The Complainant is bwin Interactive Entertainment AG of Vienna, Austria, represented by Brandl & Talos, Rechtsanwälte GmbH, Austria.
The Respondent is Personal, Sinyavsky Roman (or Roman Sinyavsky) of North Miami Beach, Florida, United States of America.
The disputed domain name <bwimpoker.com> is registered with Directi Internet Solutions Pvt. Ltd. d/b/a/ PublicDomainRegistry.com.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 23, 2009. On July 23, 2009, the Center transmitted by email to Directi Internet Solutions Pvt. Ltd. d/b/a/ Public Domain Registry.com a request for registrar verification in connection with the disputed domain name. On July 27, 2009 Directi Internet Solutions Pvt. Ltd. d/b/a/ Public Domain Registry.com 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.
In response to a notification by the Center, that the Complaint was administratively deficient, the Complainant filed an Amended Complaint on August 3, 2009. The Center verified that the Amended 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 August 4, 2009. In accordance with the Rules, Paragraph 5(a), the due date for Response was August 24, 2009. The Respondent did not submit a formal response.
However, on August 7, 2009 an email was sent by Mr. Roman Sinyavsky to the Center in the following terms:
“Subject: Case D2009-0992
To whom it may concern,
I, Roman Sinyavsky have been in receipt of your Notification of Complaint and commencement of the Administrative Proceeding. I have phoned your offices and have informed them that the domain name of BWIMPOKER.com was not purchased nor authorised by me. It was purchased FRAUDULENTLY on my credit card. I do not have access to this Domain Name. I have disputed these charges with my credit card company and they have credited back my card, please view attached documents. As shown, there are many fraudulent transaction on my credit card for web services that were not authorised by me and have been investigated and credit back to me. As stated to your representative, I do not have any access to this domain name nor to the email [address] that is shown on the Complaint.
Should you need any further information from me to help assist you in regards to this complaint, please feel free to contact me.
The Center responded acknowledging the email and pointing out that if the Center did not receive any communication from either the email [address] or from the postal address to which the Complaint was notified by August 24, 2009 they would continue with the next procedural steps.
The Panel has considered the email from Mr. Roman Sinyavsky. It takes the view that if, indeed, the domain name was purchased by fraudulent use of Mr. Sinyavsky's credit card, he would have no objection to a decision being reached by the Panel particularly if the Panel's decision was that the domain name should be transferred.
In this regard the Panel is also satisfied that insofar as was feasible, the Respondent as named was properly served with the Complaint. The Panel therefore proceeds to determine the Complaint on the basis of the evidence before it.
The Center appointed Clive Duncan Thorne as the Sole Panelist in this matter on August 28, 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, bwin Interactive Entertainment AG, is part of the bwin-Group which is one of the world's leading providers of on-line gaming entertainment. The Complainant is the parent company of the bwin-Group that has been listed on the Vienna Stock Exchange since March 2000. The company carries out central functions such as finance, marketing, IT, project management, international business development, brand management, human resources and corporate communications for its affiliates.
The Complainant's affiliates offer sports betting, poker, casino games, soft games and skill games as well as audio and video streams on top sport events such as the German soccer league. Moreover, the Complainant runs an on-line market together with its subsidiaries. These services are all provided by Internet and many of them are also available by other digital distribution channels, such as mobile phones. The bwin-Group derives its revenues primarily from sports betting and poker. The Complainant's main website “www.bwin.com” is operated by bwin International Limited, a company located in Gibraltar on the basis of gambling licences issued in Gibraltar under the supervision of the Gibraltar government. bwin International Limited is a wholly owned affiliate of the Complainant.
At the end of 2008 the bwin-Group had about 2.1 million active customers in many different countries all over the world and a total turnover of EUR 420.9 million consisting of gross gaming revenues. The bwin-Group has been one of the most important players in its market for many years. The website “www.bwin.com” is available in 22 different languages. In 2008, the Complainant spent EUR 123.5 million for marketing. The Complainant sponsors world famous soccer clubs like AC Milan and Real Madrid. It also sponsors the BA-CA Tennis Trophy, Moto GP in Brno, Jerez, Barcelona and Valencia, the Portuguese soccer league, the German basketball league and other events. Approximately EUR 40 million annually is spent on sports sponsorship.
The Complainant has trade mark rights in the name “bwin”. BWIN (IR No. 886220) was registered as an international trade mark on February 3, 2006 and the logo BWIN (IR No. 896530) was registered as an international trade mark on March 16, 2006. Annexed at Annex E and F to the Complaint are excerpts from the International Trade Mark Register. The marks are registered for various countries including, inter alia, Austria, Denmark, Estonia, Greece, Turkey, Russian Federation, Ukraine, Germany, United Kingdom of Great Britain and Northern Ireland, United States, Romania, Czech Republic and Hungary as well as Asian countries including the People's Republic of China. The classes the trade marks are registered for include design and development of computer hardware and software, advertising services, entertainment services and telecommunications.
The bwin-Group owns a large number of domain names incorporating the term “bwin”. A list of these is annexed at Annex G to the Complaint. By way of example, the group has registered the domain names < bwin.com>, < bwin-games.com>, < bwin-gambling.com>, < bwinleague.eu>, < bwin-sports.eu>, < bwinpoker.com>, < bwinpoker.net> and < bwinpoker.us>.
