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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Supercell Oy v. Davd Ahmdzadh

Case No. D2017-0502

1. The Parties

The Complainant is Supercell Oy of Helsinki, Finland, represented by Roschier Brands, Attorneys Ltd., Finland.

The Respondent is Davd Ahmdzadh of Stockholm, Sweden.

2. The Domain Name and Registrar

The disputed domain name <iranclash.net> 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 March 10, 2017. On March 10, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 11, 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 March 24, 2017. In accordance with the Rules, paragraph 5, the due date for Response was April 13, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 18, 2017.

The Center appointed Alistair Payne as the sole panelist in this matter on April 25, 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 the European Union under registration numbers 011158086, 012224465, 013640974 and 013641345, and in the United States of America (“United States”) under registration numbers 4643127 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, based in Sweden, registered the disputed domain name on September 6, 2016 and at the date of filing of the Complaint, the disputed domain name redirected to the website at <iranclash.com>.

5. Parties’ Contentions

A. Complainant

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”. Secondly, it submits that the other element of the disputed domain name, namely the country name “Iran”, is descriptive and non-distinctive in the context of the redirection of the disputed domain name to <iranclash.com> which is directed to an Iranian target market and which website is notably in Persian. In addition, says the Complainant, the Respondent’s offer on the latter website to sell user accounts to the Complainant’s game are against its terms of service. It notes that the website at the redirected domain name uses several of the Complainant’s trade marks without authority, including the CLASH OF CLANS mark and the artwork of game characters. The Complainant also notes that the Respondent appears to provide other types of hacks/cheats (for example forbidden “bot” software) to the CLASH OF CLANS game on the “www.iranclash.com” website but notes that as the website is in Persian the Respondent’s offerings are not clear. 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 <iranclash.net> 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, cause commercial harm to the Complainant and at the very least potential commercial gain to the Respondent. 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 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. It says that the Respondent also appears to provide “bot” software to the Clash of Clans at the website to which the disputed domain name redirects. All of this, says the Complainant, amounts to conduct that is evidence of registration and use in bad faith under paragraph 4(b)(iv) of the Policy.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

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 key elements of the disputed domain name, namely “Iranclash”, 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” and that the disputed domain name uses this word in a secondary textual position after the country name “Iran”. That said, it stands to reason that with a country in first position, the core static element in the disputed domain name is “clash”. This is, however, a common English word which the Respondent notes is used by many game developers in the online gaming community to indicate the nature of the game as being a conflict or battle. In Supercell Oy v. Davood Ahmadzadeh, WIPO Case No. D2017-0341, concerning the same Respondent and the corresponding “.com” domain name, the Respondent provided by way of evidence a relatively impressive list of examples in this regard. Although, as the Complainant asserts, it may be the case that gamers refer to its game colloquially as “Clash” (in relation to which the Panel makes no finding), there is insufficient evidence such as would support a finding of secondary meaning attaching to that word in relation to the Complainant’s game. While evidence of such secondary meaning would certainly assist the Complainant here, the Panel also notes that very often the leading term in a mark is the one which triggers an association in the minds of consumers. However, the Panel’s attention has been brought to the fact in the earlier decision noted above that the word “clash” is used by a number of providers in the online game industry.

The analysis under this head is an objective comparison which can also look at the overall impression afforded by the disputed domain name and the Complainant’s mark. There are visual and aural differences. The disputed domain name begins with “Iran” whereas the Complainant’s mark begins with “Clash”. The leading part of a mark is the portion which users tend to focus upon. The Panel notes that the Complainant’s mark includes the words “of clans” which are not included in the disputed domain name.

Overall, the Panel finds that while ultimately the marks may be differentiated by Internet consumers, as a consequence of the leading element “clash” in the Complainant’s trade mark and of the primary position in the marketplace of the Complainant’s game, there remains some possible risk of confusion. The Panel notes that this element of the Policy is generally treated by panels as a “gatekeeper” for the main analysis under the second and third elements and therefore a “standing” threshold is generally adopted which is not necessarily equivalent to the threshold adopted in a classical trade mark infringement analysis. In the particular circumstances here, the Panel is prepared to adopt such a threshold in this case and to make a finding of confusing similarity.

As a result, the Complaint succeeds under the first element of the Policy.

B. Rights or Legitimate Interests

The disputed domain name does not incorporate the whole of the Complainant’s CLASH OF CLANS trade mark but only the word “clash”. The fact that the word “clash” is in common usage by a number of game developers and that there is little evidence on the present record of secondary meaning concerning the use of “clash” in relation to the Complainant’s game, does not adequately support the Complainant’s case under the second element of the Policy that the Respondent has no rights or legitimate interests in the disputed domain name. In addition and significantly, the Panel is not persuaded by the evidence on the record that the Complainant has met its burden. For these reasons and for reasons based on lack of supporting evidence of bad faith, as set out under Part C below, the Panel finds that the Complaint fails under the second element of the Policy.

C. Registered and Used in Bad Faith

The Panel is not persuaded by the Complainant’s arguments concerning registration and use in bad faith in relation to the third element of the Policy. Its case appears to be quite vague and undeveloped, focused as it is on the redirected website at the disputed domain name and on the alleged distribution or sale of CLASH OF CLANS user accounts by the Respondent, the possible interference with customer contractual relations, the use of hacking “bots” and some examples of intellectual property rights infringement. The Complainant also admits in the Complaint that because the website is in Persian it is unclear in various respects as to the extent of the Respondent’s offerings or activities.

This case concerns the same Respondent as in WIPO Case No. D2017-0341, supra (albeit now from a different physical address). That case concerned the identical “.com” domain name. In view of its findings in that case (in which case the Respondent filed a detailed response) and the lack of additional evidence or arguments provided by the Complainant in this case, the Panel remains unconvinced that the Respondent’s website to which the disputed domain name redirected at the date of filing of this Complaint, is evidence of the registration and use of the disputed domain name in bad faith. The Complainant itself notes that it is unsure of the extent of activity on the Respondent’s website because it is all in the Persian language. The burden was on the Complainant to investigate and provide translations by way of supporting evidence as appropriate, which it has not done in this case.

On this basis the Panel finds that the Complainant has not met the burden upon it of demonstrating sufficient supportive evidence to make out is case in terms of paragraphs 4(b)(iii) or 4(b)(iv) of the Policy and the Panel is accordingly unpersuaded on the record before it that the Respondent has either registered or used the disputed domain name in bad faith. As a result, the Panel finds that the Complaint also fails under this element of the Policy.

7. Decision

For the foregoing reasons, the Complaint is denied.

Alistair Payne
Sole Panelist
Date: April 28, 2017

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