The Complainant is EUROSPORT of Issy-les-Moulineaux Cedex, France, represented by INLEX IP Expertise, France.
The Respondent is Belize Domain WHOIS Service Lt of Belize, Wisconsin, United States of America.
The disputed domain name <eurosportbet.net> 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 January 15, 2010. On January 15, 2010, 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 January 15, 2010, 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 January 19, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was February 8, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on February 9, 2010.
The Center appointed Luiz E. Montaury Pimenta as the sole panelist in this matter on January 12, 2010. 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, the channel Eurosport, is one of the most famous sports television channels in Europe, and has been broadcast since 1989.
The Complainant, the French company Eurosport, previously named Société Européenne de Télétransmission Sportive, produces and broadcasts, inter alia, the channels Eurosport, Eurosportnews and Eurosport 2. In addition, Eurosport provides Internet webservices dedicated to sports at “www.eurosport.com” and “www.eurosport.co.uk” (in the English language), as well as a certain number of corresponding websites in other languages (for example “www.eurosport.fr”, “www.eurosport.de”, “www.eurosport.ru”, “www.eurosport.es”).
The Complainant is also the owner of the websites “www.eurosportbet.fr” and “www.eurosportbet.co.uk” dedicated to online gambling.
The Complainant provides the most widely available television channel in Europe, reaching approximately 110 million homes in more than 50 countries across Europe and the Mediterranean area.
The Complainant is the holder of numerous EUROSPORT trademark registrations in various countries, including, but not limited to:
Trademarks EUROSPORT registered in France:
Trademark EUROSPORT and device no. 3411055 filed on February 17, 2006.
Trademark EUROSPORT no. 3157297 filed on April 3, 2002.
Trademark EUROSPORT no. 99809801 filed on August 30, 1999.
Trademark EUROSPORT no. 98752858 filed on October 6, 1998.
Trademark EUROSPORT.COM no. 95598870 filed on November 23, 1995.
Trademark EUROSPORT and device no. 94522730 filed on June 1, 1994.
Trademark EUROSPORT no. 93462249 filed on April 1, 1993.
Community Trademark EUROSPORT:
Trademark EUROSPORT and device no. 1293067 dated August 30, 1999.
Trademarks EUROSPORT registered in the U.S.:
Trademark EUROSPORT no. 78299075 filed on September 11, 2003.
Trademark EUROSPORT and device no. 2058560 filed on August 31, 1994.
Trademark EUROSPORT and device no. 1871597 filed on November 23, 1993.
The Complainant is also the holder of the following EUROSPORTBET trademarks:
French trademark EUROSPORTBET no. 3618298,
French trademark EUROSPORT BET.FR and device no. 3638484,
Community trademark EUROSPORTBET and device no. 8172661 and
Community trademark EUROSPORT BET. and device no. 8172603.
Moreover, the Complainant has also registered and uses a large number of domain names prior to the registration of the disputed domain name <eurosportbet.net>, inter alia, the following domain names:
<eurosport.at>, <eurosport.asia>, <eurosport.ch>, <eurosport.cn>, <eurosport.com>, <eurosport.de>, <eurosport.es>, <eurosport.eu>, <eurosport.fr>, eurosport.info>, <eurosport.mobi>, <eurosport.no>, <eurosport.se>, <eurosport.fi>, <eurosport.dk>.
The website of the Complainant is accessible in several languages (Spanish, Italian, Russian, Arabic, Swedish, and others), and naturally also in English.
In addition, the Complainant is also the owner of various domain names comprising the expression “eurosportbet”, amongst which are the following:
<eurosportbet.at>, <eurosportbet.be>, <eurosportbet.bg>, <eurosportbet.ch>, <eurosportbet.com>, <eurosportbet.co.uk>, <eurosportbetting.co.uk>, <eurosportbet.cz>, <eurosportbet.dk>, <eurosportbet.es>, <eurosportbet.eu>, <eurosportbet.fr>, <eurosportbet.it>, <eurosportbetting.net>, <eurosportbet.pt>, <eurosportbet.ro>, <eurosportbet.ru>, <eurosportbet.se>, <eurosportbetting.tv>, <eurosportbet.tv>.
Some of the domain names listed above as, for example, <eurosportbet.com>, were registered prior to the registration of the disputed domain name.
The Complainant alleges that the Respondent simply reproduced the trademarks EUROSPORT and EUROSPORTBET owned by the Complainant and that the disputed domain name <eurosportbet.net> is identical to the Complainant's domain name <eurosportbet.com>.
The Complainant asserts that the addition of the suffix “.net” to the expression “eurosportbet” is irrelevant and does not change the likelihood of confusion between the disputed domain name and the Complainant's prior rights. The Complainant also asserts that the disputed domain name <eurosportbet.net> is also nearly identical to the Complainant's trademarks and domain names comprising the expression “Eurosport”.
