WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Safepay Malta Limited v. ICS Inc
Case No. D2015-0403
1. The Parties
The Complainant is Safepay Malta Limited of Ta’ Xbiex, Malta, represented by DIPCON AB, Sweden.
The Respondent is ICS Inc of Grand Cayman, Cayman Islands, Overseas Territory of the United Kingdom of Great Britain and Northern Ireland.
2. The Domain Name and Registrar
The disputed domain name <betasfe.com> (the “Domain Name”) 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 March 6, 2015. On March 6, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On March 10, 2015, the Registrar transmitted by email to the Center its verification response disclosing the registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on March 12, 2015 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 amended Complaint on March 18, 2015.
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 March 20, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was April 9, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 10, 2015.
The Center appointed William P. Knight as the sole panelist in this matter on April 16, 2015. 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 a limited liability company incorporated in Malta. It operates an Internet gambling site at <betsafe.com>. It claims 450,000 customers from over 100 different countries. It is the registered owner of the Community Trade Marks no. 007214059 and 011385036 for BETSAFE, with priority dates in 2008 and 2011 respectively, and 008585648 for BETSAFE.COM, with a priority date in 2009.
The Domain Name appears to have been acquired by the Respondent, through a proxy service, on or about March 30, 2014.
The Domain Name offers links to online gambling sites other than the Complainant.
There is no connection of any kind between the Complainant and the Respondent.
The Complainant has written a letter sent by email to the Respondent at the proxy service in whose name the Domain Name was registered complaining of its registration and use of the Domain Name. No reply was received.
5. Parties’ Contentions
In accordance with paragraph 4(a) of the Policy, the Complainant asserts, inter alia, as follows:
(i) that it has trade mark rights in the mark BETSAFE (“Trade Mark”) and the Domain Name is confusingly similar to the Trade Mark;
(ii) that the Respondent has no rights or legitimate interests in respect of the Domain Name;
(iii) that the Domain Name has been registered and is being used in bad faith.
There is no doubt concerning the Complainant’s prior rights in the Trade Mark. The Complainant asserts that the transposition of the letter “a” and the letter “s” does not distinguish the Domain Name from the Trade Mark. The addition of the Top Level Domain suffix “.com” is irrelevant for the assessment of confusing similarity between the Trade Mark and the Domain Name.
In respect of the second requirement of the Policy, the Complainant states that the Respondent is not licensed by the Complainant to use a version of the Trade Mark as the Domain Name, the use of the Domain Name to direct Internet users to the Complainant’s competitors is not a legitimate use of the Domain Name and there is nothing in the name or other details of the Respondent to indicate that it is known by or uses BETASFE as a trade mark or otherwise for any purpose.
The Complainant asserts that bad faith registration and use is shown in the terms of paragraph 4(b)(iv) of the Policy in that the Respondent is using the Domain Name with the intention of attempting to attract, for commercial gain, Internet users to the websites of competitors of the Complainant, by creating a likelihood of confusion with the Trade Mark as to the source, sponsorship, affiliation or endorsement of those competing services and service providers.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
The onus is on the Complainant to prove each of the three elements set out in paragraph 4(a) of the Policy.
However, the Respondent has had ample opportunity to respond to the allegations of the Complainant and has not done so. The Respondent cannot be in a better position by failing to respond than if it had chosen to take advantage of the opportunities afforded to it, expressly, by paragraph 4(c) of the Policy.
Paragraph 15(a) of the Rules instructs the Panel to decide a 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 the absence of any response from the Respondent, the onus upon the Complainant will be satisfied if a conclusion which is capable of being drawn from the evidence provided by the Complainant is not contradicted by the Respondent; see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”) paragraphs 4.6 and 4.7.
A. Identical or Confusingly Similar
As noted, there is no doubt about the Complainant’s prior rights in the Trade Mark.
The determination of confusing similarity is a factual one which must be satisfied by making a side-by-side comparison of the Trade Mark and the Domain Name. In order to satisfy this test, the Trade Mark needs in this case to be recognizable as such within the Domain Name, with the addition of the Top Level Domain suffix “.com” typically being disregarded (although, in this case, the Complainant also has a registered trade mark with this suffix included). Application of the confusing similarity test under the Policy would typically involve a straightforward visual or aural comparison of the Trade Mark with the alphanumeric string in the Domain Name. See WIPO Overview 2.0 paragraph 1.2.
In this case, placed side-by-side, the similarity of the Trade Mark and the Domain Name is self-evident. A domain name which contains a common or obvious misspelling of a trademark normally will be found to be confusingly similar to such trademark, where the misspelled trademark remains the dominant or principal component of the domain name; see WIPO Overview 2.0 paragraph 1.10. The common experience of mis-typing any entry using a keyboard, leads the Panel inexorably to the conclusion that it would be an easy and very likely mistake for users of browser software to type in an incorrect address if seeking <betsafe.com>.
It must be noted that confusion arising from use of the Domain Name in this case must be exacerbated by the fact that it is deliberately redirected to competing Internet gambling sites.
B. Rights or Legitimate Interests
In the absence of any explanation from the Respondent, it is impossible to know how the Respondent happened upon a word so similar to the Trade Mark, or how it could have any legitimate interest in it.
Telling against the Respondent is the fact that the Domain Name redirects to a web page offering the services of the Complainant’s competitors, which surely cannot be ascribed to coincidence, but rather indicates that the Respondent knew of the Complainant and chose the Domain Name with that knowledge.
In the circumstances, the Panel is satisfied that the Respondent has no rights or legitimate interests in the Domain Name.
C. Registered and Used in Bad Faith
In this matter, the Panel is satisfied, principally from the facts that the Respondent registered the Domain Name well after the Complainant’s rights in the Trade Mark commenced and that the Domain Name is redirected to a web page offering Internet gambling sites competing with the Complainant, that the Respondent has registered the Domain Name and is using it in bad faith, exactly as contemplated by paragraph 4(b)(iv) of the Policy.
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 <betasfe.com> be transferred to the Complainant.
William P. Knight
Date: April 17, 2015