WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Pocket Kings Limited v. Al Cabug
Case No. D2010-1821
1. The Parties
The Complainant is Pocket Kings Limited of Dublin, Ireland, represented by SafeNames Ltd., United Kingdom of Great Britain and Northern Ireland.
The Respondent is Al Cabug of Masbate City, the Philippines.
2. The Domain Names and Registrars
The disputed domain names <filltiltpoker.org>, <fulltilpoker.org>, <fulltiltpker.org> and <fulltitpoker.org> are registered with Fabulous.com (“Registrar No. 1”). The disputed domain names <fulltiltlpoker.com>, <fulltiltlpoker.net> and <fulltiltpokert.com> are registered with Wild West Domains, Inc. (“Registrar No. 2”). All disputed domain names are referred to below as the “Domain Names”.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 28, 2010. On October 28, 2010, the Center transmitted by email to Registrar No. 1 and to Registrar No. 2 a request for registrar verification in connection with the Domain Names. On October 28, 2010, Registrar No. 2 transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. On October 29, 2010, Registrar No. 1 transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an Amended Complaint on November 1, 2010.
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 November 2, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was November 22, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 25, 2010.
The Center appointed Assen Alexiev as the sole panelist in this matter on November 30, 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. After being so requested by the Panel, the Center informed the parties on December 14, 2010 that due to exceptional circumstances the Decision due date was extended until December 17, 2010.
4. Factual Background
The Complainant provides technology and marketing consulting services to the online poker industry. Its online “Poker card room” was launched in 2004 with the participation and sponsorship of professional poker players.
The Complainant is the proprietor of the following registered trademarks:
- The figurative trademark FULL TILT POKER - a Community Trademark with registration No. 6322127, filed on October 1, 2007 for goods and services in International Classes 9, 28, 38 and 41; and
- The word trademark FULL TILT POKER - a Community Trademark with registration No. 6335327, filed on October 4, 2007 for goods and services in International Classes 9, 28, 38, and 41.
The Domain Names were registered on March 17, 2005, June 11, 2005 and March 30, 2006.
5. Parties’ Contentions
The Complainant asserts that the Domain Names are confusingly similar to the Complainant’s FULL TILT POKER trademarks. The Respondent has engaged itself in the so-called “typosquatting”, and each of the Domain Names is confusingly similar to these trademarks in appearance, in the way it is pronounced, and in its overall commercial impression.
The Complainant contends that the Respondent has no rights or legitimate interests in respect of the Domain Names. The Complainant asserts that the Respondent’s use of the Domain Names does not constitute a bona fide offering of goods and services or a noncommercial or fair use of the Domain Names. The Domain Names were registered without license or authorization from the Complainant. The Respondent is not an authorized dealer or reseller of the Complainant’s products and services and has no connection or relationship with the Complainant. The Respondent has not been commonly known by the Domain Names, and the Complainant is not aware of any relevant trademark rights of the Respondent.
The Respondent has not made any use of, or demonstrable preparations to use the Domain Names or a name corresponding to them in connection with a bona fide offering of goods or services. Typosquatting does not constitute a legitimate use of a trademark. The Domain Names <filltiltpoker.org>, <fulltiltlpoker.net> and <fulltilpoker.org> redirect Internet users to “www.absolutepoker.com” – a competing poker online gambling website. The Domain Names <fulltiltpokert.com>, <fulltiltpker.org> and <fulltitpoker.org> resolve to a pay-per-click webpage that contains links to several other online poker websites - direct competitors of the Complainant. The Domain Name <fulltiltlpoker.com> redirects to the website “www.pokersearch.org”. This website incorporates the Complainant’s logo and offers links to the Complainant’s services, and also redirects to “www.absolutepoker.com”. The manner in which the Domain Names are currently used demonstrates that the Respondent intends to use the Domain Names for commercial gain by diverting consumers to the competitors of the Complainant.
The Complainant submits that the Domain Names were registered and are being used in bad faith. The Respondent has registered confusingly similar misspellings of the Complainant’s trademark as domain names with the purpose of disrupting the business of a competitor. Such typosquatting is inherently parasitic and of itself evidence of bad faith. The Respondent has further intentionally attempted to attract for commercial gain Internet users to its website by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website. The Respondent has achieved commercial gain by creating this confusion and by diverting Internet users to its own website as a source of products and services, thus benefiting from the Complainants trademark.
The Complainant requests that the Domain Names be transferred to the Complainant.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Pursuant to Policy, paragraph 4(a), the Complainant must prove each of the following to justify the transfer of the Domain Name:
(i) That the Domain Names registered by the Respondent are identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) That the Respondent has no rights or legitimate interests in respect of the Domain Names; and
(iii) That the Respondent has registered and is using the Domain Names in bad faith.
By Rules, paragraph 5(b)(i), when a respondent chooses to submit a Response, it is expected to: “[r]espond specifically to the statements and allegations contained in the complaint and include any and all bases for the Respondent (domain-name holder) to retain registration and use of the disputed domain name”.
In this case, the Center has employed the required measures to achieve actual notice of the Complaint to the Respondent, in compliance with Rules, paragraph 2(a), and the Respondent was given a fair opportunity to present its case.
In the event of a default, under Rules, paragraph (14)(b): “the Panel shall draw such inferences therefrom as it considers appropriate”.