The Complainant alleges that the adjunction of the common word “bet” is also not sufficient to avoid confusion between the Complainant's prior rights and the disputed domain name <eurosportbet.net>, considering on one hand, the descriptiveness of this term and on the other hand, the fact that the expression “Eurosport” remains the most distinctive and preponderant element of the disputed domain name. Moreover, the Complainant also alleges that the adjunction of the generic word “bet” to the expression “Eurosport” reinforces the likelihood of confusion with the prior rights of the Complainant on its business name, trademarks and domain names.
The Complainant informs that it has not licensed or otherwise authorized the Respondent to use the EUROSPORT trademarks and that there is no relationship between the Complainant and the Respondent.
The Complainant informs that, to the best of its knowledge, the Respondent is not known under the mark EUROSPORT and has not registered the EUROSPORT trademark. The Complainant also informs that a search on Internet associating “Eurosport” or “Eurosportbet” with the Respondent's name shows no relevant links between the Respondent and these denominations.
The Complainant argues that the Respondent's name has nothing to do with the “Eurosport” term, which is a fancy and distinctive name.
The Complainant informs that the website “www.eurosportbet.net” directs to a parking website proposing commercial links on entertainment in Las Vegas and notably on casinos and entertainment.
The Complainant argues that there is no real active website behind the disputed domain name <eurosportbet.net>, demonstrating any legitimate interest of the Respondent.
The Complainant further asserts that the intent of the Respondent is clearly to divert Internet users to its website for its own commercial gain and therefore does not make a legitimate non-commercial, or fair use of the disputed domain as already decided in several similar cases.
The Complainant argues that, due to its extensive use of the trademark EUROSPORT, it enjoys a strong notoriety towards the general public as well as towards its viewers.
The Complainant asserts that the well-known character of the mark EUROSPORT is demonstrated by a simple search on the Internet website “www.google.com” using “eurosport” as keyword, which gives more that 15 millions results.
The Complainant submits expressive evidence of the notoriety of its EUROSPORT trademark in several countries.
The Complainant also argues that the notoriety of the EUROSPORT trademark has been confirmed by the following jurisdictions:
- the Commercial Court of Brussels in a decision issued on February 10, 2000. Indeed, in this case, the judges held that: “The trademark Eurosport constitutes a well-known trademark. It is indeed known by a wide part of the public (…). The trademark EUROSPORT being well-known, the average consumer could attribute the goods, which bear similar trademarks, a common origin, even if it concerns non similar goods, which is the case in this matter (television channel and watches being non-similar goods)”.
- Eurosport v. Jakub Tomczyk, WIPO Case No. D2005-0496 issued on July 12, 2005: “The Panel finds that the trademark EUROSPORT is well known”.
- the Bakirkoy Civil Court of Intellectual and Industrial Rights (Turkey), in its decision No. 2009/197 of October 15, 2009: “it has been understood that the trademark of the plaintiff [(i.e. Eurosport)] has reached the status of “well known” trademark”.
The Complainant argues, therefore, that the Respondent could not ignore the existence of the EUROSPORT trademarks and websites as well as the prior rights of the Complainant on the sign EUROSPORTBET when it registered the disputed domain name <eurosportbet.net>.
The Complainant further argues that it is obvious that the Respondent reserved and used the disputed domain name in bad faith for the following reasons:
- Because of the well-known character of the name and marks of the Complainant, the Respondent could not ignore the existence and the notoriety of the trademark EUROSPORT owned and used by the Complainant. The inclusion of the mark EUROSPORT in the disputed domain name cannot be considered coincidental.
- The fact that the website to which the disputed domain name <eurosportbet.net> resolves is a parking page confirms the Respondent's bad faith, as a parking website cannot be considered as a bona fide exploitation of the disputed domain name.
- By using the disputed domain name, the Respondent intentionally attempted to attract for commercial gain, Internet users to its website.
- The reason for choosing a domain name which incorporates a famous trademark can only be to take advantage of the Complainant's reputation and goodwill in the mark. It is therefore obvious that the choice of the additional element “bet” was intended to associate the Complainant's mark EUROSPORT with gambling.
The Complainant also informs that the Respondent has registered many other domain names in bad faith, infringing third parties' rights.
The Complainant also informs that the Respondent has been subject of numerous complaints filed with the Center and the National Arbitration Forum, notably:
- Fat Face Holdings Ltd v. Belize Domain WHOIS Service Lt, WIPO Case No. D2007-0626;
- Above All Advertising Inc. v. Belize Domain WHOIS Service Lt, WIPO Case No. D2007-0775;
- Kforce Inc. v. Belize Domain Whois Service Lt., WIPO Case No. D2007-1317
- Frontier Distribution LLC. v. Belize Domain WHOIS Service Lt., WIPO Case No. D2007-1203;
- First Allied Securities, Inc. v. Belize Domain WHOIS Service Lt, WIPO Case No. D2007-1780;
- Bondurant School of High Performance Driving Inc. v. Belize Domain WHOIS Service Lt, NAF Claim No. 1157312;
- Citigroup Inc. v. Belize Domain WHOIS Service Lt, NAF Claim No. 1153868;
- Johnson & Johnson v. Belize Domain WHOIS Service Lt, NAF Claim No. 1128979;
- Multiplied Media Corporation v. Belize Domain WHOIS Service Lt, NAF Claim No. 1144329.
