WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Interwetten AG v. BMG Media, Inc.
Case No. D2005-0744
1. The Parties
The Complainant is Interwetten AG, Vienna, Austria, represented by Doralt Seist Csoklich, Austria.
The Respondent is BMG Media, Inc., Delaware, United States of America.
2. The Domain Names and the Registrar
The disputed domain names <interweten.com> and <intewetten.com> are registered with CSL Computer Service Langenbach GmbH dba Joker.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 13, 2005. On July 14, 2005, the Center transmitted by email to CSL Computer Service Langenbach GmbH dba Joker.com a request for registrar verification in connection with the domain names at issue. On July 19, 2005, CSL Computer Service Langenbach GmbH dba Joker.com transmitted by email to the Center its verification response regarding <interweten.com> and <inteweten.com> 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 July 21, 2005. In accordance with the Rules, paragraph 5(a), the due date for Response was August 10, 2005. The Respondent did not submit any response. Accordingly, the Center notified to the parties the Respondent’s default on August 11, 2005.
The Center appointed Kristiina Harenko as the Sole Panelist in this matter on August 17, 2005. 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 owner of the registered trademark INTERWETTEN, which was registered on March 27, 2001.
The Complainant has also registered the domain name <interwetten.com> on March 28, 1997.
The Respondent registered domain name <interweten.com> on November 27, 2003, and domain name <intewetten.com> on June 3, 2004.
5. Parties’ Contentions
The Complainant contends that it is owner of the legally protected trademark INTERWETTEN. The Complainant is also owner of 99.995 % of the shares of Interwetten Malta Ltd. According to the Complainant Interwetten Malta Ltd is offering sports bets and the company has more than 200 000 registered customers from more than 200 countries worldwide.
The Complainant contends that the domain names <interweten.com> and <intewetten.com> are confusingly similar to the trademark INTERWETTEN owned by the Complainant. The domain names registered by the Respondent are a typical case of typosquatting. The registered domain names are not completely identical with the domain name “interwetten” but they differ only with regard to one single letter, and that leaving one single letter out cannot exclude the confusing similarity, particularly since the letter left out is a usual typing mistake. The Complainant refers to the following WIPO Cases: Volvo Trademark Holding AB v. Cosmos1, WIPO Case No. D2003-0648; National Association of Professional Baseball Leagues, Inc. v. Zuccarini, WIPO Case No. D2002-1011; Daimler Chrysler Corp. v. Carrington, WIPO Case No. D2002-0756; Pfizer Inc v. Enamecorp.com, WIPO Case No. D2001-0791. The phonetic similarity of the disputed domain names also speaks for the existing of confusing similarity.
According to the Complainant the Respondent does not have right or legitimate interests in respect of the domain names <interweten.com> and <intewetten.com> because there is no use of, or demonstrable preparations to use, the domain names in connection with a bona fide offering of goods or services. The “interweten” and “intewetten” are not registered trademarks, nor are they generally known. The Respondent’s websites “interweten.com” and “intewetten.com” do not show any independent contents but merely re-direct the users automatically to the home page “betan-win.com”. The Internet users who are interested in the betting supply of “interwetten.com” and make a typing error are diverted to a website of another betting company (“betan-win.com” / “bet-at-home.com”). This misleading is based on the confusing similarity of <intewetten> and <interweten>, which represents a trademark violation. In the case of trademark violation a legitimate use of the domain names is excluded. Consequently the Respondent has neither rights nor legitimate interests in the domain names <intewetten.com> and <interweten.com>.
The Complainant contends that the disputed domain names were registered and are being used in bad faith since:
- The disputed domain names <interweten.com> and <intewetten.com> are registered later than the domain name <interwetten.com> and one has to assume that Respondent had gained knowledge of the domain name <interwetten.com> registration and contents of the home page under the URL address “interwetten.com”.
