WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Navasard Limited v. WhoisGuard Protected, WhoisGuard, Inc. / Cosmin Cremen
Case No. D2017-1994
1. The Parties
The Complainant is Navasard Limited of Limassol, Cyprus, represented by Giorgos Landas LLC, Cyprus.
The Respondent is WhoisGuard Protected, WhoisGuard, Inc. of Panama / Cosmin Cremen of Barcelona, Spain.
2. The Domain Name and Registrar
The disputed domain name <1xbet.ltd> is registered with NameCheap, Inc. (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on October 12, 2017. On October 12, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 12, 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 October 17, 2017, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint.
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 November 1, 2017. In accordance with the Rules, paragraph 5, the due date for Response was November 21, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on November 22, 2017.
The Center appointed Alessandra Ferreri as the sole panelist in this matter on November 27, 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 the owner of European Union ("EU") trademark registrations for 1XBET, used for sports betting. In particular, the Complainant owns the EU trademark registration No. 013914254 in classes 35, 41, and 42 registered on July 27, 2015 and the EU trademark registration No. 014227681 in classes 35, 41, and 42 registered on September 21, 2015 (Annexes 2.1 and 2.2 to the Complaint).
The trademark 1XBET was licensed by the Complainant to many affiliated companies which have registered and are operating through several domain names incorporating the trademark, e.g., <1-x-bet.com>, <1x-bet.com>, and <1xbet.com> (Annex 2.3 and 2.4 to the Complaint).
The disputed domain name <1xbet.ltd> was registered on June 3, 2017, and currently leads to a site which is generally lacking content, but includes references to the mark 1XBET and uses colours and logo identical to those used on the Complainant's website.
5. Parties' Contentions
The Complainant made the following submissions in the Complaint.
The Complainant is Navasard Limited, a company founded in 2015; the Complainant is the owner of the trademarks used for the sports betting brand 1XBET, which is one of the most recognized online sports betting brands in the region of eastern Europe. Before the incorporation of the Complainant, the brand name "1XBET" was a common law trademark held by the predecessors of the Complainant.
The Complainant states that the use of the logo and the word mark 1XBET on the disputed domain name is made without any authorization or consent by the Complainant.
The Complainant argues that the disputed domain name is identical to the alphanumeric string of the trademark number No. 014227681, before the suffix ".ltd".
The Complainant contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name, for the following reasons:
(i) The Respondent does not intend to make any legitimate use of the disputed domain name and there is no actual offering of goods and services;
(ii) The Respondent is not operating in the field of online sports betting, but rather appears that it is trying to mislead visitors;
(iii) The Respondent is not making fair use of the disputed domain name.
Indeed, the Respondent is illegally using the disputed domain name for purposes to mislead visitors by taking advantage from the confusing similarity of the disputed domain name with the popular sports betting trademark held by the Complainant. Furthermore the Complainant is prevented from registering the disputed domain name corresponding to its trademark in the ".ltd" generic Top-Level Domain ("gTLD").
The Complainant contends that the disputed domain name was registered and is being used by the Respondent in bad faith.
In particular, the Complainant states that, according to several previous UDRP decisions, the apparent lack of active use of the disputed domain name, without any active attempt to sell or to contact the trademark holder (passive holding), does not prevent a finding of bad faith.
Finally, the Complainant argues that on the website to which the disputed domain name resolves, there is a search button titled "1XBET.Portugal- Casa de Apostas Desportivas Online" which in the Complainant's opinion reveals the Respondent's intention to make its website active in the future.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
The Panel notes that the disputed domain name was registered using a privacy service, and that the Registrar disclosed the contact details of an underlying registrant. The Panel further notes that the Complaint was correctly notified to both the privacy service and the underlying registrant. Notwithstanding the Complainant's failure to file an amendment to the Complaint when informed of the identity of the underlying registrant, the Panel determines, in accordance with its general powers under paragraph 10(a) of the Rules, that the Respondent is properly identified as "Cosmin Cremen", and that the Panel's findings are to be considered as relating to that underlying registrant.
Pursuant to paragraph 4(a) of the Policy, the Complainant must prove each of the following three elements:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Panel finds that the disputed domain name <1xbet.ltd> is identical to the Complainant's trademark 1XBET; the only difference is the adjunction of the suffix ".ltd".
With regards to the gTLD suffix ".ltd", the Panel notes that it is typically disregarded under the confusing similarity test according to previous UDRP decisions (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"), section 1.11).
Therefore, the Panel finds that the Complainant has satisfied the first element of the Policy.
B. Rights or Legitimate Interests
The Respondent did not reply to the Complainant's contentions. For that reason, the Panel has taken careful note of the factual assertions that have been made and supported by evidence by the Complainant.
In particular, the Respondent has failed to offer the Panel any of the types of evidence set forth in paragraph 4(c) of the Policy from which the Panel might conclude that the Respondent has rights or legitimate interests in the disputed domain name, such as:
(i) use or preparation 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 prior to notice of the dispute; or
(ii) being commonly known by the disputed domain name (as an individual, business or other organization) even if the Respondent has not acquired any trademark or service mark rights; or
(iii) making 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.