In all these decisions, the Respondent failed to submit a response in the proceedings and the facts were similar to the present case: registration of a domain name reproducing a prior mark and use of the disputed domain name for a parking website.
The Respondent did not reply to the Complainant's contentions.
Pursuant to the Policy, the Complainant is required to prove the presence of each of the following three elements to obtain the remedy it has requested: (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) the disputed domain name has been registered and is being used in bad faith, Policy, paragraph 4(a).
The Panel finds that the disputed domain name <eurosportbet.net> is identical to the Complainant's EUROPORTBET trademarks and confusingly similar to the Complainant's EUROSPORT trademarks,
The Panel finds that the Complainant has established the first element of the Policy.
A complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, respondent carries the burden of demonstrating rights or legitimate interests in the domain name. If the respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy. Morgan Freeman v. Mighty LLC, WIPO Case No. D2005-0263; Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455; and Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110.
With respect to paragraph 4(c)(i) of the Policy, there is no evidence that the Respondent, before any notice of the dispute, used or prepared to use the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services.
With respect to paragraph 4(c)(ii) of the Policy, there is no evidence that indicates that the Respondent has ever been commonly known by the disputed domain name.
With respect to paragraph 4(c)(iii) of the Policy, the Respondent has not made and is not making a legitimate noncommercial or fair use of the disputed domain name and has not used the disputed domain name, or a name corresponding to it, in connection with a bona fide offering of goods or services. At the time the Complaint was filed, the disputed domain name provided, in part, links to websites that were in direct competition with the Complainant.
Moreover, the disputed domain name, as of the date of this decision, still resolves to a page that displays links to the Complainant's competitors. This is not a bona fide use. (TM Acquisition Corp. v. Sign Guards a/k/a William Moore, NAF Claim No. 132439) (finding that the respondent's use of complainant's marks to divert Internet users to a website which displayed a series of links, some of which were links to sites of complainant's competitors, was not a bona fide offering of goods or services).
The Panel finds that the Complainant has established the second element of the Policy.
Under paragraph 4(b), a respondent has used and registered a domain name in bad faith if, inter alia, the respondent has used the domain name intentionally to attempt to attract, for commercial gain, Internet users to the respondent's website or other online location by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation or endorsement of the respondent's site or of a product or service offered on the respondent's site. Policy paragraph 4(b)(iv).
The Panel finds that the Respondent registered the disputed domain name in bad faith.
The Complainant's allegations of bad faith are not contested. The trademark registrations of record confirm the Complainant's allegations that it had long been using its EUROSPORT and EUROSPORTBET marks when the disputed domain name was registered. Moreover, the Complainant submitted consistent evidence that the trademark EUROSPORT constitutes a well-known trademark. The Panel finds the Complainant's allegations that the Respondent must have been aware of the Complainant's rights in the mark and further that the Respondent knowingly infringed the Complainant's trademark when it registered the disputed domain name persuasive.
Under the Policy, it is evidence of bad faith that a respondent “by using the domain name, (…) ha[s] intentionally attempted to attract, for commercial gain, Internet users to [its] web site 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] web site or location or of a product or service on [its] web site or location”. Policy paragraph 4(b)(iv). The Respondent used the Complainant's known trademark to attract users to its website where links to competing services are offered. This is evidence of the intention by the Respondent to attract Internet users for commercial gain, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the Respondents' website or of a product or service on Respondents' website.
At the time the Complaint was filed and at the time of this Decision, the disputed domain name resolved to a page that offers visitors links to websites of other companies, including the Complainant's competitors. Such conduct is considered to be evidence of registration and use in bad faith, see Staples, Inc., Staples The Office Superstore, Inc., Staples Contract and & Commercial, Inc. v. John Morgan, WIPO Case No. D2004-0537 (“the Panel is persuaded that [r]espondent's registration and use of the disputed domain name for re-directing Internet users, particularly customers and potential customers of [c]omplainants, from [c]omplainants' website to the website of OfficeMax, a company which directly competes with [c]omplainants, constitutes bad faith and use. Prior WIPO UDRP decisions also support this conclusion.”). See also Edmunds.com, Inc. v. Ult. Search, Inc., WIPO Case No. D2001-1319 (“registration and use of a domain name to redirect Internet users to websites of competing organizations constitutes bad faith registration and use under the Policy”).
Accordingly the Panel finds that the Complainant has made out bad faith registration and use of the disputed domain name by the Respondent.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <eurosportbet.net> be transferred to the Complainant.
Luiz E. Montaury Pimenta
Sole Panelist
Dated: February 26, 2010