WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
BML Group Limited v. On behalf of betson.casino owner, c/o whoisproxy.com / Internet Elephant
Case No. D2017-1668
1. The Parties
The Complainant is BML Group Limited of Ta Xbiex, Malta, represented by SILKA Law AB, Sweden.
The Respondent is On behalf of betson.casino owner, c/o whoisproxy.com of Alexandria Virginia, United States of America (“US”) / Internet Elephant of Leigh On Sea, Germany.
2. The Domain Name and Registrar
The disputed domain name <betson.casino> is registered with Key-Systems GmbH dba domaindiscount24.com (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 29, 2017. On August 29, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 30, 2017, and September 6, 2017, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on September 6, 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 amendment to the Complaint on September 8, 2017.
The Center verified that the Complaint together with the amendment to 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 September 12, 2017. In accordance with the Rules, paragraph 5, the due date for Response was October 2, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 3, 2017.
The Center appointed Knud Wallberg as the sole panelist in this matter on October 16, 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.
After having reviewed the submissions from the Parties in this case, and pursuant to paragraphs 10 and 12 of the UDRP Rules, the Panel issued the following order on November 1, 2017:
“The Panel notes that the Complainant, under section VI of the Complaint, refers to the domain name <betson.online>, which is not part of this proceeding. In this regard, the Panel requests that the Complainant provide further clarifications or corrections of the Complaint, as to what domain name is being referenced.”
The Complainant submitted the above-requested clarifications on November 1, 2017. The Respondent was afforded seven (7) calendar days to respond thereto, but the Respondent did not file a Response.
4. Factual Background
The Complainant is a limited liability company established in Malta, which runs a gaming site under the name BETSSON at “www.betsson.com”, where a wide range of online gambling products and games are provided. The Complainant is today one of the leading suppliers of online gaming products worldwide, with over 450,000 customers from over 100 different countries.
The Complainant holds a number of trademark registrations of the mark BETSSON including European Union registration 006517056 registered on September 30, 2008.
The disputed domain name was registered on June 6, 2015. The disputed domain name currently resolves to a website, which contains reviews of and links to various gambling and betting sites.
5. Parties’ Contentions
The Complainant alleges that the disputed domain name is confusingly similar to the BETSSON Mark because the disputed domain name contains the BETSSON mark in its entirety, except for omission of one of the letters "s" in the middle. The generic Top-Level Domain (gTLD) suffix has in general no capacity to dispel confusing similarity between the disputed domain name and the Complainants mark. If anything, the addition of the gTLD suffix “.casino” in this case may increase the association with the Complainant’s trademark.
The Respondent has neither received a license or consent from the Complainant to use the trademarks in a domain name or in any other manner, nor has the Complainant acquiesced in any way to such use or application of the trademarks by the Respondent. Further, the Complainant asserts that the Respondent is neither commonly known by the name “betson” nor by the disputed domain name and that the Complainant’s trademark was registered long before the disputed domain name.
Since the Complainant’s trademark registrations of the BETSSON mark predates the registration of the disputed domain name, the Complainant alleges that it seems unlikely that the Respondent was not aware of the trademark and of the unlawful nature of the domain name registration. Moreover, the disputed domain name was registered merely one year after the Complainant registered the domain name <betsson.casino>, which is nearly identical to the disputed domain name.
The Complainant further assert, that the disputed domain name is intentionally used by the Respondent to attract visitors for its own commercial gain to the website on which the Respondent offers the Complainant’s games as well as games from competitors of the Complainant.
Finally, the Complainant sent a cease and desist email to the Respondent on February 16, 2017. The Respondent did not reply to the email, and the Complainant asserts that the failure of a respondent to respond to a cease and desist letter, or a similar attempt at contact, shall be considered relevant in a finding of bad faith under the UDRP.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 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.
Paragraph 4(a) of the Policy directs that a complainant must prove each of the following:
(i) that the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights;
(ii) that the respondent has no rights or legitimate interests in respect of the domain name; and
(iii) that the domain name has been registered and is being used in bad faith.
Paragraph 4(a) of the Policy states that the burden of proving that all these elements are present lies with the Complainant. At the same time, in accordance with paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules, or any request from the Panel, the Panel shall draw such inferences therefrom as it considers appropriate.
A. Identical or Confusingly Similar
The Panel finds that the disputed domain name <betson.casino> is confusingly similar to the Complainant’s registered trademark BETSSON since it incorporates the said registration in full with the omission of a letter “s”. The gTLD “.casino” does not dispel a finding of confusing similarity and may be disregarded under the first element confusing similarity test, see section 1.11 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).
The Panel finds that the conditions of paragraph 4(a)(i) of the Policy are therefore fulfilled in relation to the disputed domain name.
B. Rights or Legitimate Interests
It is clear from the facts of the case that the Complainant has not licensed or otherwise permitted the Respondent to use its trademark.
Given the circumstances of this case, and the way that the Respondent has been and is using the disputed domain name, the Panel finds that the Complainant has established that the Respondent has no rights or legitimate interests in the disputed domain name. In addition, the Respondent has not produced, and there is no other immediate evidence present of the types of circumstances set out in paragraph 4(c) of the Policy that might give rise to rights or legitimate interests in the disputed domain name on the part of the Respondent in these proceedings.
Consequently, the Panel finds that the conditions in paragraph 4(a)(ii) of the Policy are also fulfilled.
C. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy requires the Complainant to prove both registration and use of the disputed domain name in bad faith. Paragraph 4(b) of the Policy provides examples of circumstances which shall be evidence of registration and use in bad faith:
(i) circumstances indicating that the Respondent has registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of the Respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) the Respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the Respondent has engaged in a pattern of such conduct; or
(iii) the Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other 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 or location or of a product or service on the Respondent’s website or location.
Accordingly, for the Complainant to succeed, the Panel must be satisfied that the disputed domain name has been registered and is being used in bad faith.
Given the circumstances of the case and in particular the evidence on record of the intensive use of the Complainant’s trademark BETSSON within gambling, and the lack of any explanation from the Respondent as to why it registered the disputed domain name, it is inconceivable to the Panel in the current circumstances that the Respondent registered the disputed domain name without prior knowledge of the Complainant and the Complainant’s marks.
Further, the Panel finds that the content of the website under the disputed domain name clearly indicates that the Respondent was aware of the fact that the registration of the disputed domain name in a gTLD that reflects the area of business of the Complainant, namely “.casino”, could attract Internet users in a manner that is likely to create confusion for such users (See section 1.11.2 of the WIPO Overview 3.0 and the UDRP decisions that are cited therein).
The Panel therefore finds that the disputed domain name was registered in bad faith.
Also, the Respondent is using the disputed domain name actively for a website, which contains reviews of and commercial links to several different providers of online gambling and betting. The providers include the Complainant but also competitors of the Complainant. The Respondent thus intentionally attempts to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its website. The Panel therefore finds that the Respondent is using the disputed domain name in bad faith.
Noting that the disputed domain name incorporates a registered and well-known trademark, that the disputed domain name is used misleadingly for commercial gain, and considering all the facts and evidence, the Panel therefore finds that the requirements of paragraph 4(a)(iii) and 4(b) of the Policy are also fulfilled in this case.
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 <betson.casino> be transferred to the Complainant.
Date: November 13, 2017