WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Realm Entertainment Limited v. Registration Private, Domains By Proxy, LLC / Resul Kesfeden
Case No. D2018-1080
1. The Parties
1.1 The Complainant is Realm Entertainment Limited of Ta' Xbiex, Malta, represented by Ports Group AB, Sweden.
1.2 The Respondent is Registration Private, Domains By Proxy, LLC of Scottsdale, Arizona, United States of America ("United States") / Resul Kesfeden of Girne, Turkey.
2. The Domain Name and Registrar
2.1 The disputed domain name <bets100.xyz> (the "Domain Name") is registered with GoDaddy.com, LLC (the "Registrar").
3. Procedural History
3.1 The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on May 15, 2018. As at or prior to that date, a search of the publically available WhoIs database for the Domain Name would have displayed details of the "privacy service" of the Registrar. On May 15, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On May 16, 2018, the Registrar transmitted by email to the Center its verification response disclosing "Resul Kesfeden" as the "underlying" registrant and contact information for the Domain Name. The Center sent an email communication to the Complainant on May 16, 2018 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 17, 2018. Hereinafter references to the "Respondent" are intended to be references to that person unless the contrary is apparent.
3.2 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").
3.3 In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on May 18, 2018. In accordance with the Rules, paragraph 5, the due date for Response was June 7, 2018. The Respondent submitted an email communication on May 20, 2018 but did not submit any formal response. Accordingly, the Center notified the Parties on June 8, 2018 that it would proceed to the Panel appointment.
3.4 The Center appointed Matthew S. Harris as the sole panelist in this matter on June 13, 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
4.1 The Complainant is a company incorporated in Malta. It has since 2011 operated a gaming website from the domain name <bets10.com>. It operates the largest online poker network in the world with 18 million active users.
4.2 The Complainant is the owner of the following registered trade marks:
(i) European Union registered trade mark no. 009941139 for BETS10 as a word in classes 36, 38 and 41 applied for on May 4, 2011 and proceeding to grant on September 14, 2011; and
(ii) European Union registered trade mark no. 012403713 for BETS10 as a figurative device in classes 36, 38 and 41 applied for on December 12, 2013 and proceeding to grant on May 5, 2014.
4.3 The Respondent would appear to be an individual based in Turkey.
4.4 The Domain Name was registered on February 17, 2018. It has been used since registration to display a website the home page for which would appear to be in Turkish but prominently displays the term "Bets10" at the top of the page and in various other places. It purports to be an information site but includes links to various other gaming sites, that compete with the Complainant.
4.5 On April 25, 2018 the Complainant legal representatives sent a cease-and-desist letter to the Respondent seeking the transfer of the Domain Name. The Respondent did not respond to this letter.
4.6 As at the date of this decision no website is operating from the Domain Name.
5. Parties' Contentions
5.1 The Complainant refers to its business and registered marks and describes the activity that has been undertaken from the Domain Name.
5.2 The Complainant contends that the Domain Name is confusingly similar to the Complainant's trade marks in that it comprises those marks with an addition of an extra "0" combined with the generic Top-Level Domain ("gTLD") ".xyz".
5.3 The Complainant claims that it is apparent from the content of the website operating from the Domain Name that the Domain Name is being "used to commercially profit from misleading consumers searching for information about the Complainant's business and trade[ ]marks" with a view to diverting them to the website or websites of a competitor. It is alleged that the Respondent has no right or legitimate interests in the Domain Name and its registration and use is in bad faith.
5.4 The Respondent did not file any formal response to the Complainant's contentions. However, on May 20, 2018 the Center received a short unsigned email in Turkish. A translation of that email is as follows
"You do not have any biographical or business rights in Bets100 or in your site. Leave empty jobs to the right jobs"
6. Discussion and Findings
6.1 There are no exceptional circumstances within paragraph 5(f) of the Rules so as to prevent the Panel from determining the dispute based upon the Complaint, notwithstanding the failure of any Respondent to lodge a formal Response.
6.2 To succeed in these proceedings the Complainant must make out its case in all respects under paragraph 4(a) of the Policy. Namely, the Complainant must prove that:
(i) the Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights (paragraph 4(a)(i)); and
(ii) the Respondent has no rights or legitimate interests in respect of the Domain Name (paragraph 4(a)(ii)); and
(iii) the Domain Name has been registered and are being used in bad faith (paragraph 4(a)(iii)).
