WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Betsson Malta Limited v. John Droker
Case No. D2010-0883
1. The Parties
The Complainant is Betsson Malta Limited of Ta Xbiex, Malta, represented by WH Law, Malta.
The Respondent is John Droker of Camden Town, Greece.
2. The Domain Name and Registrar
The disputed domain name <casinoeuro.info> is registered with GoDaddy.com, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 1, 2010. On June 1, 2010, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the disputed domain name. On June 1, 2010, 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 June 4, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was June 24, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 28, 2010.
The Center appointed James A. Barker as the sole panelist in this matter on July 6, 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.
On August 3, 2010, the Panel issued an order under paragraphs 10 and 12 of the Rules. The order noted that the disputed domain name was registered by the Respondent in February 2005 – before the Complainant had enforceable rights in its Community mark. The Complainant was requested to provide evidence of the reputation of its mark, evidence of alternatively registered marks in force in February 2005, or other evidence to demonstrate that the Respondent might have been aware of the Complainant’s mark when the disputed domain name was registered. The Respondent was requested to indicate by August 9, 2010, whether it wished to respond to any further information that might be submitted by the Complainant. Consequent on that order, the Panel extended the due date for decision until August 12, 2010.
In response to the Panel Order, on August 4, 2010, the Complainant submitted further evidence. No communication was received by the Respondent, before or after the date indicated in the Panel Order.
4. Factual Background
The Complainant has a registered Community mark for CASINOEURO. Although the Complainant provided no direct evidence of that mark, the Panel has carried out a limited search to confirm that the Complainant does, in fact, have the mark it claims. The mark is registered as a figurative mark, with the date of registration being May 17, 2006, filing date of November 30, 2004, and publication date of October 25, 2005. Under Article 9.3 of the Council Regulation (EC) No. 207/2009, the rights conferred by a Community mark prevail against third parties from the date of publication.
The Complaint otherwise gives few details of the Complainant’s business or the activity of the Respondent. There is likewise no evidence from the Respondent in that connection. In response to the Panel Order of August 3, 2010, the Complainant provided evidence that it has operated a website at the domain name <casinoeuro.com> since 1997; had incorporated under the name of ‘Casinoeuro Limited’ since October 2004 (the name being subsequently changed in a restructure in 2006); and has a Maltese gaming license obtained in 2004 in the name of ‘Casinoeuro Limited’.
As confirmed by the Registrar, the disputed domain name was first created on November 12, 2001, and was registered by the Respondent on February 9, 2005.
5. Parties’ Contentions
The Complainant says that it has the legal right to use the name “casinoeuro” as one of its trade names. In addition, the Complainant says that it is the owner of a Community mark. The Complainant says that it registered CASINOEURO as a mark in 2004, and has been using that term as a trade name since 1997. The Complainant says that it was known as ‘Casinoeuro’.
The Complainant says that the Respondent registered the disputed domain name to prevent the Complainant from using it. The Respondent is offering services in competition with those of the Complainant in such a way as to mislead those looking for information on the Complainant’s activities.
The Complainant says that the Respondent registered the disputed domain name without any legitimate rights in it, and that the Respondent’s registration of the disputed domain name infringes its intellectual property rights. The Respondent has no link to the Complainant. The Complainant says that the Respondent has never used the name “Casinoeuro” except in the disputed domain name. The Complainant says that the Respondent has sought to attract Internet users to obtain an illegitimate profit.
The Complainant, in effect, says that the Respondent has acted in bad faith for the purpose of paragraphs 4(b)(ii), (iii) and (iv) of the Policy.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
To succeed under paragraph 4(a) of the Policy, the Complainant must prove that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name was registered and is being used in bad faith.
These issues are discussed below, immediately after a discussion of the implications of the Respondent’s failure to respond.
A. Respondent’s default
The Panel notes that the Complainant initially provided little evidence to support its case. The attachments to the Complainant comprised no more than a copy of the Whois details for the disputed domain name and a copy of the Policy. A complaint of this kind is at higher risk that a panel will make a finding against it, either for lack of evidence or lack of argument, or both. This is because the overall onus, under paragraph 4(a) of the Policy and paragraph 3(b)(ix) of the Rules, is on the Complainant to make its case. Taking account of the limited evidence in the Complaint, and the lack of a Response, on August 3, 2010, the Panel issued an order requesting the Complainant to provide further evidence. The Complainant provided some additional evidence on August 4, 2010 as outlined above.
