WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Cube Limited v. you han fang

Case No. D2017-1683

1. The Parties

The Complainant is Cube Limited, of Douglas, Isle of Man, Overseas Territories of the United Kingdom of Great Britain and Northern Ireland ("United Kingdom"), represented by Farrer & Co., United Kingdom.

The Respondent is you han fang of Shanghai, China, self-represented.

2. The Domain Name and Registrar

The disputed domain name <bet188.com> (the "Disputed Domain Name") is registered with eName Technology Co., Ltd. (the "Registrar").

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on August 31, 2017. On August 31, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On September 1, 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.

On September 4, 2017, the Center sent an email communication to the parties in both Chinese and English regarding the language of the proceeding. On September 7, 2017, the Complainant confirmed its request that English be the language of the proceeding. The Respondent did not expressly comment on the language of the proceeding by the specific due date, but later in its email communication dated September 18, 2017, requested to submit the response in Chinese.

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 September 11, 2017. In accordance with the Rules, paragraph 5, the due date for Response was October 1, 2017. The Response was filed with the Center on September 26, 2017.

The Center appointed Peter J. Dernbach as the sole panelist in this matter on October 9, 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.

The Panel also notes that the Respondent submits that the Disputed Domain Name was registered on February 27, 2007, i.e. prior to the Complainant's trade mark registrations. In this respect, the Panel further notes that the Complainant has submitted that "[t]he 188BET trade mark was first used by the Complainant on its website www.188bet.com in 2005. The 188BET trademark is a prominent and distinctive element of the Complainant's branding and holds significant goodwill since its first use in 2005. As a result, the Complainant has achieved a significant customer base for its services." However, the Panel has not found any documentation of this in the Complaint. Accordingly, the Panel issued the Administrative Panel Procedural Order No.1 on November 3, 2017, inviting the Complainant to submit further arguments and evidence regarding the above, e.g. in the form of use of its website at "www.188bet.com" etc. The Complainant's submissions were to be submitted to the Center by November 8, 2017. The Respondent was then invited to comment on the Complainant's submissions by November 13, 2017. The Complainant submitted evidence regarding the use of 188BET trademark prior to the Respondent's registration of the Disputed Domain Name on November 8, 2017. The Respondent did not reply to or comment on the Complainant's evidence by November 13, 2017.

4. Factual Background

The Complainant operates its business from its website "www.188bet.com", providing consumers with an extensive range of betting products and services under the 188BET trademark. The Complainant is the trademark owner of 188BET, inter alia:

1) 188BET, European Union trademark, Registration No. 008425324 in class 9, 28, 41 & 42, filed on July 14, 2009, registered on March 22, 2010.

2) 188BET, Hong Kong trademark, Registration No. 302702655 in class 9, 28, 41 & 42, registered on August 12, 2013.

According to the Registrar's verification, the Respondent is you han fang. The Disputed Domain Name was registered on February 27, 2007.

5. Preliminary Procedural Issues

A. Language of the Proceeding

Paragraph 11(a) of the Rules provides that "unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the 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 proceeding".

The Rules allow the Panel to determine the language of the proceeding having regard to all the circumstances. In particular, it is established practice to take paragraphs 10(b) and (c) of the Rules into consideration for the purpose of determining the language of the proceeding. In other words, it is important to ensure fairness to the parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes. (Whirlpool Corporation, Whirlpool Properties, Inc. v. Hui'erpu (HK) electrical appliance co. ltd., WIPO Case No. D2008‑0293). The language finally decided by the panel for the proceeding should not be prejudicial to either one of the parties in his or her abilities to articulate the arguments for the case. (Groupe Auchan v. xmxzl, WIPO Case No. DCC2006-0004). WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0") further states: "[P]anels have found that certain scenarios may warrant proceeding in a language other than that of the registration agreement. Such scenarios include (i) evidence showing that the respondent can understand the language of the complaint, (ii) the language/script of the domain name particularly where the same as that of the complainant's mark, (iii) any content on the webpage under the disputed domain name, (iv) prior cases involving the respondent in a particular language, (v) prior correspondence between the parties, (vi) potential unfairness or unwarranted delay in ordering the complainant to translate the complaint, (vii) evidence of other respondent-controlled domain names registered, used, or corresponding to a particular language, (viii) in cases involving multiple domain names, the use of a particular language agreement for some (but not all) of the disputed domain names, (ix) currencies accepted on the webpage under the disputed domain name, or (x) other indicia tending to show that it would not be unfair to proceed in a language other than that of the registration agreement." (See section 4.5 of WIPO Overview 3.0).

