WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Supercell Oy v. Ali Negahban Fard
Case No. D2017-0342
1. The Parties
The Complainant is Supercell Oy of Helsinki, Finland, represented by Roschier Brands, Attorneys Ltd., Finland.
The Respondent is Ali Negahban Fard of East Azerbaijan, Islamic Republic of Iran.
2. The Domain Name and Registrar
The disputed domain name <clash-sell.com> is registered with Realtime Register B.V. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 21, 2017. On February 21, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 22, 2017, 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.
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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on February 28, 2017. In accordance with the Rules, paragraph 5, the due date for Response was March 20, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 21, 2017. The Center received an email communication from the Respondent on March 22, 2017.
The Center appointed Alistair Payne as the sole panelist in this matter on March 29, 2017. 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 based in Finland is the creator of the “Clash Of Clans” online mobile game and owns trade mark registrations in various jurisdictions for CLASH OF CLANS and for its CLASH OF CLANS combined logo and word mark and in particular in Europe under registration numbers 011158086, 012224465, 013640974 and 013641345, and in the United States of America under registration numbers 1197671 and 4327980 and the earliest of these trade marks was registered in December 2012. The Complainant operates a website at “www.clashofclans.com” for its online mobile game.
The Respondent registered the disputed domain name on July 11, 2015, and operates a website from it that appears to sell user accounts to the Complainant’s “CLASH OF CLANS” game.
5. Parties’ Contentions
The Complainant submits that it owns registered trade mark rights for its CLASH OF CLANS word and logo marks as set out above and that both marks are well-known marks as a consequence of their level of recognition amongst consumers. It notes in particular the very high rankings that the game receives in mobile game rankings and that in 2016 the Complainant expanded the game’s franchise with a new offering entitled “Clash Royale”.
The Complainant says that the disputed domain name is confusingly similar to its CLASH OF CLANS marks because it includes the dominant and distinctive element “clash” which appears as the first and primary element in the disputed domain name. Secondly it submits that the other element of the disputed domain, namely the word “sell” is descriptive and non-distinctive and is a reference to the Respondent’s sale or offer for sale of CLASH OF CLANS user accounts on the “www.clash-sell.com” website. In addition says the Complainant, the Respondent’s offer on its website to sell user accounts to the Complainant’s game are against its terms of service and the website at the disputed domain name uses several of the Complainant’s trade marks without authority, including the CLASH OF CLANS mark and the artwork of game characters.
All of this and the fact that the trade mark CLASH OF CLANS is often abbreviated to “CLASH” by the Complainant and its customers as well as the game industry press, only increases the likelihood of confusion according to the Complainant.
On information and belief the Complainant submits that the Respondent does not have rights or legitimate interests to the disputed domain name and has not registered it as a trade mark, service mark or company name anywhere in the world at the time of applying for registration of the disputed domain name. The Complainant says that it has not licensed its trade mark or otherwise permitted the Respondent to
register the disputed domain name and that there is no relationship between the Complainant and the Respondent and the contested website is used for illegitimate and commercial bad faith purposes.
The Complainant says that the main purpose of the Respondent in registering the disputed domain name has been to disrupt the business of the Complainant in relation to the CLASH OF CLANS game. The Complainant says that the Respondent is facilitating the violation of the Complainant’s Terms of Service causing bans, termination of licenses and other negative consequences to the users of the Respondent’s game at the disputed domain name. Accordingly, says the Complainant, the Respondent has therefore registered and used the disputed domain name in bad faith under paragraph 4(b)(iii) of the Policy.
According to the Complainant the Respondent’s website at the disputed domain name and the distribution or sale of CLASH OF CLANS user accounts from its website, causes commercial harm to the Complainant and at the very least potential commercial gain to the Respondent. The Complainant says that the Respondent is aware of the Complainant’s public Terms of Service and that the Respondent is in violation of those terms. The Complainant says that it is not aware of all of the ways in which the Respondent commercially gains from use of the website at the disputed domain name but the potential commercial gains are obvious and that this conduct fulfils the requirements of paragraph 4(b)(iv) of the Policy and this is evidence of registration and use in bad faith.
The Respondent did not reply to the Complainant’s contentions. The Center did, however, receive one email communication from the Respondent on March 22, 2017, with the following content:
6. Discussion and Findings
A. Identical or Confusingly Similar
The Complainant has demonstrated that it has registered trade mark rights in its CLASH OF CLANS mark in at least two jurisdictions as noted above (dating from prior to the registration of the disputed domain name). It also asserts that this mark is well-known and provides some evidence that at least in the gamer community it has developed a substantial reputation as one of the best known online games. The issue for the Panel is whether the operative elements of the disputed domain name, namely “clash-sell”, are confusingly similar to the Complainant’s CLASH OF CLANS mark.
Considering both marks on a side by side analysis it is immediately apparent that the common element is the word “clash”. The disputed domain name uses this word in a primary position followed by a hyphen and the non-distinctive secondary English word “sell”. Although the word “clash” is a common English word, the Complainant asserts that gamers refer to its game colloquially as “Clash”. The Panel notes that the evidence provided by the Complainant, is insufficient to support a finding that the word “Clash” has developed secondary meaning in relation to the Complainant’s game such that it has independent trade mark significance. Further, the word “clash” appears to be in relatively common usage between providers in the online game industry.
The analysis under this element of the Policy is however an objective comparison which sometimes also looks at the overall impression afforded by the disputed domain name and the Complainant’s registered trade mark rights. Both begin with the term “clash”. The Complainant’s mark includes the words “of clans” versus the use of “-sell” in the disputed domain name. The use of a hyphen and the word “sell” after “clash” in the disputed domain name does not as such distinguish the disputed domain name from the Complainant’s CLASH OF CLANS mark. There is very little to distinguish the disputed domain name from the Complainant’s mark and therefore on a side by side comparison the disputed domain name is confusingly similar to the Complainant’s registered mark for purposes of the Policy. The fact that people seeing the Respondent’s website might incorrectly assume that there is some connection with the Complainant only serves to reinforce the Panel’s view of confusing similarity in this case.
Accordingly, the Complaint succeeds under the first element of the Policy.
B. Rights or Legitimate Interests
The Complainant has submitted that it has not authorised or licensed the Respondent’s use of the disputed domain name or to sell its user accounts, that it has no commercial connection with the Respondent in relation to its Clash of Clans game and that the Respondent has no trade mark rights in the disputed domain name.
On this basis and for the reasons set out below under Part C concerning the illegitimate activities of the Respondent and its apparent attempt to target the Complainant’s game, the Panel finds that the Complainant has made out a prima facie case that the Respondent has no rights or legitimate interest in the disputed domain name. The Complainant’s contentions have not been rebutted by the Respondent and as a result the Complaint succeeds under the second element of the Policy.
C. Registered and Used in Bad Faith
The disputed domain name was registered on July 11, 2015 after the Complainant had registered its trade marks.
The Panel notes that the website at the disputed domain name appears to be targeted quite blatantly at selling CLASH OF CLANS user accounts without the Complainant’s authority and that this is the main purpose of the website. It seems quite clear in this case that the Respondent is seeking to attract Internet users to its website at the disputed domain name in order to sell user accounts for the Complainant’s CLASH OF CLANS game. This amounts to intentionally attempting to attract Internet users for commercial gain to the Respondent’s website or online location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website in terms of paragraph 4(b)(iv) of the Policy which is evidence of registration and of use in bad faith under the third element of the Policy. As a result the Complaint succeeds under the third element 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 <clash-sell.com> be transferred to the Complainant.
Date: April 12, 2017