World Intellectual Property Organization

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Realm Entertainment Limited v. Sheref Selcuk / Domains By Proxy, LLC

Case No. D2012-2419

1. The Parties

The Complainant is Realm Entertainment Limited of Birkirkara, Malta, represented by Domain and Intellectual Property Consultants, DIPCON AB, Sweden.

The Respondent is Sheref Selcuk of London, United Kingdom of Great Britain and Northern Ireland / Domains By Proxy, LLC of Scottsdale, Arizona, United States of America.

2. The Domain Name and Registrar

The disputed domain name <bets10-giris.net> is registered with GoDaddy.com, LLC (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 11, 2012. On December 11, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 12, 2012, the Registrar 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 December 13, 2012 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on December 17, 2012.

The Center verified that the Complaint together with the amendment to 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 December 18, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was January 7, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 15, 2013.

The Center appointed Kaya Köklü as the sole panelist in this matter on January 25, 2013. 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.

In accordance with the Rules, paragraph 11, and since the Parties have not agreed otherwise, the Panel finds that the language of the administrative proceedings is the language of the Registration Agreement (i.e. English).

4. Factual Background

The Complainant is a limited liability company which is incorporated in Malta. It provides online gambling products and games under the trademark BETS10.

The Complainant is the owner of the BETS10 Community trademark (CTM reg. no. 009941139), registered on September 14, 2011 in the classes 36, 38 and 41.

The Complainant further owns and operates a game site at “www.bets10.com”.

The Respondent seems to be an individual located in London, United Kingdom. It is the owner and operator of the disputed domain name <bets10-giris.net>, which was created on November 26, 2011 and resolves to a website in Turkish.

5. Parties’ Contentions

A. Complainant

The Complainant requests the transfer of the disputed domain name.

The Complainant is of the opinion that the disputed domain name is confusingly similar to the Complainant’s trademark as it entirely incorporates the Complainant’s BETS10 trademark. The Complainant argues that the only difference between the disputed domain name and the Complainant’s trademark is that the disputed domain name additionally comprises the generic Turkish term “giris”, which means “entry” in the English language. It is argued that the “addition of a commonly used and descriptive market expression is not enough to distinguish the wording in the domain name from the wording in the registered trademark.”

Furthermore, the Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name. In particular, the Complainant states that the Complainant has never granted a permission or license to the Respondent concerning the use of its BETS10 trademark. The Complainant alleges that the Respondent has never used and does not intend to use the BETS10 trademark in connection with a bona fide offering of goods and services. The Complainant rather believes that the disputed domain name was registered for the sole purpose to commercially profit from misled consumers searching for information about the Complainant’s business.

Finally, it is argued that the Respondent has registered and is using the disputed domain name in bad faith. The Complainant believes that due to the wide recognition of the BETS10 trademark with more than 50 million views on the genuine game site “www.bets10.com” per month, the Respondent was well aware of the BETS10 trademark when registering the disputed domain name.

B. Respondent

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 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 the trademark 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 Complainant bears the burden of proving that all these requirements are fulfilled, even if the Respondent has not replied to the Complaint. Stanworth Development Limited v. E Net Marketing Ltd., WIPO Case No. D2007-1228.

However, concerning the uncontested information provided by the Complainant, the Panel may as appropriate accept the provided reasonable factual allegations in the Complaint as true. Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110.

Further it is noted that the Panel has taken note of the WIPO Overview of Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”) and, where appropriate, will decide consistent with the WIPO Overview 2.0.

A. Identical or Confusingly Similar

The Panel finds that the disputed domain name is confusingly similar to the BETS10 Community trademark of the Complainant.

First, the Panel confirms that the Complainant has satisfied the threshold requirement of having trademark rights regarding the sign “bets10”. As evidenced in the Complaint, the Complainant is the owner of a BETS10 Community trademark, which was registered on September 14, 2011 and includes protection for various kinds of gambling and betting services and products.

Although not identical, the disputed domain name fully incorporates the trademark BETS10.

