WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Realm Entertainment Limited v. FBS INC, Whoisprotection biz / Gulsah Ayaz, Gulsah Ayaz
Case No. D2017-0952
1. The Parties
The Complainant is Realm Entertainment Limited of Ta' Xbiex, Malta, represented by Ports Group AB, Sweden.
The Respondent is FBS INC, Whoisprotection biz / Gulsah Ayaz, Gulsah Ayaz of Istanbul, Turkey, self-represented.
2. The Domain Names and Registrar
The disputed domain names <b10bet.com> and <b10bet1.com> are registered with FBS Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 11, 2017. On May 11, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On May 12, 2017, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint and indicating that the language of the registration agreements of the disputed domain names is Turkish. The Center sent an email communication to the Complainant on May 15, 2017 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 May 16, 2017.
Pursuant to the Complaint submitted in English and the registrar verification dated May 12, 2017 stating that Turkish is the language of the registration agreement of the disputed domain names, on May 15, 2017, the Center sent a request in English and Turkish that the Parties submit their comments on the language of the proceeding. On May 18, 2017, the Complainant submitted its request for English to be the language of the proceeding. The Respondent did not submit any comments on the language of the proceeding.
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 in both English and Turkish the Respondent of the Complaint, and the proceedings commenced on May 26, 2017. In accordance with the Rules, paragraph 5, the due date for Response was June 15, 2017. The Respondent submitted two informal communications in Turkish on May 29, 2017, however did not submit any formal response. Accordingly, the Center informed that it would proceed to appoint the Administrative Panel on June 16, 2017.
The Center appointed Kaya Köklü as the sole panelist in this matter on June 20, 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 is a limited liability company which is incorporated in Malta. It provides online gambling products and services since 2011.
The Complainant is the owner of the trademark B10. According to the case file, there are two registered B10 trademarks, which were filed with the European Union Intellectual Property Office (“EUIPO”) and registered on May 8, 2014 (no. 012422911) and on April 18, 2014 (no. 012398178). Each one claims protection for services in classes 36, 38 and 41.
The disputed domain name <b10bet.com> was registered on February 12, 2017.
The disputed domain name <b10bet1.com> was registered on March 29, 2017.
The Respondent is composed of a domain name privacy registration service and an individual from Istanbul, Turkey (both of them jointly referred to as the “Respondent” in the following decision).
At the time of the decision, the disputed domain names did not resolve to an active website. However, screenshots provided in the case file indicate that at least the disputed domain name <b10bet.com> resolved to an online gaming website for a certain period of time.
As evidenced by the Complainant, the Respondent did not reply to an attempt of the Complainant to solve this dispute inter partes before initiating the present administrative proceeding.
5. Parties’ Contentions
The Complainant requests the transfer of the disputed domain names.
The Complainant is of the opinion that the disputed domain names are confusingly similar to the Complainant’s trademark B10.
Furthermore, the Complainant argues that the Respondent has no rights or legitimate interests in the disputed domain names and registered and used the disputed domain names in bad faith.
The Respondent did not reply to the Complainant’s contentions.
In her email communications of May 29, 2017, the Respondent only alleges that she has nothing to do with the disputed domain names. The Respondent did not file any further comments or requests.
6. Discussion and Findings
6.1. Language of the Proceeding
Although the language of the registration agreement of the disputed domain names is the Turkish language, the Panel finds that it would be inappropriate, given the circumstances of this case, to conduct the proceedings in Turkish and request costly and time consuming translations of documents by the Complainant, while the Respondent failed to raise any objection to the Center’s communication regarding the language of the proceedings, although communicated in English and Turkish. The Panel notes that the Respondent was given the opportunity to respond in Turkish, but preferred not to oppose to the Complainant’s language request or even formally reply to the Complaint within the deadline.
In light of the above, the Panel comes to the conclusion that the Respondent will not be prejudiced by a decision being rendered in English.
6.2. Substantive Issues
According to paragraphs 14(a) and 15(a) of the Rules, the Panel shall decide the Complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable and on the basis of the Complaint where no Response has been submitted.
In accordance with paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements is satisfied:
(i) the disputed domain names are identical or confusingly similar to the trademark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain names; and
(iii) the disputed domain names have been registered and are being used in bad faith.
Paragraph 4(a) of the Policy states that the Complainant bears the burden of proving that all these requirements are fulfilled, even if the Respondent has not replied to the Complaint. Stanworth Development Limited v. E Net Marketing Ltd., WIPO Case No. D2007-1228.
However, concerning the uncontested information provided by the Complainant, the Panel may, where relevant, accept the provided reasonable factual allegations in the Complaint as true. Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110.