As stated by the Panel in Mary-Lynn Mondich and American Vintage Wine Biscuits, Inc. v. Shane Brown, doing business as Big Daddy’s Antiques., WIPO Case No. D2000-0004: “Here, the potential evidence of good faith registration and use was in respondent’s control. Respondent’s failure to present any such evidence or to deny complainant’s allegations allows an inference that the evidence would not have been favorable to respondent”. As stated by the Panel in Viacom International Inc. v. Ir Suryani, WIPO Case No. D2001-1443: “Since the Respondent has not submitted any evidence and has not contested the contentions made by the Complainant, this Panel is left to render its decision on the basis of the uncontroverted contentions made, and the evidence supplied, by the Complainant. […] In the absence of any evidence to the contrary submitted by the Respondent, this Panel accepts in large measure (but not wholly) the submitted evidence and the contended for factual and legal conclusions as proven by such evidence”.
In this administrative proceeding, the Respondent has chosen not to submit a Response on the substance of the dispute. Given the circumstances of this case, the Panel draws the inference from the Respondent’s default that the Respondent has no arguments or evidence to rebut the assertions of the Complainant. The Panel has to take its decision on the basis of the statements and documents before it and in accordance with the Policy, the Rules, and any rules and principles of law that it deems applicable.
A. Identical or Confusingly Similar
The Complainant has provided evidence and has thus established its rights in the trademarks FULL TILT POKER, registered as Community trademarks. The predominant feature of these trademarks is their verbal element “full tilt poker”.
It is a common practice under the Policy to disregard gTLDs such as the “.com”, “.net” and “.org” section of domain names for the purposes of the comparison under Policy, paragraph 4(a)(i).
Considering the other element of each of the Domain Names – “filltiltpoker”, “fulltilpoker”, “fulltiltpker”, “fulltitpoker”, “fulltiltlpoker”, “fulltiltlpoker” and “fulltiltpokert”, respectively – the Panel finds that in all cases the difference between them and the verbal element of the trademark of the Complainant is in only one letter, and each of them can be regarded as a misspelling of this trademark. In effect, each of these elements is visually and phonetically very similar to the Complainant’s trademark FULL TILT POKER.
On these grounds, the Panel finds that the Domain Names are confusingly similar to a trademark in which the Complainant has rights.
B. Rights or Legitimate Interests
The Complainant claims that the Respondent has no rights or legitimate interests in the Domain Names, stating various arguments in this regard. The Complainant has established a prima facie case under Policy, paragraph 4(a)(ii).
It is well established that once a complainant makes out a prima facie case that the respondent has no rights or legitimate interests in a domain name, the burden shifts to the respondent to rebut the showing by providing evidence to the contrary.
In the present case, the Respondent has chosen not to present to the Panel any allegations or documents in his defense despite the Rules, paragraph 5(b)(i) and 5(b)(ix) or the consequences that a panel may extract from the fact of a default (Rules, paragraph 14). The Panel is satisfied that if the Respondent had any justification for registering or using the Domain Names, he could have provided it. In particular, the Respondent has not contended that any of the circumstances described in Policy, paragraph 4(c) — or any other circumstance — is present.
The only information available about the Respondent is the WhoIs information, provided by the concerned Registrars. The WhoIs information contains no evidence of rights or legitimate interests of the Respondent in the Domain Names, which, as found above, are all confusingly similar misspellings of the trademark of the Complainant. The Respondent makes no claims for having rights or legitimate interests in respect of the Domain Names and provides no explanation whatsoever for their registration and use. As submitted by Complainant and not denied by Respondent, the Domain Names have been associated without the consent of the Complainant to websites related to the Complainant’s competitors.
Taking all this into account, the Panel is of the opinion that the available evidence in the present case cannot be regarded as substantiating any rights or legitimate interests of the Respondent in any of the Domain Names, and the Complainant’s prima facie case has not been rebutted. Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in the Domain Names.
C. Registered and Used in Bad Faith
For the purposes of Policy, paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that the holder has registered or has 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 the holder’s documented out-of-pocket costs directly related to the domain name; or
(ii) the holder has 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 holder has engaged in a pattern of such conduct; or
(iii) the holder has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the holder has intentionally attempted to attract, for commercial gain, Internet users to the holder’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 your website or location or of a product or service on the holder’s website or location.
In the present case, all seven Domain Names are confusingly similar misspellings of the Complainant’s FULL TILT POKER trademark, and their registration is a clear example of typosquatting. See, e.g., Fuji Photo Film U.S.A., Inc. v. LaPorte Holdings, WIPO Case No. D2004-0971. The websites associated to the Domain Names link to websites that are related to competitors of the Complainant. Given the circumstances of this case, this is sufficient for the Panel to decide that at the time of the registration of the Domain Names, the Respondent must have definitely been aware of the Complainant and of its business, and must have registered and used the Domain Names with the intent to exploit the Complainant’s goodwill. Internet users that mistakenly reach the websites linked to the Domain Names may be led to believe that these websites are somehow related to the Complainant. Therefore, and in the lack of any contrary evidence, the Panel accepts that the Respondent has registered and used the Domain Names in bad faith by intentionally attempting to attract, for commercial gain, Internet users to certain online locations, by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement of these online locations or of the products or services offered there.
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 Names <filltiltpoker.org>, <fulltilpoker.org>, <fulltiltlpoker.com>, <fulltiltlpoker.net>, <fulltiltpker.org>, <fulltiltpokert.com> and <fulltitpoker.org> be transferred to the Complainant.
Dated: December 17, 2010