The Respondent filed no Response. As such, the Complainant’s claims against the Respondent were uncontested. The Respondent’s failure to respond has two implications:
Firstly, the effect of the Respondent’s failure to respond is a matter addressed in paragraph 5(e) and 14(a) of the Rules. The former paragraph provides that, where there is no response, “in the absence of exceptional circumstances, the Panel shall decide the dispute based upon the complaint.” Paragraph 14(a) is in somewhat similar terms. The Panel does not consider that there are any exceptional circumstances in this case. Paragraph 5(e) of the Rules then requires the Panel to proceed to decide this dispute based on the Complaint.
As a purely factual matter, this means that the only direct evidence is that provided by the Complainant, or reasonably inferred from, the Complaint. The Respondent is therefore more vulnerable from the inferences that flow from the Complaint: MC Enterprises v. Mark Segal (Namegiant.com), WIPO Case No. D2005-1270.
Secondly, a failure to submit a Response is also a failure to comply with paragraph 5(a) of the Rules which provides that the Respondent “shall submit a response”. Under paragraph 14(b) of the Rules, where a party fails to comply with any provision of, or requirement under, the Rules or any request from the Panel, the Panel shall draw such inferences therefrom as it considers appropriate. Although the power under paragraph 14(b) has been described as “discretionary” (Western Research 3000, Inc. v. NEP Products, Inc., WIPO Case No. D2004-0755) the language of that paragraph is mandatory (“shall draw”). This Panel takes the approach that, while determining an appropriate inference is a discretionary matter for the Panel based on the circumstances of the case, paragraph 14(b) of the Rules at least requires the Panel to turn its mind to whether appropriate inferences should be drawn.
In relation to paragraph 14(b), in various circumstances panels have considered it appropriate to, for example:
- draw no inferences per se from a failure to respond. See e.g. Ross-Simons of Warwick, Inc v. Bea Boredlon, WIPO Case No. D2004-0695; Ticketmaster Corporation v. Harold R. Brown, II, Harold R. Brown III, and Ted Waitt, WIPO Case No. D2001-0716; Aventis Pharmaceuticals Products Inc. v. Nejat, WIPO Case No. D2003-0401.
- draw an adverse inference against the respondent. See e.g. Mary-Lynn Mondich and American Vintage Wine Biscuits, Inc. v. Shane Brown, doing business as Big Daddy’s Antiques, WIPO Case No. D2000-0004; Janine Turner v. Mercedita Kyamko, WIPO Case No. D2004-1036. This Panel has taken this approach in e.g. Iweb Group Inc. v. Domain Source, WIPO Case No. D2008-0819.
- infer that the respondent has no evidence to rebut the assertions of the complainant. Tata Tea Limited v. Arms Communications Pvt Ltd, WIPO Case No. D2000-1826.
- infer that the respondent does not deny the facts which the complainant asserts, nor the conclusions which the complainant asserts may be drawn from those facts. See e.g. Kabushiki Kaisha Toshiba v Shan Computers, WIPO Case No. D2000-0325; Harvey Norman Retailing Pty Ltd v Oxford-University, WIPO Case No. D2000-0944.
- accept the allegations in the complaint as true, if they otherwise engender no substantial doubt. See e.g. Randstad General Partner (U.S.), LLC v. Domains For Sale For You, WIPO Case No. D2000-0051; EAuto, L.L.C. v. EAuto Parts, WIPO Case Number D2000-0096; Edgar Rice Burroughs, Inc. v. Adtel Communications, WIPO Case No. D2000 – 0115; ABF Freight System, Inc. v. American Legal, WIPO Case No. D2000-0185; Icar SPA v. ICAR, WIPO Case No. D2000-0563; August Storck KG v. Origan Firmware, WIPO Case No. D2000-0576; Köstritzer Schwarzbierbrauerei v. Macros-Telekom Corp., WIPO Case No. D2001-0936.
- infer that the respondent has no rights or legitimate interests, where the complainant has otherwise made a prima facie case. Western Research 3000, Inc. v. NEP Products, Inc., WIPO Case No. D2004-0755; Think Service, Inc. v. Juan Carlos aka Juan Carlos Linardi, Case No. D2005-1033.