The Panel has taken note of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) and, where appropriate, will decide consistent with the WIPO Overview 3.0.
A. Identical or Confusingly Similar
First, the Panel confirms that the Complainant has satisfied the threshold requirement of having relevant trademark rights. As indicated above, the Complainant is the registered owner of two B10 European Union Trademarks.
Although not identical, the disputed domain names fully incorporate the Complainant’s trademark B10.
The disputed domain names differ from the trademark B10 only by the addition of the suffixes “bet” and “bet1”. In the Panel’s view, these additions do not negate the confusing similarity between the Complainant’s trademark and the disputed domain names, as they are purely descriptive and do not create a new distinctiveness separate from the Complainant’s trademark B10. On the contrary, the full inclusion of the Complainant’s trademark in combination with “bet” and “bet1” may even enhance the false impression that the disputed domain names are somehow officially related to the Complainant as both mentioned suffixes shall obviously create an association to the Complainant’s core business of online gambling and betting.
In view of the above, the Panel is satisfied that the Complainant has met the requirements under paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Panel further finds that in the absence of a Response, the Respondent has failed to demonstrate any rights or legitimate interests in the disputed domain names.
While the burden of proof remains with the Complainant, the Panel recognizes that this would often result in the impossible task of proving a negative, in particular as the evidence needed to show the Respondent’s lack of rights or legitimate interests is primarily within the knowledge of the Respondent. Therefore, the Panel agrees with prior panels that the Complainant is required to make out a prima facie case before the burden of production of evidence shifts to the Respondent to show that it has rights or legitimate interests in the disputed domain names in order to meet the requirements of paragraph 4(a)(ii) of the Policy. Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455.
The Panel finds that the Complainant has satisfied this requirement, while the Respondent has failed to file any evidence or convincing argument to demonstrate a right or legitimate interest in the disputed domain names according to the Policy, paragraphs 4(a)(ii) and 4(c).
With its Complaint, the Complainant has provided uncontested prima facie evidence that the Respondent has no rights or legitimate interests to use the Complainant’s trademark B10 in the disputed domain names.
In the absence of a formal Response, there is no indication in the current record that the Respondent is commonly known by the disputed domain names. The Respondent has also failed to demonstrate any of the other non-exclusive circumstances evidencing rights or legitimate interests under the Policy, paragraph 4(c) or any other evidence of a right or legitimate interest in the disputed domain names. Finally, the Panel does not see any indication in the record for assessing a bona fide offering of goods or services by the Respondent.
C. Registered and Used in Bad Faith
The Panel is convinced that the Respondent must have been aware of the Complainant’s B10 trademark when it registered the disputed domain names on February 12, 2017 and March 29, 2017.
The Panel is of the opinion that the Respondent intentionally attempted to create a likelihood of confusion among customers and/or to otherwise take advantage of the Complainant’s trademark, probably for commercial gain or some other illegitimate benefit.
It appears that the Respondent has registered the disputed domain names solely for the purpose of creating an association with the Complainant, in particular with its provided online gambling services. According to the provided documents in the case file, the Panel is convinced that the Respondent has intentionally registered the disputed domain names in order to create the false impression that the website is somehow officially linked to the Complainant. By this, the Panel believes that the disputed domain names were registered and used for the sole purpose to commercially profit from misled consumers searching for the online games provided by the Complainant.
Furthermore, the Panel finds that the Respondent’s failure to respond to the substance of the Complaint supports the conclusion that it has registered and is using the disputed domain names in bad faith in order to mislead Internet users.
The Panel also notes that the Respondent used a privacy service when creating the disputed domain names. Although privacy services might be legitimate in many cases, it is for the Panel difficult to see in the present case why the Respondent should need to protect its identity except to make it difficult for the Complainant to protect its trademark rights. The Panel rather believes that the choice of the disputed domain names (which fully incorporate the Complainant’s trademark B10), rather indicates that the Respondent deliberately opted for a privacy shield in order to prevent an efficient enforcement of legitimate trademark rights by the Complainant.
The fact that the disputed domain names do not resolve to an active website anymore, does not change the Panel’s findings in this respect.
All in all, the Panel cannot conceive of any good faith use of the disputed domain names which is not related to the trademark B10 owned by the Complainant.
The Panel therefore concludes that the disputed domain names were registered and are being used in bad faith and that the Complainant consequently has satisfied the third element of the Policy, namely, paragraph 4(a)(iii) 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 names <b10bet.com> and <b10bet1.com> be transferred to the Complainant.
Date: July 4, 2017