The Complainant requests the language of the proceeding to be English. The Registration Agreement for the Disputed Domain Name is in Chinese. The Respondent and the Registrar are located in China. However, given the following factors, the Panel decides that the language of the proceeding shall be English.

1) The first three emails from the Respondent to the Center were drafted in English.

2) The Center wrote to both Parties regarding the language of proceeding on September 4, 2017 and requested the Respondent to provide any comments on the Complainant's submission by September 9, 2017. The Respondent did not raise an objection to the Complainant's request for English being the language of the proceeding. The Respondent did not argue that he cannot understand the Complainant's Complaint that was drafted in English and submitted his Response within the due date given by the Center.

Given these facts, the Panel finds that it is more likely than not that the Respondent has sufficient familiarity with English. Therefore, in consideration of the above circumstances and in the interest of fairness to both Parties, the Panel decides, under paragraph 11 of the Rules, that (i) English shall be the language of the proceeding in this case, but (ii) in the interest of providing both Parties with a fair and expeditious resolution of this domain name dispute, the Panel also accepts the Respondent's Chinese Response and evidential materials without requiring an English translation thereof.

B. Complainant's Supplemental Filings

"Paragraph 10 of the UDRP Rules vests the panel with the authority to determine the admissibility, relevance, materiality and weight of the evidence, and also to conduct the proceedings with due expedition. Paragraph 12 of the UDRP Rules expressly provides that it is for the panel to request, in its sole discretion, any further statements or documents from the parties it may deem necessary to decide the case. Unsolicited supplemental filings are generally discouraged, unless specifically requested by the panel…. [P]anels have repeatedly affirmed that the party submitting or requesting to submit an unsolicited supplemental filing should clearly show its relevance to the case and why it was unable to provide the information contained therein in its complaint or response (e.g., owing to some "exceptional" circumstance)." (See section 4.6 of WIPO Overview 3.0)

After receiving the Response, the Complainant submitted its unsolicited supplemental filing on September 29, 2017. The Complainant does not clearly show any exceptional circumstance where the Complainant was unable to provide the information contained therein in its Complaint. Therefore, the Panel decides not to accept the Complainant's supplemental filings.

6. Parties' Contentions

A. Complainant

The Complainant's contentions could be summarized as follows:

(i) The Disputed Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.

The Disputed Domain Name incorporates the Complainant's 188BET trademark in its entirety, and merely switches the order of "bet" and "188", which is a form of typosquatting. The distinctive elements of the Disputed Domain Name are the word "bet" and the numerals "188" and when put together make up the Complainant's 188BET trademark. Thus, the Disputed Domain Name is confusingly similar to the 188BET trademark.

(ii) The Respondent has no rights or legitimate interests in respect of the Disputed Domain Name.

The Respondent has no license or other permission (express or implied) from the Complainant to use any of the 188BET trademarks, logos or branding. The Complainant has used 188BET trademarks since 2005. By contrast, the Disputed Domain Name was registered by the Respondent some years after the Complainant first used its 188BET trademarks.

The website accessible from the Disputed Domain Name does not direct Internet traffic to the Complainant's website, but to registration pages for counterfeit services. The Respondent is not using the Disputed Domain Name in connection with a bona fide offering of goods or services. The Respondent is not commonly known by the Disputed Domain Name. Thus, the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name.

(iii) The Disputed Domain Name has been registered and is being used in bad faith.

The Complainant has a long established reputation in the use of 188BET trademarks since 2005. The registration of the Disputed Domain Name by the Respondent occurred some years after the Complainant first commenced its use of 188BET trademarks. Given the Complainant's significant global reputation in the 188BET trademarks, the Respondent knew of the Complainant's 188BET trademarks when registering the Disputed Domain Name. Meanwhile, the Respondent is using the Disputed Domain Name to attempt to attract, for commercial gain, consumers by creating a likelihood of confusion with the Complainant's 188BET trademark, as to the source, sponsorship, affiliation or endorsement of the Respondent's website and the counterfeit services accessible from the website.

B. Respondent

The Respondent's contentions could be summarized as follows:

(i) The Disputed Domain Name is not identical or confusingly similar to a trademark or service mark in which the Complainant has rights.

