WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
PartyGaming IA Limited, GVC Holdings PLC v. Privacy Protection / Creedov Egor, Uff Killah ltd
Case No. D2019-0106
1. The Parties
The Complainant is PartyGaming IA Limited of Hamilton, Bermuda, Overseas Territory of the United Kingdom, GVC Holdings PLC of Douglas, Isle of Man, United Kingdom, represented by Demys Limited, United Kingdom.
The Respondent is Privacy Protection of Moscow, the Russian Federation / Creedov Egor of Moscow, the Russian Federation.
2. The Domain Name and Registrar
The disputed domain name <partypoker.space> is registered with Registrar of Domain Names REG.RU LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 18, 2019. On January 18, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 22, 2019, 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 the same date providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. On the same date the Center sent an email in English and Russian regarding the language of the proceedings. The Complainant filed an amended Complaint on the same date and requested English to be the language of the proceedings. The Respondent did not reply on the language of the proceedings.
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”).
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint in both English and Russian, and the proceedings commenced on January 29, 2019. In accordance with the Rules, paragraph 5, the due date for Response was February 18, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 19, 2019.
The Center appointed Taras Kyslyy as the sole panelist in this matter on February 25, 2019. 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 in the online gaming and services industry. The Complainant is one of the world’s largest online gaming companies and is listed on the London Stock Exchange and conducts businesses in several countries around the world.
The Complainant owns trademark PARTYPOKER in the following jurisdictions:
- Russian Federation trademark registration No.305562, registered on April 20, 2006;
- European Union trademark registration No.005319512, registered on May 14, 2008;
- United States of America trademark registration No.4520242, registered on April 29, 2014;
- United Kingdom trademark registration No.00002430343, registered on February 15, 2008.
The Complainant operates inter alia via its website located at “www.partypoker.com”.
The disputed domain name was registered on August 1, 2018 and is inactive at the time of review of the Complaint. Previously it resolved into a website suggesting online gaming services.
5. Parties’ Contentions
The disputed domain name is identical to the Complainant’s trademark. The generic Top-Level Domain (“gTLD”) “.space” has no particular relevance.
The Respondent has no rights or legitimate interests in the disputed domain name. The Respondent is not commonly known by the disputed domain name. The Respondent is not licensed or permitted by the Complainant to use the disputed domain name. The Respondent does not own any trademarks incorporating the disputed domain name. The Respondent never traded or operated as Partypoker. The disputed domain name is not used in the connection with legitimate noncommercial or fair use. The disputed domain name cannot be used without causing confusion, since it is identical to the Complainant’s trademark. The Respondent does not pass the test mentioned in Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903 (“the Oki Data Test”). The Respondent did not react to the Complainant’s cease and desist letter.
The disputed domain name was registered and is being used in bad faith. The registration was primarily for purpose of disrupting the Complainant’s business. The Respondent intended to attract users through confusion.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Language of the proceedings
The language of the Registration Agreement for the disputed domain name is Russian. 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 Panel may also order that any documents submitted in a language other than that of the proceeding be translated.
However, as noted by previous UDRP panels, paragraph 11 of the Rules must be applied in accordance with the overriding requirements of paragraphs 10(b) and 10(c) of the Rules that the parties are treated equally, that each party is given a fair opportunity to present its case and that the proceeding takes place with due expedition (see, e.g., General Electric Company v. Edison Electric Corp. a/k/a Edison Electric Corp. General Energy, Edison GE, Edison-GE and EEEGE.COM, WIPO Case No. D2006-0334).
In deciding whether to allow the proceedings to be conducted in a language other than the language of the Registration Agreement, and to require the Complainant in an appropriate case to translate the Complaint into the language of that agreement, the Panel must have regard to all “the relevant circumstances” of the case. The factors that the Panel should take into consideration include whether the Respondent is able to understand and effectively communicate in the language in which the Complaint has been submitted and would suffer no real prejudice, and whether the expenses of requiring translation and the delay in the proceedings can be avoided without at the same time causing injustice to the Parties.
The Complainant has submitted a request that the language of the proceedings be English. The Complainant believes that the language of the proceedings shall be English, otherwise due to additional costs and undue delay the Complainant would be unfairly disadvantaged by being forced to translate the Complaint to Russian.
The Panel further notes that no objection was made by the Respondent to the proceeding being in English nor any request made that the proceedings be conducted in Russian, the language of the Registration Agreement. This was despite the Center notifying the Respondent in Russian and English that the Respondent is invited to present its objection to the proceedings being held in English and if the Center did not hear from the Respondent by a certain date, the Center would proceed on the basis that the Respondent had no objection to the Complainant’s request that English be the language of the proceedings. The Respondent had the opportunity to raise objections or make known its preference, but did not do so.
