raised a prime facie presumption of the Respondentís lack of such right or interest, and Respondent has failed to rebut that presumption, the Panel is entitled to accept Complainantsí assertion. As provided for by the Rules, paragraph 14, the Panel may draw such inference from the Respondentís default, as it considers appropriate.
The Panel therefore finds that Complaint fulfills the condition provided in the Policy, paragraph 4(a)(ii).
C. Registered and Used in Bad Faith
A non-exhaustive list of what constitutes bad faith registration and use is set out in the Policy, paragraph 4(b), including the circumstances indicating that a respondent has, by using the domain name, intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of its website or location or of a product or service on its website or location.
Both the Respondent and the Complainant are in the same field of business and using the websites to provide the betting information services. The Panel finds that the Respondentís website "www.macauslot.info" is using a domain name identical to the Complainantís mark "MACAUSLOT", imitating the design of the Complainantís official website, reproducing the Complainantís registered mark "SOCCER DEVICE", and referring to the Complainantís web address and business to promote its membership services for $1000 per match. Obviously, the Respondent is intentionally attempting to attract, for commercial gain, the Internet users to its website, by creating a likelihood of confusion with the Complainantís website and trademark as to the source, sponsorship, affiliation or endorsement of its website or of the services on its website.
Based on the above finding, the Panel rules that the Respondent registered and used the disputed domain name in bad faith pursuant to the Policy, paragraph 4(b)(iv), and thus the Complaint fulfills the condition provided in the Policy, paragraph 4(a)(iii).
For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name, <macauslot.info>, be transferred to the Complainant.
Date: February 18, 2004