The Disputed Domain Name incorporates generic word and numbers, "bet" and "188". The Disputed Domain Name was registered in 2007 which is prior to the trademark application dates of the Complainant's 188BET trademarks. The use evidence of 188BET trademark submitted by the Complainant appears to be either after the registration date of the Disputed Domain Name or without clear dates.

(ii) The Respondent has rights or legitimate interests in respect of the Disputed Domain Name.

The Respondent is using generic words "bet" and "188" to describe its product/business without intending to take advantage of the Complainant's rights in such words. The Respondent legally uses the Disputed Domain Name without intent for commercial gain.

(iii) The Disputed Domain Name has not been registered and is not being used in bad faith.

The Disputed Domain Name directed to a website in 2004, which is prior to the earliest application date for any of the Complainant's 188BET trademarks. There is no evidence to establish that the Respondent intends to sell the Disputed Domain Name to the Complainant or its competitors for valuable consideration in excess its documented out-of-pocket costs directly related to the Disputed Domain Name. Thus, the Disputed Domain Name was not registered and is not being used in bad faith.

7. Discussion and Findings

A. Identical or Confusingly Similar

Paragraph 4(a)(i) of the Policy provides that "[a domain-name holder] is required to submit to a mandatory administrative proceeding in the event that [a complainant] asserts to the applicable [administrative-dispute-resolution service providers], in compliance with the Rules of Procedure, that (i) [the disputed domain name] is identical or confusingly similar to a trademark or service mark in which the complainant has rights[.]"

"The standing (or threshold) test for confusing similarity involves a reasoned but relatively straightforward comparison between the complainant's trademark and the disputed domain name. This test typically involves a side-by-side comparison of the domain name and the textual components of the relevant trademark to assess whether the mark is recognizable within the disputed domain name.… In some cases, such assessment may also entail a more holistic aural or phonetic comparison of the complainant's trademark and the disputed domain name to ascertain confusing similarity." (See section 1.7 of WIPO Overview 3.0)

The Complainant has established that it is the owner of the 188BET trademarks.

The Disputed Domain Name, <bet188.com>, incorporates the 188BET trademark in its entirety, but switches the sequence of "188" string in front of "bet". The only distinctive parts of the Disputed Domain Names are still the "bet" and "188" elements.

It is well-established that in considering whether a disputed domain name is identical or confusingly similar to a registered trademark, the Top-Level Domain (for example, ".com" and ".net") may be disregarded. (GA Modefine SA v. Yonghui Huang, WIPO Case No. D2008-0355; Sony Kabushiki Kaisha (also trading as Sony Corporation) v. Inja, Kil, WIPO Case No. D2000-1409; Florida Department of Management Services v. Anthony Gorss (or AGCS), WIPO Case No. D2009‑1194).

The Panel concludes that the Disputed Domain Name is identical or confusingly similar to the Complainant's 188BET trademarks. The condition of paragraph 4(a)(i) of the Policy has been fulfilled.

B. Rights or Legitimate Interests

Paragraph 4(a)(ii) of the Policy provides that "[a domain-name holder] is required to submit to a mandatory administrative proceeding in the event that [a complainant] asserts to the applicable [administrative-dispute-resolution service provider], in compliance with the Rules of Procedure, that […] (ii) [the respondent has] no rights or legitimate interests in respect of the [disputed] domain name[.]"

Paragraph 4(c) of the Policy sets out the following several circumstances which, without limitation, if found by the Panel, shall demonstrate that the Respondent has rights to, or legitimate interests in, a disputed domain name, for the purposes of paragraph 4(a)(ii) of the Policy:

(i) before any notice to [the Respondent] of the dispute, [the Respondent's] use of, or demonstrable preparations to use, the [disputed] domain name or a name corresponding to the [disputed] domain name in connection with a bona fide offering of goods or services; or

(ii) [the Respondent] (as an individual, business, or other organization) [has] been commonly known by the [disputed] domain name, even if [the Respondent has] acquired no trademark or service mark rights; or

(iii) [the Respondent is] making a legitimate noncommercial or fair use of the [disputed] domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

The consensus view of UDRP panels on the burden of proof under paragraph 4(a)(ii) of the Policy, is summarized in section 2.1 of WIPO Overview 3.0, whereby:

"[…] While the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of "proving a negative", requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element."

