WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Evolution AB v. KI CHEOL BAE
Case No. D2021-3568
1. The Parties
The Complainant is Evolution AB, Sweden, represented by Zacco Sweden AB, Sweden.
The Respondent is KI CHEOL BAE, United States of America (“United States” or “US”).
2. The Domain Name and Registrar
The disputed domain name <evolution.sale> is registered with GoDaddy.com, LLC. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 26, 2021. On October 26, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 26, 2021, 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 November 10, 2021, 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 amendment to the Complaint on November 10, 2021.
The Center verified that the Complaint together with the amendment to 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 18, 2021. In accordance with the Rules, paragraph 5, the due date for Response was December 8, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 15, 2021.
The Center appointed Adam Taylor as the sole panelist in this matter on December 22, 2021. 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, which was started trading in 2006, provides online casino services to gaming operators under the name “Evolution”, having rebranded from “Evolution Gaming” in 2020.
The Complainant employs more than 10,000 people in Europe and North America and is licensed and regulated by gambling authorities in at least ten countries.
Companies connected with the Complainant own the following United States trade marks for EVOLUTION GAMING:
- figurative mark no. 4369126, owned by Evolution Gaming Ltd, filed February 8, 2011, registered July 16, 2013, in Class 41; and
- word mark no. 5772461, owned by Evolution Malta Limited, filed May 16, 2017, registered June 11, 2019, in Classes 9, 28, and 42).
The Complainant operates a website at “www.evolution.com”.
The disputed domain name was registered on July 26, 2021.
The disputed domain name no longer resolves to a website but, at the time of filing the Complaint, it resolved to a site branded with the Complainant’s “Evolution” logo and with the phrases “Official Evolution” and “World’s Best Casino Solution Evolution API”. The site included additional content describing the Complainant’s services that was copied from the Complainant’s own website as well as a copyright notice in the name of “Evolution Gaming Limited” (a subsidiary of the Complainant) and references to other marks owned by the Complainant under the heading “Our Brands”.
The Complainant sent a cease and desist letter to the Respondent on September 30, 2021, as well a reminder on October 21, 2021. On October 24, 2021, the Respondent replied saying “what would you like us to do”. The Complainant responded requiring transfer of the disputed domain name of the disputed domain name and removal of the website, but the Respondent did not reply.
5. Parties’ Contentions
The following is a summary of the Complainant’s contentions.
The disputed domain name is confusingly similar to the Complainant’s trade mark, which is included in the disputed domain name in its entirety and is clearly recognisable. There is a considerable risk that the trade public will perceive the disputed domain name as being connected with the Complainant.
The Respondent has no rights or legitimate interests in respect of the disputed domain name.
The Complainant has not authorised the Respondent to use its trade marks.
There is no evidence indicating that the Respondent has used the name “Evolution” as a legitimate company or other name.
The Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services but, rather, has chosen the disputed domain name based on the Complainant’s trade marks and fame to generate traffic and income via a website impersonating the Complainant.
The Respondent is using the disputed domain name for a commercial, and possibly fraudulent, purpose that will risk diluting and damaging the Complainant’s trade marks.
The disputed domain name was registered and is being used in bad faith.
It is obvious that the Respondent was motivated to register the disputed domain name by the fame and value of the Complainant’s marks, which long predate it.
The Respondent has intentionally used the disputed domain name to create a likelihood of confusion with the Complainant’s marks.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Under the Policy, the Complainant is required to prove on the balance of probabilities that:
- the disputed domain name is identical or confusingly similar to a trade mark in which the Complainant has rights;
- the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
- the disputed domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
As mentioned in section 4 above, the Complainant has produced evidence of two United States trade marks for EVOLUTION GAMING owned by companies which, based on limited Panel research as to the Complainant’s business locations and addresses listed on its trade mark certificates, appear to be part of the Complainant’s corporate group. In these circumstances, and in the absence of any objection from the Respondent, which has not appeared in the proceeding, the Panel finds it reasonable to infer that the Complainant has rights in these trade marks for the purpose of standing to file the Complaint – see section 1.4.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).
Section 1.7 of WIPO Overview 3.0 makes clear that, where at least a dominant feature of the relevant mark is recognisable in the disputed domain name, it will normally be considered confusingly similar to that mark for purposes of UDRP standing. Here, the disputed domain name comprises the dominant feature of the Complainant’s trade marks, namely the word “evolution”.
Accordingly, the Panel finds that the Complainant has established the first element of paragraph 4(a) of the Policy.
B. Rights or Legitimate Interests
As explained in section 2.1 of WIPO Overview 3.0, the consensus view is that, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If not, the complainant is deemed to have satisfied the second element.
Here, the Complainant has not licensed or otherwise authorised the Respondent to use its trade mark.
Paragraph 4(c) of the Policy gives examples of circumstances which, if proved, suffice to demonstrate that a respondent possesses rights or legitimate interests.
As to paragraph 4(c)(i) of the Policy, the Panel has concluded below that the Respondent has used the disputed domain name to intentionally attempt to attract, confuse and profit from Internet users seeking the Complainant’s products and services. Such use of the disputed domain name could not be said to be bona fide.
Nor is there any evidence that paragraphs 4(c)(ii) or (iii) of the Policy apply in the circumstances of this case.
The Panel finds that the Complainant has established a prima facie case of lack of rights or legitimate interests and there is no rebuttal by the Respondent.
For the above reasons, the Panel concludes that the Complainant has established the second element of paragraph 4(a) of the Policy.
C. Registered and Used in Bad Faith
The Panel notes that the Respondent has not come forward to deny the Complainant’s assertions of bad faith and that, in prior correspondence, it responded to the Complainant’s cease and desist reminder by simply stating “[w]hat would you like us to do” without providing any explanation of its conduct.
In these circumstances, and given the evidence of use of the disputed domain name for a website impersonating the Complainant as explained in section 4 above, the Panel readily concludes that the disputed domain name was registered and is being used in bad faith by the Respondent in accordance with paragraph 4(b)(iv) of the Policy. The Respondent has intentionally attempted to attract Internet users to its website for commercial gain by creating a likelihood of confusion with the Complainant’s trade mark as to the source, sponsorship, affiliation or endorsement of such site.
The Complainant has therefore established the third element of paragraph 4(a) 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, <evolution.sale>, be transferred to the Complainant.
Date: January 5, 2022