The disputed domain name differs from the trademark BETS10 only by the addition of the generic Turkish term “giris”, which means “entry” in the English language. In the Panel’s view, the addition of a generic term like “giris” does not negate the confusing similarity between the Complainant’s trademark and the disputed domain name. The Panel finds that this incorporation is purely descriptive and does not create a new distinctiveness separate from the Complainant’s trademark BETS10. On the contrary, the full inclusion of the Complainant’s trademark in combination with this generic term “giris” may even enhance the false impression that the website linked to the disputed domain name is somehow officially related to the Complainant as it falsely suggests being the entrance into the Complainant’s world of games.

B. Rights or Legitimate Interest

The Panel further finds that the Respondent has not demonstrated any rights or legitimate interests in the disputed domain name.

While the burden of proof remains with the Complainant, the Panel recognizes that this would result in the impossible task of proving a negative, in particular as the evidence needed to show the Respondent’s lack of rights or legitimate interests is primarily within the knowledge of the Respondent. Therefore, the Panel agrees with prior UDRP panels that the Complainant is required to make out a prima facie case before the burden shifts to the Respondent to show that it has rights or legitimate interests in the disputed domain name in order to meet the requirements of paragraph 4(a)(ii) of the Policy, Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455.

The Panel finds that the Complainant has satisfied this requirement, while the Respondent has failed to file any evidence or argument to sufficiently demonstrate a right or legitimate interest in the disputed domain name according to the Policy, paragraphs 4(a)(ii) and 4(c).

With its Complaint, the Complainant has provided uncontested prima facie evidence that the Respondent has no trademark, license or any similar rights to use the Complainant’s trademark in the disputed domain name.

In the absence of a Response, the Respondent failed to demonstrate any of the other nonexclusive circumstances evidencing rights or legitimate interests under the Policy, paragraph 4(c), or any other evidence of a right or legitimate interest in the disputed domain name. Especially, the Respondent has failed to show that the disputed domain name has been used in connection with a bona fide offering of goods or services. Furthermore, there is no indication in the current record that the Respondent is commonly known by the disputed domain name.

There is also no indication that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name without the intent for commercial gain to misleadingly divert Internet users or to tarnish the BETS10 trademark. Quite the contrary, it appears that the Respondent particularly tries to mislead Turkish speaking customers by causing the impression that the website linked to the disputed domain name is an official site, being the entrance into the world of games provided by the Complainant.

Hence, the Panel finds that the Complainant has also satisfied the second requirement of the Policy, namely paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

The Panel is convinced that the Respondent has registered and is using the disputed domain name in bad faith.

The Panel believes that the Respondent must have known the Complainant’s BETS10 trademark when the disputed domain name was created on November, 26, 2011, particularly given that the disputed domain name has been registered after the Complainant’s trademark and gambling business has been launched in Turkey and outside.

It appears that the Respondent has registered the disputed domain name solely for the purpose of creating an association with the Complainant, in particular with its provided products and services. According to the print-outs of the websites linked to the disputed domain name provided as Annexes to the Complaint, the Panel is convinced that the Respondent has intentionally registered the disputed domain name in order to create the false impression that the website is somehow officially linked to the Complainant. By this, the Panel believes that the disputed domain name was registered and used for the sole purpose to commercially profit from misled consumers searching for information about the Complainant’s business.

Also, the Panel finds that the Respondent’s failure to respond to the Complaint supports the conclusion that it has registered and used the disputed domain name in bad faith in order to mislead Internet users.

Overall, the Panel believes that the above demonstrates a typical cybersquatting case.

The Panel therefore concludes that the disputed domain name was registered and is being used in bad faith and that the Complainant consequently has satisfied the third element of the Policy, namely, paragraph 4(a)(iii) of the Policy.

7. Decision

For 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 <bets10-giris.net> be transferred to the Complainant.

Kaya Köklü
Sole Panelist
Date: February 8, 2013

 

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