WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Merryvale Limited v. men xia
Case No. D2016-1928
1. The Parties
The Complainant is Merryvale Limited of Belize City, Belize, represented by Herzog, Fox & Neeman, Israel.
The Respondent is men xia of Xiamen, Fujian, China.
2. The Domain Name and Registrar
The disputed domain name <betwy88.com> is registered with Bizcn.com, Inc. (the "Registrar").
3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the "Center") on September 22, 2016. On September 22, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 23, 2016, 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. In response to a notification by the Center regarding the mutual jurisdiction, the Complainant filed an amended Complaint on September 29, 2016.
On September 28, 2016, the Center sent an email communication to the Parties in both Chinese and English regarding the language of the proceeding. On September 29, 2016, the Complainant confirmed its request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding by the specified due date.
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 and 4, the Center formally notified the Respondent in both Chinese and English of the Complaint, and the proceedings commenced on October 5, 2016. In accordance with the Rules, paragraph 5, the due date for Response was October 25, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on October 26, 2016.
The Center appointed Douglas Clark as the sole panelist in this matter on November 2, 2016. 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, founded in 2006 in Belize, is a member of the Betway Group. The Complainant and the Betway Group, along with other companies operate a number of online gaming websites under the trade name "Betway". The Complainant holds operation licenses in United Kingdom of Great Britain and Northern Ireland ("UK"), Malta, Italy, Denmark, Spain, Belgium, Germany and Ireland.
The Complainant owns the BETWAY trademark in several jurisdictions including in China, the United States of America ("US"), Australia and the European Union. The Complainant owns a trademark BETWAY in China, Registration No. 14428000 (registered on May 28, 2015). The Complainant also owns a trademark 必威 in China, Registration No. 14427997 (registered on May 28, 2015) which is a transliteration of BETWAY.
The Complainant is also the owner of the domain name <betway.com>.
The Respondent is an individual resident in Xiamen, Fujian, China.
The disputed domain name was registered on July 26, 2016 and resolves to a page that appears to be a website that provides online gambling services.
5. Parties' Contentions
Identical or Confusingly Similar
The Complainant contends that the disputed domain name <betwy88.com> and the BETWAY trademark are identical and confusingly similar. The disputed domain name contains the word "betwy" is an obvious misspelling of BETWAY and is confusingly similar to the BETWAY trademark. The addition of a letters "88" does not affect its similarity. The number 8 is associated with luck in many Asian cultures.
No Rights or legitimate Interests
The Respondent has no connection with the Complainant or any of its affiliates and has never sought or obtained any trademark registrations for BETWAY. It, therefore, has no rights or legitimate interests in the disputed domain name.
Registered and Used in Bad Faith
The Complainant submits that BETWAY is a famous brand that had been in existence for eight years. There is no doubt that the Respondent knew and should have known about the Complainant's mark. The Respondent acquired the disputed domain name not only to disrupt the business of the Complainant and to prevent the Complainant from reflecting its mark in a corresponding domain name but also to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with the BETWAY mark.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
6.1 Language of the Proceeding
The language of the Registration Agreement is Chinese.
The Complainant requests that the language of the proceeding be English on the grounds that a) translating all documents relating to the case would cause undue cost and delay in the proceeding; and b) the website to which the disputed domain name resolves includes English content and a UK phone number under the "Contact Us" button.
The Respondent did not respond to this language request.
Paragraph 11(a) of the Rules provides that:
"Unless otherwise agreed by the parties, or specified otherwise in the registration agreement, the language of administrative proceeding 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."
The Center made a preliminary determination to:
1) accept the Complaint as filed in English;
2) accept a response in either English or Chinese;
3) appoint a Panel familiar with both languages mentioned above, if available.
The final determination of the language of the proceeding lies with this Panel.
The website at the disputed domain name appears to have other choice of languages including English translation for English speaking users. The Panel has reasons to believe that the Respondent has no trouble understanding English.
The Respondent did not respond to the Center's communication regarding the language of the proceeding. This Panel decided in Zappos.com, Inc. v. Zufu aka Huahaotrade, WIPO Case No. D2008-1191, that a respondent's failure to respond to a preliminary determination by the Center as to the language of the proceeding "should, in general, be a strong factor to allow the Panel to decide to proceed in favor of the language of the Complaint".
The Panel considers the merits of the case to be strongly in favor of the Complainant. Translating the Complaint would cause unnecessary delays and costs in the proceeding. The website under the disputed domain name includes English text. These factors lead the Panel to determine to follow the Center's preliminary determination. As the only pleading before the Panel is in English, the Panel will render its decision in English.
6.2 Substantive Issues
To succeed, the Complainant must demonstrate that all of the elements listed in the paragraph 4(a) of the Policy have been satisfied:
(i) the disputed domain name is identical and confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) the Respondent has no rights or interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The disputed domain name <betwy88.com> is confusingly similar to the Complainant's trademark. The letter "a" is missing in the disputed domain name, however, this is a clear possible typographical error. Additionally, the number "8" is a symbol for fortune and luck in the Chinese culture and is often associated with money and gambling, increasing the likelihood of confusion.
The first element of paragraph 4(a) of the Policy is therefore satisfied.
B. Rights or Legitimate Interests
The Respondent has not responded to the Complaint to assert any rights or legitimate interests. Paragraph 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Quetsions, Second Edition ("WIPO Overview 2.0") provides:
"While the overall burden of proof rests with the complainant, panels have recognized that this could result in the often impossible task of proving a negative, requiring information that is often primarily within the knowledge of the respondent. Therefore a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, the burden of production shifts to the respondent to come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such appropriate allegations or evidence, a complainant is generally deemed to have satisfied paragraph 4(a)(ii) of the UDRP."
The Complainant is the owner of over 60 BETWAY trademarks and is an internationally well-known brand. The Respondent has no business or any kind of relationships (licensor, distributor) with the Complainant.
The Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name.
Paragraph 4(c) of the Policy sets out ways in which a respondent may establish it has rights or legitimate interests. These are:
"(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue."
The Respondent has not responded to the Complaint to present any evidence to establish rights or legitimate interests under these heads. None of the circumstances in paragraph 4(c) of the Policy are present in this case.
The second element of paragraph 4(a) of the Policy is therefore satisfied.
C. Registered and Used in Bad Faith
Based on the evidence, the Panel has no hesitation in finding the disputed domain name <betwy88.com> was registered in bad faith and is being used in bad faith.
The website at the disputed domain name resolves to a Chinese website and platform that provides gambling services and offers eight different choices of languages that appear to redirect users to the websites in different languages.
It is clear that the Respondent knew of the Complainant when it registered the disputed domain name not only because of the Complainant's worldwide reputation, but also because the Respondent placed both the BETWAY trademark and 必威 Trademark on its own webpage providing the same services as the Complainant, namely gambling services.
By using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the 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 or location or of a product or service on the respondent's website or location.
The Panel finds that the Respondent registered and is using the disputed domain name in bad faith in accordance with paragraph 4(b)(iv) of the Policy.
The third element of paragraph 4(a) of the Policy is therefore satisfied.
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 <betwy88.com> be transferred to the Complainant.
Date: November 18, 2016