The Panel also finds that substantial additional expense and delay would likely be incurred if the Complaint had to be translated into Russian.
Taking all these circumstances into account, the Panel finds that it is appropriate to exercise its discretion and allow the proceedings to be conducted in English.
B. Identical or Confusingly Similar
The gTLD “.space” in the disputed domain name is viewed as a standard registration requirement and may be disregarded for the purposes of the confusing similarity test (see, e.g., Rexel Developpements SAS v. Zhan Yequn, WIPO Case No. D2017-0275).
According to section 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (the “WIPO Overview 3.0”) in cases where a domain name incorporates the entirety of a trademark the domain name will normally be considered identical or confusingly similar to that mark for purposes of UDRP standing.
Considering the above the Panel finds that the disputed domain name is identical to the Complainant’s trademark, therefore, the Complainant has established its case under paragraph 4(a)(i) of the Policy.
C. Rights or Legitimate Interests
The Complainant has established prima facie that the Respondent has no rights or legitimate interests in the disputed domain name.
Furthermore, the Respondent provided no evidence that it holds a right or legitimate interest in the disputed domain name.
The Respondent is not commonly known by the disputed domain name, which could demonstrate its right or legitimate interest (see, e.g., World Natural Bodybuilding Federation, Inc. v. Daniel Jones TheDotCafe, WIPO Case No. D2008-0642).
The Complainant did not license or otherwise agree for use of its prior registered trademarks by the Respondent, thus no actual or contemplated bona fide or legitimate use of the disputed domain name could be reasonably claimed (see, e.g., Sportswear Company S.P.A. v. Tang Hong, WIPO Case No. D2014-1875).
The disputed domain name used to resolve to a website with a logo similar to the Complainant’s and designed similarly to the Complainant’s website to make the Internet users believe that they actually access the Complainant’s website or website authorized by the Complainant. Past UDRP panels confirmed that such actions prove Respondent has no rights or legitimate interests in a disputed domain name (see Daniel C. Marino, Jr. v. Video Images Productions, et al., WIPO Case No. D2000-0598, Houghton Mifflin Co. v. Weatherman, Inc., WIPO Case No. D2001-0211).
According to section 2.8.1 of the WIPO Overview 3.0 resellers, distributors using a domain name containing complainant’s trademark to undertake sales related to the complainant’s goods may be making a bona fide offering of goods and thus have a legitimate interest in such domain name. Outlined inthe Oki Data decision, the following cumulative requirements will be applied in the specific conditions of a UDRP case:
(i) the respondent must actually be offering the goods at issue;
(ii) the respondent must use the site to sell only the trademarked goods;
(iii) the site must accurately and prominently disclose the registrant’s relationship with trademark holder; and
(iv) the respondent must not try to “corner the market” in domain names reflecting trademark.
The Panel finds that the Respondent failed to satisfy at least the third above requirement and did not in any way disclose its actual relationship with the Complainant, and thus failed to pass the Oki Data Test. The Respondent’s use of the disputed domain name misleads consumers into thinking that the website is operated by or affiliated with the Complainant. As such, the Respondent’s use of the disputed domain name cannot be considered bona fide.
Considering the above the Panel finds the Respondent does not have rights or legitimate interests in the disputed domain name. Therefore, the Complainant has established its case under paragraph 4(a)(ii) of the Policy.
D. Registered and Used in Bad Faith
According to paragraph 4(b)(iv) of the Policy 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: by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your 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 your website or location or of a product or service on your website or location. In this case, the disputed domain name was resolving to a website featuring the Complainant’s trademark and making impression of being the Complainant’s or authorized by the Complainant to intentionally attract Internet users by creating likelihood of confusion with the Complainant’s trademark as to the source of the website and its products. The Panel finds the above confirms the disputed domain name was registered and used in bad faith.
Moreover, the Respondent failed to respond to the Complainant’s cease and desist letter, and did not provide any good reason to justify this, which confirms the bad faith (see, e.g., Compagnie Generale des Etablissements Michelin v. Vaclav Novotny, WIPO Case No. D2009-1022).
The Respondent ignored its possibility to provide any good explanations of its good faith while registering and using the disputed domain name.
Considering the above the Panel finds the disputed domain name was registered and is being used in bad faith. Therefore, the Complainant has established its case under 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 <partypoker.space> be transferred to the Complainant.
Date: March 7, 2019