- infer that the registration was obtained for bad faith purposes, even if good faith could be conceived. See e.g. VoiceStream Wireless Corporation v. John Pike, WIPO Case No. D2001-1224.
Regardless of which one or more of these approach(s) the Panel takes, it must still, as required under paragraph 5(e) of the Rules, proceed to decide the dispute based on the Complaint. The Policy does not permit a default judgment: AFC Enterprises, Inc. v. Max Marketing, WIPO Case No. D2000-0975. The Complainant must still prove its case. Western Research 3000, Inc. v. NEP Products, Inc., WIPO Case No. D2004-0755.
Nevertheless, the consequence of the Respondent’s failure to submit a Response means that the Panel should draw the inference it considers appropriate. What are the appropriate inferences to draw in this case? The answer to this question has some relevance in this case because there is a general lack evidence in the case file, even allowing for the additional information submitted by the Complainant in response to the Panel Order of August 3, 2010. For example, an adverse inference drawn from the absence of a Response would lend more weight to what is otherwise a brief Complaint. The Panel has therefore considered each of the possible approaches in turn.
The Panel does not, firstly, consider it appropriate to draw no inferences from the failure of the Respondent to respond. This is because that failure is part of the factual circumstances of this case, and the Panel considers that failure to be relevant to the Complainant’s case.
Secondly, the Panel considers it reasonable, and consistent with its past approaches, to draw a general adverse inference against the Respondent. In the Panel’s mind, the lack of a Response means that the Respondent either cannot be bothered to respond or that it has ‘something to hide’. The former suggests that the Respondent thinks its case too weak to bother defending or that the costs (in time and effort) outweigh the value it puts on the domain name: either indicates some weakness in the ability of the Respondent to show at least a right or legitimate interest. Alternatively, having something to hide suggests at least some element of bad faith motivation.
The third and fourth inferences that might be drawn is that the Respondent has no evidence against the Complaint, and that the Respondent does not deny the facts alleged against it, and the conclusions that might be drawn from those facts. Although stated in some previous cases as an inference, the Panel considers these approaches to be better described as statements of fact. In this case the Respondent has presented no evidence and, as such, there is no basis for the Panel to believe the Respondent has any. By submitting no evidence, it is self-evident that the Respondent has not denied the facts presented by and allegations made against it by the Complainant.
Fifthly, the Panel does not infer that the statements in the Complaint are true merely because they are not denied by the Respondent. Whether or not there is a Response, the allegations in the Complaint must be credible to succeed. Accepting the allegations in the Complaint as true, because of the absence of a Response, would come close to rendering a default judgment for which the Policy does not provide. That said, it is clearly easier for the Panel to find the Complainant’s allegations are true in the absence of any Response.
Sixth, there is substantial Panel authority for the proposition that, once the Complainant has established a prima facie case, the burden shifts to the Respondent to rebut that case. See paragraph 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions. Drawing the inference that the Respondent has no rights or legitimate interests, where it submits no Response, is a simple restatement of that principle. The Panel has therefore taken that approach in this case.
Finally, the Panel does not go so far as to infer bad faith from the Respondent’s default alone. As noted above, the Complainant is still required to prove its case. However, the general adverse inferences which the Panel may draw from the Respondent’s default have obvious relevance to the Complainant’s case in this respect, as noted above in relation to the second issue.
Having regard to these matters, the Panel makes the following findings in relation to the Complainant’s case under paragraph 4(a) of the Policy.
B. Identical or Confusingly Similar
The Complainant must first establish, under paragraph 4(a)(i) of the Policy, that it ‘has rights’ in a trademark. The Complainant has established that it has rights in a Community trademark for CASINOEURO.
The Complainant provides little evidence of having the rights it claims in a trade name, or any associated common law rights. However, establishing registered rights is, by itself, sufficient to show that the Complainant ‘has rights’ for the purpose of paragraph 4(a)(i) of the Policy.
Under paragraph 4(a)(i), the Complainant must also establish that the disputed domain name is identical or confusingly similar to its mark. The Panel finds that the disputed domain name is relevantly identical to that mark. The textual element of that mark is entirely incorporated in the disputed domain name.
For these reasons, the Panel finds that the Complainant has established this first element.