The Complainant has established that it is the owner of the 188BET trademark and claims that the Respondent is not connected with nor affiliated to the Complainant nor is the Respondent authorized to use the 188BET trademark to register the Disputed Domain Name.

No record in the WhoIs database indicates that the name of the Respondent is "bet188" or it is commonly known by that name. The Respondent uses the Disputed Domain Name to attract Internet traffic to create new membership with its "www.bet188.com" website, switching the sequence of the terms "bet"and "188" included in the Complainant's trademark, and thus is not making a legitimate noncommercial or fair use of the Disputed Domain Name.

The Panel finds that the Complainant has made out a prima facie case that the Respondent lacks rights or legitimate interests in the Disputed Domain Name. The burden of production shifts to the Respondent to come forward with appropriate evidence demonstrating rights or legitimate interests in the Disputed Domain Name.

The Respondent argued that the Disputed Domain Name is registered in generic word "bet" and numbers "188" and thus not using the Complainant's 188BET trademark.

"Panels have recognized that merely registering a domain name comprised of a dictionary word or phrase does not by itself automatically confer rights or legitimate interests on the respondent; panels have held that mere arguments that a domain name corresponds to a dictionary term/phrase will not necessarily suffice. In order to find rights or legitimate interests in a domain name based on its dictionary meaning, the domain name should be genuinely used, or at least demonstrably intended for such use, in connection with the relied-upon dictionary meaning and not to trade off third-party trademark rights." (section 2.10.1 of WIPO Overview 3.0)

The screenshots of the website to which the Disputed Domain Name directs show that the Respondent uses the term "bet188" which is confusingly similar to the Complainant's 188BET trademark to attract Internet users to register membership with the Respondent's website. The Respondent appears to be riding on the goodwill of the Complainant. Therefore, the Respondent does not have legitimate interests or rights in the Disputed Domain Name.

Having considered the above, the Panel finds that the Complainant has satisfied paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

Paragraph 4(a)(iii) of the Policy provides that "[a domain-name holder] is required to submit to a mandatory administrative proceeding in the event that [a complainant] asserts to the applicable [administrative-dispute-resolution service provider], in compliance with the Rules of Procedure, that […] (iii) [the respondent's] domain name has been registered and is being used in bad faith."

Paragraph 4(b) of the Policy explicitly states, in relevant part, that "the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:

(iv) by using the domain name, [the respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [the respondent's] web site or location or of a product or service on [the respondent's] web site or location."

The Respondent uses the term "bet188", which is confusingly similar to the Complainant's 188BET trademark on the website to which the Disputed Domain Name directs to attract Internet users to registered membership with the Respondent's website. The Respondent confusingly employed the Complainant's 188BET trademark in the Disputed Domain Name to attract Internet users to the Respondent's commercial website, where the Respondent provides lottery and gaming services, evidently for commercial gain. The Panel finds that the Respondent uses the Disputed Domain Name in bad faith and the fact that the website under the Disputed Domain Name currently is inactive does not change this fact.

"The applicable standard of proof in UDRP cases is the "balance of probabilities" or "preponderance of the evidence"; some panels have also expressed this as an "on balance" standard. Under this standard, a party should demonstrate to a panel's satisfaction that it is more likely than not that a claimed fact is true. (section 4.2 of WIPO Overview 3.0)

The Panel notes that the Disputed Domain Name was registered by the Respondent two years prior to the Complainant's registration of 188BET trademarks. However, according to the screenshots of the Complainant's websites under <188bet.com>, the Complainant has used its 188BET trademarks on its websites under <188bet.com> since 2006, prior to the Respondent's registration of the Disputed Domain Name.

Meanwhile, the Panel notes that the Disputed Domain Name consists of the Complainant's 188BET trademark in its entirety and only switches the sequence of "188" and "bet". The Respondent used the Disputed Domain Name to attract Internet uses to registered membership with the Respondent's website and provide lottery and gaming services by creating a likelihood of confusion between its website and the Complainant's 188BET trademarks. Therefore, considering these factors and the entirety of the evidence presented to the Panel, the Panel finds that it is more likely than not that the Respondent registered the Disputed Domain Name in bad faith.

Having considered the above, the Panel finds that the Disputed Domain Name has been registered and is being used in bad faith, and thus the Complainant fulfills the condition provided in paragraph 4(a)(iii) of the Policy.

7. Decision

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, <bet188.com> be transferred to the Complainant.

Peter J. Dernbach
Sole Panelist
Date: November 16, 2017