WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Kabam, Inc. v. iKabam, Inc.
Case No. D2012-1025
1. The Parties
The Complainant is Kabam, Inc. of Redwood City, California, United States of America, of United States, represented by FairWinds Partners, LLC, United States.
The Respondent is iKabam, Inc. of Hong Kong, China.
2. The Domain Name and Registrar
The disputed domain name <ikabam.com> (the “Domain Name”) is registered with Shanghai Yovole Networks, Inc (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 14, 2012. On May 15, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On May 23, 2012, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. On May 23, 2012, the Center transmitted an email to the parties in both Chinese and English language regarding the language of proceedings. On the same day, the Complainant confirmed its request that English be the language of proceeding. The Respondent did not comment on the language of proceedings by the specified due date. In reply to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amended Complaint on June 4, 2012.
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 June 5, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was June 25, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 26, 2012.
The Center appointed Karen Fong as the sole panelist in this matter on July 2, 2012. 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 an interactive entertainment company that creates and publishes multiplayer social games that are free to play on social networks. The Complainant’s games are all marketed under its trade mark KABAM since 2010. Some of these games include “Kingdoms of Camelot:,Battle for the North”, “Dragons of Atlantis”, “Edgeworld”, “The Goodfather: Five Families”, “Glory of Rome” and “Global Warfare”. The Complainant’s game, “Kingdoms of Camelot: Battle for the North’”, was named Readers’ Choice Facebook Game of 2010 by readers of IGN, an American global entertainment website and was downloaded more than one million times, as of April 16, 2012.
The KABAM trade mark is registered in Australia and the European Union under Australian trade mark registration number 1410003 on October 4, 2011 and Community Trade Mark registration number 9752131 on July 26, 2011 respectively.
The Complainant generates sales revenue as a result of the advertising and marketing it conducts on its “www.kabam.com’’ website, as well as through the websites and platforms of its partners, Facebook Inc., Google Inc., and Apple Inc. under the KABAM trade mark.
The Domain Name was registered by the Respondent on April 25, 2012. It was connected to a website that closely resembled the Complainant’s website and also had on the website the Complainant’s games and images. The website does not appear to be active at the date of this Decision.
5. Parties’ Contentions
The Complainant contends that the Domain Name is identical or confusingly similar to the KABAM trade mark, the Respondent has no rights or legitimate interests with respect to the Domain Name, and that the Domain Name was registered and is being used in bad faith. The Complainant requests transfer of the Domain Name.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Language of the Proceedings
The Rules, paragraph 11, provide that unless otherwise agreed by the parties or specified otherwise in the registration agreement between the respondent and the registrar in relation to the disputed domain name, the language of the proceedings shall be the language of the registration agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceedings. According to the information received from the Registrar, the language of the registration agreement in relation to the Domain Name is Chinese.
The Complainant has in the Complaint submitted that English be the language of the proceeding for the following reasons:
(1) The website connected to the Domain Name is a close copy of the Complainant’s website, is entirely in the English language, and is targeting English-speaking Internet users. The fact that differences between the two websites exist demonstrates the Respondent’s ability to make fine judgments regarding the use of the English language;
(2) The Domain Name is primarily composed of the term “kabam” which is clearly recognized in the English language but is not a word used in any other language and not in the Chinese language. The Respondent’s facility with the English language is evident in its ability to intentionally create and use such a Domain Name;
(3) The false information contained in the WhoIs record for the Domain Name contains references to “Redwood” and “California”. The Respondent’s familiarity with the English language is evident in its selection of these terms and its half-hearted attempt to make it appear as if the Domain Name is owned by Complainant;
(4) The Complainant’s business is headquartered in the United States and its own website <www.kabam.com> is in English. The Respondent clearly had the ability to understand the Complainant’s website and create the website connected to the Domain Name.
The Respondent did not comment on the language of the proceeding by the specified due date. The Panel accepts the Complainant’s submissions in the Complaint regarding the language of the proceeding and is satisfied that the Respondent appears to be familiar with the English language. The Complainant may be unduly disadvantaged by having to conduct the proceedings in Chinese. Furthermore, the Panel notes that all of the communications from the Center to the parties were transmitted in both Chinese and English. Having considered all the circumstances of this case, the Panel determines that English is the language of the proceeding.
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name, the Complainant must prove each of the following, namely that:
(i) The Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) The Domain Name was registered and being used in bad faith.
C. Identical or Confusingly Similar
The Panel is satisfied that the Complainant has established that it has rights to the trade mark KABAM.
The threshold test for confusingly similarity involves the comparison between the trade mark and the domain name itself to determine likelihood of Internet user confusion. The trade mark would generally be recognizable within the domain name. In this case, the Complainant’s registered trade mark KABAM is the dominant portion of the Domain Name. The addition of the letter “i” before the word KABAM does nothing to minimise the risk of confusion. For the purposes of assessing identity and confusing similarity under paragraph 4(a)(i) of the Policy, it is permissible for the Panel to ignore the generic domain suffix “.com”.
The Panel finds that the Domain Name is identical or confusingly similar to a trade mark in which the Complainant has rights.
D. Rights or Legitimate Interests
The Complainant submits that the Respondent is not commonly known by the Domain Name. It is also highly likely that the registrant details of the Respondent are false. The address of the Respondent has been given as California aee, Redwood, Hongkong, CN. This is not a legitimate address in Hong Kong or China. It is therefore highly unlikely that the Respondent’s name is a genuine name. It is not possible to operate a business providing a bona fide offering of goods or services under a false name. The website connected to the Domain Name is a close imitation of the Complainant’s website and does not appear to utilize any disclaimers to otherwise to disclose its relationship with the Complainant. It is clearly intended to mislead Internet users into believing that the website is either that of the Complainant or is somehow connected or authorised by it. When a respondent attempts to pass itself off as the complainant by imitating the complainant’s website, it is evidence that the respondent lacks rights or legitimate interests in the domain name (see Fandango, Inc. v. zhangyanan, NAF Claim No. 1335297).
The Panel finds that the Complainant has made out a prima facie case, a case calling for an answer from the Respondent. As the Respondent has failed to respond to the Complainant’s contentions, it therefore has failed to displace the assertion on the part of the Complainant that the Respondent has no rights or legitimate interests in the Domain Name. Paragraph 14 of the Rules provides that the Panel may draw such inferences from such a default as it considers appropriate. The Panel is unable to conceive of any basis upon which the Respondent could sensibly be said to have any rights or legitimate interests in respect of the Domain Name.
The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name.
E. Registered and Used in Bad Faith
To succeed under the Policy, a Complainant must show that the Domain Name has been both registered and used in bad faith. It is a double requirement.
The Panel is satisfied that the Respondent must have been aware of the Complainant’s KABAM trade mark when it registered the Domain Name. The fact that the Domain Name incorporates the Complainant’s trade mark in its entirety and has registrant details which includes part of the address of the Complainant is in the Panel’s view evidence that the registration of the Domain Name was in bad faith.
With respect to the use of the Domain Name, the fact that the Respondent has set up a website that imitates the Complainant’s website, trade marks, logos, images and also uses the Complainant’s games’ names show a clear intention to confuse and mislead Internet users into believing that the Respondent’s website is and the products sold on them are authorised or endorsed by the Complainants for commercial gain. The Panel concludes the above is clearly bad faith under paragraph 4(b)(iv) of the Policy.
The Panel also concludes that the Domain Name was registered and is being used in bad faith.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name, <ikabam.com> be transferred to the Complainant.
Dated: July 18, 2012