The Complainant is Stanworth Development Limited of United Kingdom of Great Britain and Northern Ireland represented by Bowman Gilfillan Inc. of South Africa.
The Respondent is Domains by Proxy, Inc./Michael Rand of United States of America and Israel, respectively.
The disputed domain name <jackpotcitycasini.com> (the “Domain Name”) is registered with GoDaddy.com, Inc.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 17, 2009. On August 17, 2009, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the disputed domain name. On August 17, 2009, GoDaddy.com, Inc. 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 September 1, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was September 21, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on September 22, 2009.
The Center appointed Michelle Brownlee as the sole panelist in this matter on September 30, 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 owns trademark registrations and pending applications for JACKPOTCITY and JACKPOT CITY and design in Australia, Canada, Spain, the European Community and the United States of America in connection with online gambling services. The Complainant also owns numerous domain name registrations that include the words “jackpot city,” including <jackpotcity.com> and <jackpotcitycasino.com>.
The Complainant or its licensee has operated online gaming services at the domain <jackpotcity.com> since 1998. More than USD 50,000 per month is spent on advertising, marketing and promoting the web site. The “www.jackpotcity.com” site is one of the best known online gaming brands.
The Domain Name wholly incorporates the Complainant's JACKPOT CITY trademark. The addition of the word “casino” or its misspelling “casini” does not serve to distinguish the Domain Name from the trademark. The Domain Name is therefore confusingly similar to the trademark.
The Respondent has no rights or legitimate interests in respect of the Domain Name. The Complainant sent a demand letter to the Respondent and received no response. The Respondent is pointing the Domain Name to a web site at the domain name <goldvipclub.com>, which is branded “GVC” and which offers competing online gaming services. This cannot be considered a fair use. The Respondent has no connection or affiliation with the Complainant or its licensee, and there is no evidence that the Respondent is commonly known by the Domain Name.
The Domain Name was registered and is being used in bad faith by the Respondent. The Complainant has prevailed against the Respondent in two other proceedings pursuant to the Policy involving the domains <riverbellecsaino.com> and <jackpotcitycsaino.com>. See Stanworth Development Ltd. v. Michael Rand, WIPO Case No. D2008-0158, and Stanworth Development Ltd. v. Michael Rand, WIPO Case No. D2008-1643. The Respondent is causing confusion by pointing the Domain Name to a site that is in direct competition with the Complainant's services.
The Respondent did not reply to the Complainant's contentions.
Paragraph 4(a) of the Policy provides that in order to be entitled to a transfer of a domain name, a complainant must prove the following three elements:
(1) the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(2) the respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
The second level of the Domain Name consists of the Complainant's trademark followed by “casini,” an apparent misspelling of the word “casino,” which is a descriptive or generic term associated with the online gaming services offered by the Complainant. The JACKPOT CITY trademark is the dominant part of the Domain Name, and the addition of the misspelling of “casino” does not serve to distinguish it from the Complainant's trademark in a meaningful way. Rather, the Domain Name appears to be designed to attract traffic from typographical errors made by users who type in “jackpotcitycasino.com.” Other panels have found confusing similarity under similar circumstances. See, e.g., Sidestep, Inc. v. Digi Real Estate Foundation, WIPO Case No. D2007-0550. Accordingly, the Panel finds that the Domain Name is confusingly similar to the Complainant's trademark.
Paragraph 4(c) of the Policy provides that a respondent can demonstrate a legitimate interest in a domain name by demonstrating one of the following facts:
(i) before receiving any notice of the dispute, the respondent used or made preparations to use the domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent has been commonly known by the domain name; or
(iii) the respondent is 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 at issue
The Respondent has not presented evidence that it used or made preparations to use the Domain Name in connection with a bona fide offering of goods or services, that it is commonly known by the Domain Name or that it is making a noncommercial or fair use of the domain name. The Respondent's redirection of the Domain Name to a site offering competing services under the name “GVC” cannot under the circumstances be considered a bona fide offering of services. Accordingly, the Panel finds that the Respondent does not have any rights or legitimate interests in the Domain Name.
Paragraph 4(b) of the Policy states that the following circumstances are evidence of registration and use of a domain name in bad faith:
(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its web site or other online location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of its web site or location or of a product or service on its web site or location.
The Complainant has established bad faith under Paragraph 4(b)(iv) of the Policy. The Respondent is intentionally using the Domain Name to direct traffic to a web site offering competing services by creating confusion as to source, which results in commercial gain to the Respondent.
It also bears mention that the Respondent's “typosquatting” use of a common typographical error that Internet users make when they are likely trying to find a web site associated with the Complainant to direct traffic to another site is also evidence of bad faith, even though this activity is not covered by the enumerated factors in paragraph 4(b) of the Policy. See, e.g., The Nasdaq Stock Market, Inc. v. Shawn Cain d/b/a Star Inc., WIPO Case No. D2002-1125. The fact that the Respondent has twice been found to have registered and used in bad faith other domain names that have incorporated the Complainant's trademarks further reinforces the conclusion that the Domain Name was registered and used in bad faith in this case. See, e.g., Microsoft Corporation v. Party Night, Inc. d/b/a Peter Carrington, WIPO Case No. D2003-0501.
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 <jackpotcitycasini.com> be transferred to the Complainant.
Dated: October 9, 2009