WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Nationale Stichting tot Exploitatie van Casinospelen v. David Dobric
Case No. DNL2013-0038
1. The Parties
The Complainant is Nationale Stichting tot Exploitatie van Casinospelen of Hoofddorp, the Netherlands, represented by Novagraaf Nederland B.V., the Netherlands.
The Respondent is David Dobric of Darmstadt, Germany,
2. The Domain Name and Registrar
The disputed domain name <hollandcasinoonline.nl> is registered with SIDN through InterNetWire Communications GmbH.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 25, 2013. On July 26, 2013, the Center transmitted by email to SIDN a request for registrar verification in connection with the disputed domain name. On July 29, 2013, SIDN transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amended Complaint on August 1, 2013. The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Dispute Resolution Regulations for .nl Domain Names (the “Regulations”).
On August 1, 2013, the Center received an email communication from the Respondent. On the same day, the Center acknowledged receipt and informed the Respondent regarding the proceeding. The Center furthermore informed the Respondent that if no further communications or formal Response would be received by the due date for Response, the Respondent’s email communication of August 1, 2013, would be forwarded to the Panel for consideration in lieu thereof.
In accordance with the Regulations, articles 5.1 and 16.4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 2, 2013. In accordance with the Regulations, article 7.1, the due date for Response was August 22, 2013. The Respondent did not submit any formal Response or further communications. Accordingly, the Center informed the parties on August 23, 2013, that the Respondent’s email communication of August 1, 2013, would be regarded as the Response.
On August 30, 2013, SIDN commenced the mediation process. On October 1, 2013, SIDN extended the mediation process until October 29, 2013. On October 8, 2013, SIDN informed parties that the dispute had not been solved in the mediation process.
The Center appointed Wolter Wefers Bettink as the panelist in this matter on November 1, 2013. The Panel finds that it was properly constituted. The Panelist has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required to ensure compliance with the Regulations, article 9.2.
4. Factual Background
The Complainant is the holder of several trademark registrations (the “Trademarks”) with the elements “Holland Casino” or “Holland Casinos”, including the Benelux word mark no. 0150337, registered on January 5, 1987 and Benelux word mark no. 0607057, registered on January 24, 1997, as well as two CTM device marks (numbers 003705282 and 005001441), where “Holland Casino” is the dominant element.
The company of the Complainant was established in 1974 and in 1976 opened its first casino in the Netherlands. It now has 14 casinos which were visited by over 1.17 million people in 2012.
The disputed domain name <hollandcasinoonline.nl> (the “Domain Name”) was first registered on December 14, 2004. The Respondent became the holder of the Domain Name on February 9, 2012.
5. Parties’ Contentions
The Complainant submits that the Domain Name and the Trademarks are confusingly similar since the Domain Name contains the element “Holland Casino” in its entirety, while the addition “online” is not distinctive and does not prevent the risk of confusion.
According to the Complainant, the Respondent does not hold a registered trademark or trade name that is identical or similar to the Domain Name. Furthermore, the Respondent is not commonly known under the Domain Name, nor can the use thereof be considered legitimate non-commercial use, because the website offers an online casino service.
The Complainant submits that the Domain Name has been registered in bad faith, because the Respondent was or should have been aware of the Trademarks, as it is the sole licensee in the Netherlands for casino services, while the Respondent offers the same services online. Furthermore, the Domain Name has been or is being used for commercial gain (online casino services) whereby the Respondent is trying to mislead Internet users with regard to the origin of the services. According to the Complainant, it is likely that the average Internet user will be confused with regard to such origin and most likely expect the Domain Name to lead to the Complainant or at least expect a relation between the Domain Name and the Complainant.
The Respondent has not submitted a formal Response. In its email communication of August 1, 2013, the Respondent indicated that the Domain Name “exist for more than 5 years and we have never had any problem with Domain Disputes”. The Respondent furthermore contended that the Domain Name “is not a part of any other third company nor it’s a part of any existing company. It’s business operates solely and doesn’t effects any third company with similar company name in their URL” and that it “had once a complaint from “hollandcasino.nl” but in our email exchange with the company we have noticed them that our domain is not a part of their organization as it’s a part of freedom to register any domain as people wish.. That’s why the international domain registration exists”.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Domain Name and the Trademarks are confusingly similar as the Domain Name contains the element “Holland Casino” which constitutes or forms the dominant part of the Trademarks, while the addition of “online” is descriptive.
B. Rights or Legitimate Interests
The Complainant has made a prima facie case that the Respondent has no rights or legitimate interests in the Domain Name. The Respondent has no right to use the Trademarks as part of the Domain Name, nor is there evidence that it has rights of its own to an identical or similar name, let alone that it is commonly known under the Domain Name. The Domain Name is being used for a commercial website offering casino services. The Respondent does not make a legitimate noncommercial use of the Domain Name, and the Domain Name is not being used in connection with a bona fide offering of goods or services. The Respondent offered no plausible explanation why it registered the Domain Name containing the element “Holland Casino” for its website, and the Panel finds it highly likely that the Respondent registered the Domain Name to capitalize on the Complainant’s Trademarks and reputation.
Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in the Domain Name.
C. Registered or Used in Bad Faith
The Domain Name has been registered and/or is being used in bad faith. The Panel concludes that the Respondent knew or should have known of the Trademarks when registering the Domain Name in 2012, taking into account the reputation of the Trademarks, and their continued use since (for the oldest Trademark) 1987, for the only legal casino operation in the Netherlands. Furthermore, the Domain Name is under the “.nl” extension while the website is in the Dutch language, obviously targeting a Dutch audience. On the basis of these facts, the Panel also concludes that the Respondent by using the Domain Name intentionally attempts to attract for commercial gain Internet users to its website by creating a likelihood of confusion with the Trademarks.
For all the foregoing reasons, in accordance with articles 1 and 14 of the Regulations, the Panel orders that the domain name <hollandcasinoonline.nl> be transferred to the Complainant.
Wolter Wefers Bettink
Date: November 14, 2013