WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Group Partouche v. Madarin Data Ltd, Pousaz Raymond
Case No. D2010-1478
1. The Parties
The Complainant is Group Partouche of Paris, France, represented by Alexandra Deslierres, France.
The Respondent is Madarin Data Ltd, Pousaz Raymond of Harworth, Yorkshire, United Kingdom of Great Britain and Northern Ireland.
2. The Domain Name and Registrar
The disputed domain name <partouche-poker.net> is registered with Register.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 2, 2010. On September 2, 2010, the Center transmitted by email to Register.com a request for registrar verification in connection with the disputed domain name. On September 7, 2010, Register.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. The Center sent an email communication to the Complainant on September 24, 2010 providing the registrant and contact information disclosed by Register.com, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on September 24, 2010.
The Center verified that the Complaint together with 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 September 29, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was October 19, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 20, 2010.
The Center appointed Knud Wallberg as the sole panelist in this matter on October 28, 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.
4. Factual Background
The Complainant is Groupe Partouche, an international leader especially in the field of casinos, but also restaurants, hotels and entertainement services such as online gaming. The Complainant was established in France in 1973.
The Complainant is the owner of several trademark registrations containing the trademark PARTOUCHE in France and other countries, just as the Complainant is the owner of several domain name registrations containing the word “partouche”, including <partouche.com> and <partouchepoker.net>. The Complainant provided evidence in support of its trademark and domain name registrations.
The disputed domain name was registered on March 16, 2005. At the time of the filing of the present Complaint, the disputed domain name was used for a website that claims to offer online casino services of one of the Complainant’s competitors’ “casino770.com”.
The Complainant states that the disputed domain name <partouche-poker.net> is confusingly similar to its trademark PARTOUCHE, with the mere addition of the word “poker”, which is a generic or descriptive term that do not change the fact that the Complainant’s trademark is incorporated in full in the disputed domain name.
Moreover, the Respondent has no rights or legitimate interests in respect of the disputed domain name since it has not been authorized by the Complainant to register and use the disputed domain name and is not making a legitimate noncommercial or fair use of the disputed domain name.
The Complainant submits that the Respondent has registered, used, and continues to use the disputed domain name in bad faith. The Complainant’s trademark PARTOUCHE enjoys international reputation, in particular in the poker industry, and the Respondent could not have registered the disputed domain name without knowledge of the Complainant’s trademark rights. By doing so, the Respondent is trying to use the reputation of the Complainant’s trademark to promote its own business and website, by claiming an affiliation with the Complainant and therefore causing confusion between the Complainant’s trademark and the disputed domain name.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 15(a) of the Rules, the Panel shall decide the Complaint on the basis of the statements and documents submitted, in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
In accordance with paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements is satisfied:
(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 has been registered and is being used in bad faith.
Paragraph 4(a) of the Policy states that the burden of proving that all three elements are present lies with the Complainant. At the same time, in accordance with paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules or any request from the Panel, the Panel shall draw such inferences there from as it considers appropriate.
A. Identical or Confusingly Similar
The disputed domain name contains the Complainant’s distinctive trademark PARTOUCHE in full. Neither the addition of the generic term “poker” nor the inclusion of the gTLD denomination “.net”, can alter the finding of the Panel that the disputed domain name is confusingly similar to the Complainant’s registered trademarks and that the requirements of paragraph 4(a)(i) of the Policy therefore are fulfilled.
B. Respondent’s Rights or Legitimate Interests
According to the Complaint, the Complainant has not licensed or otherwise permitted the Respondent to use its trademark or to apply for any domain name incorporating the mark.
The Panel is satisfied that the Complainant has established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. The Respondent has not rebutted this by way of a formal Response or otherwise. The disputed domain name was registered several years after the Complainant first registered and started using its trademark, and the Respondent is currently using the disputed domain name for a website that appears to be offering online gaming activities under the name “casino 770.com”, which is a competitor to the Complainant. The Respondent thus could not credibly claim that the disputed domain name is intended to be used for any legitimate purpose or interest.
Consequently the Panel finds that the conditions in paragraph 4(a)(ii) of the Policy, with reference to paragraph 4(c) of the Policy, are also fulfilled.
C. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy requires the Complainant to prove both registration and use of the disputed domain name in bad faith. Paragraph 4(b)(i) of the Policy provides example of circumstances which shall be evidence of registration and use in bad faith.
The Panel is satisfied under the specific circumstances of the present case that the Respondent was likely to have been aware of the Complainant, its PARTOUCHE mark and the Complainant’s activities when registering the disputed domain name. Further, the Panel finds that the Respondent could not have been unaware of the fact that it chose a domain name which could attract Internet users in a manner that is likely to create confusion for such users.
The Panel therefore finds that the disputed domain name was registered in bad faith.
Further, the disputed domain name was and is still being used for a website offering online gaming activities under the name “casino 770.com”. The Panel therefore finds that the Respondent by its registration and use of the disputed domain name, intentionally created a likelihood of confusion as to the source, sponsorship, affiliation or endorsement of the disputed domain name with the purpose of attracting Internet users to the websites for commercial gain. This finding is supported by the fact that the same conclusion has been reached against the Respondent in other cases under the UDRP.
Accordingly, the Panel finds that the disputed domain name was registered and is being used in bad faith. The Complainant has proven element 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 disputed domain name <partouche-poker.net> be transferred to the Complainant.
Dated: November 9, 2010