The Complainant is Gustav Hansen a.k.a. Gus Hansen of Monte Carlo, Monaco, represented by SafeNames Ltd., United Kingdom of Great Britain and Northern Ireland.
The Respondent is Kudashov of Odessa, Ukraine.
The disputed domain name <gushansen.com> is registered with Intercosmos Media Group d/b/a directNIC.com.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 14, 2009. On July 15, 2009, the Center transmitted by email to Intercosmos Media Group d/b/a directNIC.com a request for registrar verification in connection with the disputed domain name. On July 15, 2009, Intercosmos Media Group d/b/a directNIC.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on July 20, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was August 9, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on August 11, 2009.
The Center appointed Andrew Frederick Christie as the sole panelist in this matter on August 14, 2009. 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 Complainant is a professional player of the card game Poker. He plays under the name “Gus Hansen” – Gus being an abbreviation of Gustav. The Complainant went professional in 1997 after previously embarking on a career in the United States of America playing Backgammon.
The Complainant is a regular participant on the poker circuit and tours. The Complainant has participated in the European Poker Tour, the World Poker Tour, the World Series of Poker, the European Poker Masters and the Betfair Asian Poker Tour as well as the Aussie Millions. In May 2002 the Complainant won the WPT Five Diamond World Classic, receiving a USD 556,460 cash prize. The Complainant also won the LA Poker Classic event of June 2003, netting a USD 532,490 prize. The Complainant has won 3 World Poker Tour Open Tournaments, resulting in his induction into the World Poker Tour Walk of Fame in 2004. He came 2nd in the 2008 World Poker Tour Championship. His notoriety and success in Poker has led to an article on him in Wikipedia, first created in September 2004.
The Complainant provides a number of products and services under the name “Gus Hansen”. In 2008 he published a book titled “Every Hand Revealed”, which has sold approximately 60,000 copies in the United States. The Complainant has also produced several DVD's providing advice on playing Poker and it's rules, including “Going all In” (2005) alongside three other Poker players. The Complainant also appears in the DVD “Texas Hold ‘Em Poker Advanced Strategies” DVD (2005). As well, the Complainant sells T-shirts and card covers under the name “Gus Hansen”. The Complainant is listed as a member of “Team Full Tilt” on the Full Tilt Poker website at “www.fultiltpoker.com”. In that capacity, the Complainant provides podcasts of Poker techniques and playing tips to subscribers and members, and “Pro Chats” answering Poker-related questions from the public. The Complainant actively participates in advertising that uses the name “Gus Hansen”. In particular, he founded, launched and endorsed the “Poker Champs” free gambling software application in 2003, and he has been a spokesperson for clothing range “Frank Q” since 2007.
The domain name was first registered on October 2, 2003. The domain name is currently used as the URL for a website that contains images of the Complainant and that mimics the Complainant's authentic website at “www.gushansenpoker.com”. The Respondent's website invites visitors to join and play Poker online with PartyPoker.com. PartyPoker.com is a direct competitor with Full Tilt Poker, with which the Complainant has an exclusive contract.
The Complainant contends that he has unregistered common law rights in the name GUS HANSEN. In particular, the Complainant contends that his use of the name GUS HANSEN in respect of the products and services supplied by him has generated a reputation in the name such that the name amounts to an unregistered trademark owned by him. The Complainant further contends that the disputed domain name is identical or confusingly similar this trademark.
The Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain name. In particular, the Complainant contends that the Respondent has not become commonly known by the name “Gus Hansen”, has no trademark registrations for or relating to that name, and is not affiliated with or related to the Complainant.
The Complainant contends that the Respondent registered and is using the domain name in bad faith. In particular, the Complainant contends that by using the disputed domain name as a URL for an unauthorised, mimicking website that directs visitors to a competing online Poker service, the Respondent is intentionally attempting to attract, for commercial gain, Internet users by creating a likelihood of confusion with the Complainant's trademark as to the source sponsorship, affiliation, or endorsement of the website or a product or service on the website, within the realm of paragraph 4(b)(iv) of the Policy.
The Respondent did not reply to the Complainant's contentions.
The following two matters are well established under the Policy: (i) a person's name may constitute an unregistered mark; and (ii) an unregistered mark may constitute a trademark in respect of which an action may be brought under the Policy. Numerous decisions under the Policy have established that an unregistered mark will be a trademark for the purposes of the Policy where the mark has become a distinctive identifier that, in the minds of consumers, associates the complainant with goods or services provided by the complainant in trade or commerce. It follows that a person's name, even though not registered as a trademark, will constitute a trademark on which an action may be brought under the Policy where the name has been used by the person in connection with the supply of goods or services in trade or commerce and, by virtue of that use, consumers associate those goods or services with that person.
The Complainant has used the name GUS HANSEN in connection with the supply of various goods and services in trade or commerce. That use has been sufficiently substantial to satisfy this Panel that consumers associate those goods and services with the Complainant – and, therefore, that GUS HANSEN constitutes an unregistered trademark for the purposes of the Policy. The disputed domain name is identical to the Complainant's unregistered trademark (once the “.com” is ignored). Thus, the Complainant has established that the disputed domain name is identical to a trademark in which the Complainant has rights.
The Respondent is not associated with, or licensed by, the Complainant or any business conducted by the Complainant under the GUS HANSEN trademark. The Respondent has not asserted that it has any rights or legitimate interest in the disputed domain name, and given that the disputed domain name is identical to the Complainant's name and trademark it is difficult to conceive of any such rights or interests. This Panel is satisfied that the Respondent does not have any rights or legitimate interests in the disputed domain name.
Given the notoriety of the Complainant, and the Complainant's substantial use of his name as trademark, it is almost impossible to believe that the Respondent was unaware of the Complainant's trademark when the Respondent registered the disputed domain name. The Complainant has provided evidence, which the Respondent did not contest, that the Respondent has used the disputed domain name as the URL for a website that purports to be the authentic website of the Complainant but which in fact directs visitors to the website of a online Poker service that is a direct competitor of the online Poker service with which the Complainant is connected. This use of the domain name is an intentional attempt to attract, for commercial gain, Internet users to that web site by creating a likelihood of confusion with the Complainant's trademark as to the source, sponsorship, affiliation, or endorsement of the web site or location or of a product or service on the web site. Pursuant to the paragraph 4(b)(iv) of the Policy, this is evidence of the registration and use in bad faith of the disputed domain name. This Panel is satisfied that the Respondent registered and is using the disputed domain name 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 name <gushansen.com> be transferred to the Complainant.
Andrew Frederick Christie
Dated: August 28, 2009