6.3 However, under paragraph 14(b) of the Rules, where a party does not comply with any provision of the Rules, the Panel shall "draw such inferences therefrom as it considers appropriate".
A. Identical or Confusingly Similar
6.4 The Panel accepts that the most natural readings of the Domain Name are either as the term "bets100" combined with the gTLD ".xyz" or the terms "bets" and "100" in combination with the gTLD ".xyz". Either way the Panel concludes that the Domain Name is confusingly similar to a trade mark in which the Complainant has rights. In this respect, the Domain Name comprises the entirety of the Complainant's word mark with simply the addition of the number "0" and the gTLD. These additions do not so fundamentally change the way in which the Domain Name is likely to be read that it calls into question a finding of "confusing similarity".
6.5 Further and in any event, section 1.15 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0") states: "In some instances, panels have however taken note of the content of the website associated with a domain name to confirm confusing similarity whereby it appears prima facie that the respondent seeks to target a trade mark through the disputed domain name".
6.6 Were there any doubt as to confusing similarity (which the Panel does not accept there is), this would be such a case where the content of the website assists. For reasons that are set out in the remainder of this decision, the Panel concludes from the content of the Respondent's website that the Respondent seeks to take an advantage of an association between the Domain Name and with the Complainant's business and mark.
6.7 It follows that the complainant has made out the requirements of paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
6.8 As is discussed in the context of bad faith, the Panel accepts that the Domain Name has been chosen because of its similarity with the Complainant's mark and that similarity is being unfairly used in order to draw Internet users to the Respondent's website with a view to directing those Internet users to websites that compete with the Complainant. There is no right or legitimate interest in holding a domain name for such a purpose and such conduct is prima facie evidence that no such right or legitimate interest exists.
6.9 Further, there is no suggestion that the term "Bets100" is a term by which the Respondent is independently known. Indeed the Panel notes that in its email to the Center, the Respondent sole contention is not that it is known by that term but that the Complainant does not have trade mark rights in "Bets100" as opposed to "Bets10".
6.10 It follows that the Complainant has made out the requirements of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
6.11 The Panel has already stated that it accepts that the Domain Name has been chosen because if its similarity with the Complainant's mark and that similarity is being unfairly used in order to drawing Internet users to the Respondent's website with a view to directing Internet users to websites that compete with the Complainant.
6.12 The reasons for this are as follows:
(i) Although the term "Bets100" is made up of an ordinary English word and a number, as a combination it has no obvious inherent descriptive meaning. Given this and in the absence of any evidence to the contrary, the obvious inference is that it was chosen because of its similarity to the Complainant's mark, that the ordinary terms that it comprises.
(ii) The Panel accepts that the Complainant's business conducted under its mark is substantial;
(iii) The very content of the website operating from the Domain Name with its references to "Bets10" rather than "Bets100", makes it clear that the Domain Name was registered and is being used because of its associations with the Complainant's mark; and
(iv) The Complainant has presented sufficient evidence to demonstrate that the website operating from the Domain Name contains links to websites that compete with the Complainant.
6.13 The Panel also accepts the Complainants contentions that the Respondent has sought to commercially benefit from those links. However, even were this not the case, it is clear that the Domain Name and website is being used in a manner that intends to benefit the other websites to which links are made. That is sufficient for the purposes of paragraph 4(b)(iv) of the Policy, which the Panel concludes applies in this case (see for example Express Scripts, Inc. v. Windgather Investments Ltd. / Mr. Cartwright, WIPO Case No. D2007-0267 and also section 3.1.4 of the WIPO Overview 3.0)
6.14 Further although not determinative, the Panel accepts that the Complainant is correct when it contends that the website operating from the Domain Name does not identify the person or entity operating the website and that the Respondent has further used a privacy service with the intention of disguising his identity. This is therefore one of these cases where the use of such a privacy service is a further indicator of bad faith (see section 3.6 of the WIPO Overview 3.0).
7.1 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 <bets100.xyz> be transferred to the Complainant.
Matthew S. Harris
Date: June 22, 2018