There is no evidence in the record that the Respondent has any rights or legitimate interests in the disputed domain name.
There is no evidence of the Respondent's use, or demonstrable preparation to use, the disputed domain name in connection with a bona fide offering of goods.
The Respondent has not been and is not commonly known by the disputed domain name nor has the Respondent acquired any trademark or service mark rights in it. The Respondent's name does not coincide with the disputed domain name.
The Complainant states that the Respondent is not linked to the Complainant in any way or authorized by the Complainant to register the disputed domain name <1xbet.ltd> or to use the trade mark 1XBET in any other manner.
Since the Respondent has no permission from the Complainant, the Panel finds that based on the available evidence, the Respondent's use of the disputed domain name is without rights or legitimate interests.
Finally, given the circumstances of this case, the Panel finds that the Respondent's lack of rights or legitimate interests in the disputed domain name may also be inferred by the fact that no response was filed by the Respondent. According to earlier UDRP decisions "non-response is indicative of a lack of interests inconsistent with an attitude of ownership and a belief in the lawfulness of one's own rights" (see Pomellato S.p.A. v. Richard Tonetti, WIPO Case No. D2000-0493; GA Modefine S.A. and Giorgio Armani S.p.A. v. Yoon-Min Yang, WIPO Case No. D2005-0090).
Therefore, based on the evidence, the Panel is satisfied that the second element of the Policy is met.
C. Registered and Used in Bad Faith
The Panel finds that the disputed domain name was registered and is being used in bad faith.
Under paragraph 4(b) of the Policy, evidence of bad faith registration and use include:
(i) circumstances indicating the domain name was registered or acquired primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the owner of a trademark or to a competitor of the trademark owner, for valuable consideration in excess of the documented out-of-pocket costs directly related to the domain name; or
(ii) circumstances indicating that the domain name was registered in order to prevent the owner of a trademark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or
(iii) circumstances indicating that the domain name was registered primarily for the purpose of disrupting the business of a competitor; or
(iv) circumstances indicating that the domain name has intentionally been used in an attempted to attract, for commercial gain, Internet users to a website or other online location, by creating a likelihood of confusion with a trademark as to the source, sponsorship, affiliation, or endorsement of the website or location or of a product or service on a website or location.
In light of the evidence submitted by the Complainant, the Complainant's registered 1XBET trademark predates the registration of the disputed domain name <1xbet.ltd>. Moreover the 1XBET trademark is registered in the Trademark Clearinghouse.
In the Panel's belief, the Respondent must have known about the Complainant's existence and rights at the time of the registration of the disputed domain name.
Furthermore, the website to which the disputed domain name resolves reproduces the Complainant's 1XBET trademark, as well as an image and colours identical to those used on the Complainant's website.
The Respondent does not provide, nor is it apparent to the Panel, any reason why the disputed domain name was registered or acquired other than by reference to the Complainant. The registration of the disputed domain name in awareness of the Complainant's activities and rights, in the absence of rights or legitimate interests, amounts to registration in bad faith.
Concerning the use of the disputed domain name, as just mentioned above, the Complainant has shown that the disputed domain name leads to a website which features the trade mark 1XBET and uses colours and logo identical to those operated under the brand and trademark of the Complainant (see Annex 3.1 to the Complaint). Moreover on said website the following search button exists: "1XBET.Portugal-Casa de Apostas Desportivas Online" (see annex 3.1b to the Complaint), that in English means "1XBET.Portugal-Online Sports Betting House".
Considering the above mentioned circumstances, the Panel believes that by such use the Respondent intentionally attempted to attract Internet users, expecting to reach the website corresponding to the Complainant's services and to obtain information about the Complainant's activity to its own website, by creating a likelihood of confusion with the Complainant's trademark as to the source, sponsorship, affiliation, or endorsement of the website or of a product or service on a website. While the website at the disputed domain name essentially lacks content, and is not inherently commercial in nature, the Panel finds that the depiction of the Complainant's trademark on the website clearly evidences targeting of the Complainant, and creates a misleading impression that the website is operated by the Complainant. In the absence of any reply from the Respondent, the Panel is unable to conceive of any legitimate use to which the disputed domain name could be put that would not have the effect of illegitimately interfering with or taking advantage of the Complainant's trademark rights.
Finally, as referred to by the Complainant, the Respondent did not reply to the Complainant's cease-and-desist letter of June 14, 2017. In accordance with previous UDRP decisions, this Panel also finds that "the failure of the Respondent to respond to the letter of demand from the Complainant further supports an inference of bad faith" (see RRI Financial, Inc., v. Ray Chen, WIPO Case No. D2001-1242; Bayerische Motoren Werke AG v. (This Domain is For Sale) Joshuathan Investments, Inc, WIPO Case No. D2002-0787; News Group Newspapers Ltd and News Network Ltd v. Momm Amed Ia, WIPO Case No. D2000-1623; Nike, Inc. v. Azumano Travel, WIPO Case No. D2000-1598).
In light of all the above circumstances, the Panel is satisfied that the third element is met and that the disputed domain name <1xbet.ltd> was registered and is being used in bad faith.
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, <1xbet.ltd>, be transferred to the Complainant.
Date: December 11, 2017