WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Supercell Oy v. Reza Zarif
Case No. D2018-0503
1. The Parties
Complainant is Supercell Oy of Helsinki, Finland, represented by Roschier Brands, Attorneys Ltd., Finland.
Respondent is Reza Zarif of Gosport, United Kingdom of Great Britain and Northern Ireland (“United Kingdom”).
2. The Domain Name and Registrar
The disputed domain name <clashsell.com> is registered with CSL Computer Service Langenbach GmbH dba Joker.com (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 6, 2018. On March 6, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 7, 2018, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details.
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on March 20, 2018. In accordance with the Rules, paragraph 5, the due date for Response was April 9, 2018. Respondent sent an email communication to the Center on March 8 and on March 13, 2018. Respondent did not submit any formal response. The Center notified the Parties of the commencement of the panel appointment process on April 10, 2018.
The Center appointed Lawrence K. Nodine as the sole panelist in this matter on April 20, 2018. 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
Complainant, a creator of mobile games, offers the games Clash of Clans and Clash Royale over the Internet. The game Clash of Clans was released online in 2012, and Complainant owns trademark registrations in the European Union (e.g., No. 011158086; registered on December 18, 2012) and in the United States (e.g., No. 4327980; registered on April 30, 2013) for CLASH OF CLANS. As of March 2016, Complainant’s games have attracted 100 million daily players, with Clash of Clans and Clash Royale garnering the majority of those players. In 2016, with four games in the online games market, Complainant realized USD 2.3 billion in revenue.
Respondent, a resident of the United Kingdom, registered the disputed domain name <clashsell.com> on March 11, 2017. The disputed domain name resolves to a website facilitating the “[s]ale and purchase of clash of clans account” and prominently featuring the heading “Clan Sell” with an image of the dragon from Clash of Clans as well as images of the “villages” and accompanying game interface in the Clash of Clans game.
5. Parties’ Contentions
According to Complainant, the disputed domain name is confusingly similar to Complainant’s registered CLASH OF CLANS mark because the disputed domain name incorporates the distinctive element “CLASH.” Complainant argues that the inclusion of “sell” in the disputed domain name does not impart any distinctiveness to avoid the likelihood of confusion because “sell” is a descriptive term and is being used in its descriptive sense to denote a portal for selling CLASH OF CLANS game accounts. Complainant asserts that the likelihood of confusion is exacerbated by the fact that the public often refers to the game as “Clash.”
Complainant argues that Respondent lacks rights or legitimate interests in the disputed domain name because Respondent has not registered the disputed domain name as a trademark, Complainant has not licensed Respondent to use any part of its CLASH OF CLANS mark, and Respondent is using the disputed domain name in bad faith and for an illegitimate commercial purpose. Specifically, Complainant maintains that selling and facilitating the sales of the CLASH OF CLANS game accounts are against the Terms of Services applicable to users of the CLASH OF CLANS game.
To establish bad faith registration and use of the disputed domain name, Complainant asserts that Respondent registered the disputed domain name to disrupt Complainant’s business with regard to its CLASH OF CLANS game. Complainant argues that Respondent is aware of Complainant’s trademarks and the limitations that the Terms of Service places on the license for the CLASH OF CLANS game but has nevertheless engaged in a practice that enables users to violate Complainant’s Terms of Service and results in the disruption of Complainant’s business as Complainant, in enforcing its Terms of Service, is forced to ban users of Respondent’s website or terminate their license for use. Moreover, Complainant alleges that Respondent’s use of the disputed domain name causes commercial harm to Complainant and has at least the potential of providing a commercial gain to Respondent.