- The Respondent has intentionally attempted to attract, for commercial gain, Internet users to his 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 his website or location or of a product or service on the website or location. There is an immediate re-direction to “betan-win.com”. The re-direction has exclusively the function to intercept persons who look for “interwetten.com” and make a typing mistake. The domain names registered by the Respondent were discovered for that very reason.
- The Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor while re-directing users to the website “betan-win.com”, which contains links to “bet-at-home.com” website including betting offers for the German linguistic area.
The Complainant submits that by means of the registration of the typing mistake domain and the re-direction, the Respondent lures Internet users in a misleading way to the home page of “betan-win.com” and by venture of a link also to “bet-at-home.com”. This results in a commercial profit for the Respondent.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Pursuant to the Policy, Complainant must convince the Panel on the following three criteria:
(i) the domain name is identical or confusingly similar to a trademark or service mark in which the Complainant holds rights; and
(ii) the Respondent has no rights or legitimate interests in the domain name; and
(iii) the domain name was registered and used in bad faith.
Under paragraph 15(a) of the Rules, this Panel must “decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”.
In view of Respondent’s failure to submit a Response, the Panel shall decide this administrative proceeding on the basis of Complainant’s undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences as it considers appropriate pursuant to paragraph 14(b) of the Rules.
A. Identical or Confusingly Similar
The Panel concludes that the Complainant, as registered proprietor of the trademark INTERWETTEN, has established rights in a trademark, sufficient for the purposes of paragraph 4(a) of the Rules. There is confusing similarity between the Complainant’s trademark INTERWETTEN and the domain names <interweten.com> and <intewetten.com>. Consequently, the first element of the Policy has been met.
B. Rights or Legitimate Interests
Paragraph 4 c) of the Policy provides a non-exclusive list of circumstances, which, if found by the Panel to be proved based on its evaluation of all evidence submitted, shall demonstrate rights to, or legitimate interests, in the domain name in dispute. Those circumstances are described as follows:
(i) before any notice to you of the dispute, our use of, or demonstrable preparations to use, the domain name or 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 in default and thus has made no affirmative attempt to show legitimate rights and interests in the domain names. The arguments by the Complainant, as summarized hereinabove under 5A, supported by means of proof submitted by the Complainant, have convinced the Panel that the Respondent does not have any rights or legitimate interests in respect of the domain name
C. Registered and Used in Bad Faith
For the purposes of determining if there was bad faith the Panel considered the circumstances of the registration and use of the domain name as set out in paragraph 4(b) of Policy noting that it does not impose any limitation on how the registration and use of a domain name in bad faith is evidenced.
The circumstances of paragraph 4(b) of the Policy involve possible bad faith motives of: (1) selling, renting or otherwise transferring the domain name for valuable consideration, (2) preventing the trademark owner from having its trademark as a domain name (provided there is a pattern of such conduct, (3) disrupting the business of a competitor or (4) attracting Internet users to a website for commercial gain by creating confusion with the complainant’s trademark.
The Panel notes that the use of misspellings in domain names alone indicates bad faith registration. In this case the last of the above bad faith motives is apparent, that is, attracting Internet users to a website for commercial gain by creating confusion with the Complainant’s trademark. There is no doubt that the Respondent was aware of the Complainant’s trademark when it registered the misspelling of the trademark. The Complainant was not only aware of the trademark but also of the business in which the Complainant’s trademark has been used. By means of the registration of the typing mistake domain and the re-direction, the Respondent lures Internet users in a misleading way to the home page at “www.betan-win.com” and by venture of a link also to “www.bet-at-home.com”. This results in a commercial profit for the Respondent.
The Panel finds that this action also disrupts the business of the Complainant by redirecting the users, who make typing errors, to the competing websites, which offer sports bets.
The Panel finds that the Respondent registered and used the disputed domain names in bad faith.
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 names, <interweten.com> and <intewetten.com> be transferred to the Complainant.
Dated: August 30, 2005