C. Rights or Legitimate Interests
While the burden on a complainant in respect of this element must be relatively light, the Complainant must nonetheless provide some information tending to show that Respondent has no rights or legitimate interests. Ha’aretz Daily Newspaper Ltd. v. United Websites, Ltd., WIPO Case No. D2002-0272. The ‘information’ which the Complainant relevantly provides in this case is essentially a brief series of statements against the Respondent.
Despite this, the Panel considers that the Complainant’s collective statements are sufficient to establish a prima facie case. Although not substantial, those statements are in themselves a form of information against the Respondent.
As noted above, the Respondent has chosen to submit no Response. As such, the Respondent has not rebutted the bare case against it. There is therefore an inference that the Respondent has no rights or legitimate interests in the disputed domain name.
The Complainant has therefore established its case under paragraph 4(a)(ii) of the Policy.
D. Registered and Used in Bad Faith
The final thing which the Complainant must establish is that the disputed domain name was registered and has been used in bad faith. Bad faith might be found where it is established that the Respondent registered the disputed domain name with an intent to exploit the value of the Complainant’s mark.
As noted above, the Complaint is brief. The Complainant provided some additional information in response to the Panel order of August 3, 2010, comprising of registration details for its principal website (registered in 1997) and company registration certificates. The Complainant did not provide evidence that it had enforceable rights in a mark at the time the disputed domain name was registered, and does not argue that it had rights in an unregistered mark.
However, in the absence of a Response, the allegations made by the Complainant are not denied by the Respondent. The Panel considers those allegations to be sufficiently credible. There is no evidence which calls those allegations into serious doubt in the Panel’s mind. In the circumstances of this case, the Panel also considers that the Respondent’s default reinforces a finding of bad faith.
Circumstantial evidence in this case supports these conclusions. The disputed domain name was registered in February 2005, soon after the Complainant filed its trademark registration at the end of November 2004. In the absence of contrary evidence, this timing is suggestive that the Respondent may have been aware of the Complainant’s mark. The domain name for the Complainant’s primary website has also been registered since 1997. The other additional evidence provided by the Complainant is also suggestive that the Respondent was aware of the Complainant’s (then) potential trademark rights when the disputed domain name was registered.
A contrary argument is possible, on the basis that the Complainant has not demonstrated enforceable trademark rights before the registration of the disputed domain name. The usual rule in many jurisdictions is that a trademark is regarded as having been registered on the date the application is filed. The Complainant’s mark was filed in November 2004. However, the Complainant’s mark is a Community mark. Under Council Regulation (EC) No 207/2009 (and Council Regulation (EC) No. 40/94 of December 20, 1993, in force at the time the Complainant’s mark was registered) rights in a Community mark are enforceable from the date of publication. The Complainant’s trademark was published in October 2005 after the registration date of the disputed domain name in February 2005.
Paragraph 3.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions relevantly refers to the consensus view of panelists as follows: “Normally speaking, when a domain name is registered before a trademark right is established, the registration of the domain name was not in bad faith because the registrant could not have contemplated the complainant’s non-existent right.” However, the consensus view is qualified such that “In certain situations, when the respondent is clearly aware of the complainant, and it is clear that the aim of the registration was to take advantage of the confusion between the domain name and any potential complainant rights, bad faith can be found.”
For the reasons set out above, the Panel considers that the circumstantial evidence in this case is indicative of the type of bad faith described in this qualification to the WIPO Overview. The Complainant did not provide substantial information about the reputation per se of its mark to prove the Respondent’s awareness of it. Such evidence might have included e.g. information on the amount of traffic to its website, advertising, media recognition, or other evidence going to the popularity or reputation of its business. Nevertheless, the Complainant’s case is unchallenged by the Respondent and so allows adverse inferences to be drawn against the Respondent (following the principles and cases outlined above). In this case, there is an inference that the Respondent was clearly aware of the Complainant’s mark or, at least, the Complainant’s potential rights, when the disputed domain name was registered. The Panel draws that inference on the basis of the earlier filing of the Complainant’s mark; the Complainant’s prior use of its trade name; and the relevantly exact correspondence between the disputed domain name and the Complainant’s mark. This conclusion is not affected by the date from which that mark might have been enforced against third parties under Council Regulation (EC) No 207/2009.
The Complainant has therefore established its case under paragraph 4(a)(iii) of the Policy.
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, <casinoeuro.info>, be transferred to the Complainant.
James A. Barker
Dated: August 12, 2010