While Respondent sent email inquiries to the Center, Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Panel finds that the disputed domain name <clashsell.com> is confusingly similar to the mark CLASH OF CLANS in which Complainant has rights. Although the disputed domain name does not include the CLANS element of the mark, the content of the associated website confirms Respondent’s intent to create a likelihood of confusion with Complainant’s mark and, thus, informs the Panel’s finding of confusing similarity. Although “[t]he content of the website associated with the domain name is usually disregarded by panels when assessing confusing similarity,” [i]n some instances, panels have taken note of the content of the website to confirm confusing similarity whereby it appears prima facie that the respondent seeks to target a trademark through the disputed domain name.” WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.15. See, e.g., Supercell Oy v. Ali Negahban Fard, WIPO Case No. D2017-0342 (<clash-sell.com>, transferred; confusing similarity of <clash-sell.com> to CLASH OF CLANS reinforced by the fact that “people seeing the Respondent’s website might incorrectly assume that there is some connection with the Complainant”); Bayerische Motoren Werke AG (“BMW”) v. Registration Private, Domains By Proxy, LLC / Armands Piebalgs, WIPO Case No. D2017-0156 (<bmdecoder.com> and <bmwdecoder.com>, transferred; <bmdecoder.com> held to be confusingly similar to BMW because, although the BMW mark “is not present in its entirety [in <bmdecoder.com>], the content at the corresponding website serves to affirm a finding of confusing similarity”); VF Corporation v. Vogt Debra, WIPO Case No. D2016-2650 (<eastpake.com> and <bagpakonline.com>, transferred; <bagpakonline.com> held to be confusingly similar to EASTPAK because the PAK element is recognizable and the associated website “display[s] the Complainant’s EASTPAK logo and products bearing the EASTPAK mark”).
While not directly applicable for purposes of the Policy, elements of trademark law are useful in assessing whether the disputed domain name is confusingly similar to Complainant’s trademark. Rules, paragraph 15(a). In particular, Respondent’s admitted intent is relevant. Thomas J. McCarthy, McCarthy on Trademarks and Unfair Competition § 23:110 (5th ed. 2017). Here, it is indisputable that Respondent intended Internet users to understand the “clash” component of its domain name as an explicit reference to the well-known CLASH OF CLANS trademark and game. The website associated with the disputed domain name expressly references CLASH OF CLANS, incorporates copyrighted images associated with the game, and the explicitly stated purpose of the website is to facilitate the “[s]ale and purchase of clash of clans account[s].” Through the use of CLASH in the disputed domain name, Respondent intends to invoke Complainant’s CLASH OF CLANS trademark in the minds of users. Respondent’s website shows that he intended that the domain name to be understood as a shorthand reference to Complainant’s mark.
Considered in conjunction with Respondent’s website, which trades off on Complainant’s mark, the disputed domain name is confusingly similar to Complainant’s mark. And the inclusion of the descriptive term “sell”—here describing the website selling CLASH OF CLANS accounts— does not dispel the potential for confusion. See VF Corporation v. Vogt Debra, WIPO Case No. D2016-2650 (inclusion of the descriptive terms “bag” and “online” does not negate a finding of confusing similarity).
B. Rights or Legitimate Interests
Complainant has presented a prima facie case for Respondent’s lack of rights or legitimate interests in the disputed domain name, which Respondent has failed to rebut. Specifically, Complainant alleges that Respondent’s use of the disputed domain name to facilitate the sale of CLASH OF CLANS game accounts violates the Terms of Service under which the accounts are created. Such use of the disputed domain name is not bona fide. Respondent has failed to respond and offer evidence in rebuttal to Complainant’s claim.
Accordingly, the Panel finds that Complainant has satisfied paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
The Panel finds that Respondent registered and used the disputed domain name in bad faith. Considering the content and the purpose of the website associated with the disputed domain name, it is clear that Respondent registered the disputed domain name to trade off on Complaint’s mark and the associated goodwill. Moreover, Respondent’s use of Complainant’s copyrighted images (e.g., the dragon, the “villages” and the game interface) and Complainant’s unrebutted allegation that Respondent’s use of the disputed domain name to facilitate the violation of Complainant’s Terms of Service supports a finding of bad faith. See Supercell Oy v. WhoisGuard Protected, WhoisGuard, Inc. / Giacinto Napolitani, WIPO Case No. D2017-2064 (<clashoflightsapp.com>, transferred). See also Supercell Oy v. Ali Negahban Fard, WIPO Case No. D2017-0342 (finding bad faith where “the website at the disputed domain name appears to be targeted quite blatantly at selling CLASH OF CLANS user accounts without the Complainant’s authority”).
In sum, Complainant has satisfied 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 name <clashsell.com> be transferred to Complainant.
Lawrence K. Nodine
Date: May 11, 2018