In the absence of a Response, little is known about the activities of the Respondent. At Annex K to the Complaint, the Complainant exhibits an extract from the Respondent's website which states, “register now and start playing poker”. It quite clearly relates to on-line gambling.
The Complainant also draws attention to an on-line article on the website, <www.spamfighter.com> headed “Phishing Scam Attacks Customers of Online Gambling Forum Bwin”. It sets out a warning to on-line gamblers that “fraudsters are attempting to exploit the reputation of bwin”.
In the absence of a Response, the Panel accepts that the facts set out in the Complaint by the Complainant are true.
The Complainant contends:
(a) That the domain name in dispute is confusingly similar to the trademark BWIN.
(b) The Respondent has no rights or legitimate interests in the domain name in dispute for the following reasons:
(i) There are no existing trade mark rights which would justify use of the mark in the domain name.
(ii) The Respondent is neither commonly known under the term “bwimpoker”, nor is the term “bwimpoker” part of the Respondent's name.
(iii) The Respondent does not and never did use the domain name for a bona fide offering of goods or services and is therefore not making a legitimate non-commercial or fair use of the domain name.
(c) The Respondent has registered and used the domain name <bwimpoker.com> in bad faith because:
(i) It acquired the domain name primarily for the purpose of intentionally attempting to attract for commercial gain Internet users to the Respondent's website by creating a likelihood of confusion with the Complainant.
(ii) The Respondent has attempted to confuse customers of the Complainant by using a layout and colour designs which are almost identical to the design, layout and colour as that used by the Complainant.
(iii) The Respondent has registered the domain name for the purpose of dishonestly exploiting the Complainant and phishing customer data.
The Respondent did not reply to the Complainant's contentions.
The Panel accepts, on the evidence adduced by the Complainant, that the trade mark BWIN is well-known for on-line gambling services. This was recognised in earlier WIPO cases, including bwin Interactive Entertainment AG v. Andrei Gladchih, WIPO Case No. D2009-0167. For the reasons set out above, the Panel finds that the Complainant has trade mark rights in the mark BWIN. He also finds that it has, through use, acquired rights in the domain name <bwinpoker.com>, <bwinpoker.net> and <bwinpoker.us>.
The Respondent's use consists of the use of the prefix “bwim” together with the word “poker”. Given the similarity of the letters “m” and “n”, the Panel finds that the use of “bwim” by the Respondent is confusingly similar. This is exacerbated by the use of “bwim” in conjunction with poker, which is associated with the trading activity of the Complainant. The Panel therefore agrees with the Complainant's submission that “by adding the term ‘poker' to the domain name and directly connecting this term with the term ‘bwim', which is confusingly similar to ‘bwin', the Respondent has increased the danger of confusion with the Complainant's trade mark ‘bwin'”.
The risk of further confusion was recognised by the earlier WIPO Panel decision in bwin Interactive Entertainment AG v. wp, WIPO Case No. DES2009-0018.
The Complainant argues that the Respondent has no rights or interest in the domain name <bwimpoker.com>. In particular there are no trade marks which would justify use of the domain name. Similarly, the Respondent is neither commonly known under the term “bwimpoker” nor is the term part of the Respondent's name.
The Complainant also submits that the sole purpose of the registration by the Respondent was to establish a phishing site to mislead the Complainant's customers. Evidence for this is that the layout, design and colours used on the website “www.bwimpoker.com” are almost identical to those used by the Complainant on its websites and this adds to the danger of confusion.
Having considered the submissions, the Panel finds that the Respondent has no right or legitimate interests in the disputed domain name.
The Complainant, in accordance with paragraph 4(b) of the Policy, relies upon the evidence of registration and use of the domain in bad faith. It submits that the Respondent acquired the domain name primarily for the purposes of intentionally attempting to attract for commercial gain Internet users to the Respondent's website. It submits that this is evidenced by the fact that from the very beginning of the Respondent's website, the layout and the colour design of the website were almost identical to the design, layout and colours used by the Respondent on its websites including, for example, the main website “www.bwin.com”. Annex K to the Complaint is used to support that argument.
The Complainant also relies on the sending out of newsletters by the Respondent notifying the Complainant's customers that they had won a prize and then luring them to the fake website in order to obtain their data and requiring them to pay USD 500 to receive the prize. Evidence for this is the extract from the website “www.spamfighter.com” annexed as Annex N to the Complainant which states clearly that the link “actually leads consumers to ‘bwimpoker' a counterfeit site that asks the user to enter his credentials. But, if the user does so, he ends up losing sensitive personal details, including passwords and log-ins. (...) Other poker forums on the Internet have also indicated that certain e-mail has attracted customers by saying that they are winners of a prize, but they must pay USD 500 for the processing of the claim. This scam, somewhat less delicate, further advised players to avoid logging into their account with Bwin for four days; henceforth, presumably when its details were emptied.”
Taking all these factors into account and, in particular, that there is no formal Response, the Panel finds for the Complainant in respect of 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 <bwimpoker.com> be transferred to the Complainant.
Clive Duncan Thorne
Dated: September 10, 2009