WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Bossa Studios Limited v. Fundacion Private Whois
Case No. D2014-0717
1. The Parties
Complainant is Bossa Studios Limited of London, United Kingdom of Great Britain and Northern Ireland ("United Kingdom"), represented by Sheridans Solicitors, United Kingdom.
Respondent is Fundacion Private Whois of Panama. Respondent has failed to respond or appear with or without representation.
2. The Domain Name and Registrar
The disputed domain name <surgeonsimulator.com> (the "Disputed Domain Name") is registered with Internet.bs Corp. (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on May 2, 2014. On May 2, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On May 7, 2014, the Registrar transmitted by email to the Center its verification response confirming that 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 Respondent of the Complaint, and the proceedings commenced on May 8, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was May 28, 2014. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on May 30, 2014.
The Center appointed Maxim H. Waldbaum as the sole panelist in this matter on June 4, 2014. 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
Complainant has the following trademark registrations and rights:
SURGEON SIMULATOR stylized logo, European Community Trademark registration number 011731271, filed on April 11, 2013 and registered on November 27, 2013.
SURGEON SIMULATOR, unregistered or common law trademark rights for purposes of the Policy (as discussed below).
The Disputed Domain Name was registered on January 30, 2013.
5. Parties' Contentions
Complainant alleges that the Disputed Domain Name <surgeonsimulator.com> is identical or confusingly similar to a trademark or service mark in which Complainant has rights. Complainant, a computer games developer, developed a game called "Surgeon Simulator" (the "Game") in 2013 at Global Jam, a global computer programming event well covered in the media, on January 28, 2013. The Game was released to the public following the Global Jam and in only two days had 967,242 views of a YouTube video about the Game and was covered in media aimed at the gaming community. At the time of the filing of the Complaint, the Game had been played online 5,113,348 times and was well known on YouTube and Steam. The Game was nominated for a British Academy Games Award in 2014. Complainant formally registered trademark rights in SURGEON SIMULATOR by application on April 11, 2013 and formal registration on November 27, 2013.
Respondent did not reply to Complainant's contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Panel finds that the Disputed Domain Name <surgeonsimulator.com> is confusingly similar to Complainant's trademark SURGEON SIMULATOR. The Disputed Domain Name uses Complainant's
well-known trademark in its entirety and is therefore likely to cause customer confusion with Complainant's trademark.
B. Rights or Legitimate Interests
Complainant has presented evidence of its rights in the trademark SURGEON SIMULATOR, referencing both formal registration in Europe as well as pre-existing usage sufficient to warrant unregistered or common law trademark protection.
Complainant alleges, and Respondent has not disputed, that Respondent has only used the Disputed Domain Name as a holding page for sponsored links, some of which include sites which present either competing computer games, or else the Game itself for free. Other links allow the user to offer to purchase the Disputed Domain Name.
Complainant alleges, and Respondent has not disputed, that Respondent has not at any time been known by the Disputed Domain Name or made use of it either as connected with a bona fide offer for services or goods or as a legitimate noncommercial or fair use site.
The Panel finds that Respondent has never been authorized or licensed to use Complainant's trademark, has not used the site in connection with a bona fide offer for services or goods, and has not used the site for any legitimate noncommercial use.
Therefore, the Panel finds that Respondent has no rights or legitimate interests in the Disputed Domain Name.
C. Registered and Used in Bad Faith
The Disputed Domain Name was registered on January 30, 2013, two days after the Global Jam at which the Game debuted, by which time the YouTube video on the Game had garnered nearly a million hits online. The Panel finds that Respondent cannot have been unaware of Complainant's Game and registered with the intention to capitalize on the good will generated by Complainant. Complainant rightly points out that such conduct constitutes bad faith. Vovlo Trademark Holding AB v. Unasi, Inc., WIPO Case No. D2005-0556; Lewis Black v. Burke Advertising, LLC, WIPO Case No. D2006-1128.
Complainant has also presented evidence that Respondent's conduct with regard to the Disputed Domain Name is part of a pattern of behavior in which Respondent registers domain names containing well-known trademarks and uses them to prevent the owner of the trademark from registering a domain name with the mark.
Therefore, the Panel finds that Respondent has registered and used the Disputed Domain Name 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 Disputed Domain Name <surgeonsimulator.com> be transferred to Complainant.
Maxim H. Waldbaum
Date: June 12, 2014