WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Realm Entertainment Limited v. bilgin uzum
Case No. D2013-0662
1. The Parties
The Complainant is Realm Entertainment Limited of Birkirkara, represented by Domain and Intellectual Property Consultants, DIPCON AB, Sweden.
The Respondent is bilgin uzum of Izmir, Turkey.
2. The Domain Name and Registrar
The disputed domain name <bets10bahisleri.com> (“Domain Name”) is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 11, 2013. On April 11, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On April 12, 2013, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on April 15, 2013 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 April 16, 2013.
The Center verified that the Complaint together with the amended Complaint (hereafter known as 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 18, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was May 8, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 10, 2013.
The Center appointed Nicholas Smith as the sole panelist in this matter on May 15, 2013. 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 a limited liability company which is incorporated in Malta. The Complainant runs a gaming website at the website “www.bets10.com”. The gaming site provides online gambling products and games to members of the general public. The Complainant’s site has more than 50 million page views per month.
The Complainant has held a trade mark registration for the word mark BETS10 (the “BETS10 Mark”) since at least September 14, 2011. It currently holds registrations for the BETS10 Mark in throughout Europe.
The Domain Name <bets10bahisleri.com> was created on October 19, 2012. It currently revolves to an Internet site (“Respondent’s Website”) in Turkish that appears to offer online betting services for a variety of sports. The site is titled “Bets10e” and frequently uses the term “Bets 10” on the page. The word “bahisleri” means “betting” or “betting odds” in Turkish.
5. Parties’ Contentions
The Complainant makes the following contentions:
(i) that the Domain Name is identical or confusingly similar to the Complainant’s BETS10 Mark;
(ii) that the Respondent has no rights nor any legitimate interests in respect of the Domain Name; and
(iii) that the Domain Name has been registered and is being used in bad faith.
The Complainant is the owner of the BETS10 Mark. It owns a community trade mark for BETS10, applied for on May 4, 2011, with a registration date of September 14, 2011.
The Domain Name consists of the BETS10 Mark in its entirety with the addition of the word “bahisleri”. The word bahisleri is Turkish for “bet” and is highly connected to the Complainant’s business activities. The Domain Name contains the BETS10 Mark in its entirety, and the mere addition of generic/descriptive terms that does not distinguish the Domain Name from the BETS10 Mark is irrelevant. The Domain Name will confuse Internet users into believing that the Respondent is somehow connected with the Complainant.
There are no rights or legitimate interests held by the Respondent in respect of the Domain Name. The Respondent is not commonly known as the Domain Name, nor does the Respondent have any authorization from the Complainant to register the Domain Name. Due to likely user confusion the Domain Name generates traffic to the Respondent’s Website which offers betting services that compete directly with the Complainant’s services. For that reason the Respondent has not used the Domain Name for a bona fide offering of goods and services nor has it made a legitimate noncommercial or fair use of the Domain Name.
The Domain Name was registered and is being used in bad faith. The Domain Name resolves to a website that purports to offer a range of betting services in direct competition with the Complainant. Furthermore the regular use of the phase “Bets 10” on the Respondent’s Website indicates that the Respondent is aware of the Complainant and the services it offers. Furthermore, the Complainant has sent cease and desist letters to the Respondent on January 29, 2013 and March 13, 2013, to which the Complainant has not received any answer. This conduct amounts to registration and use of the Domain Name in bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
To prove this element the Complainant must have trade or service mark rights and the Domain Name must be identical or confusingly similar to the Complainant’s trade or service mark.
The Complainant is the owner of the BETS10 Mark, having registrations for BETS10 as a trade mark in the United States of America.
The Domain Name consists of the BETS10 Mark and the suffix “bahisleri”. “bahisleri” means “betting” or “betting odds” in Turkish. The addition of a generic word such as “bahisleri” to a recognized trade mark does not operate to prevent a finding of confusing similarity between the BETS10 Mark and the Domain Name. An individual viewing the Domain Name (with a knowledge of Turkish) may be confused into thinking that the Domain Name would refer to a site run by the Complainant, offering its betting services to the Turkish market. The Panel finds that the Domain Name is confusingly similar to the Complainant’s BETS10 Mark. Consequently, the requirement of paragraph 4(a)(i) of the Policy is satisfied.
B. Rights or Legitimate Interests
To succeed on this element, a complainant must make out a prima facie case that the respondent lacks rights or legitimate interests in the domain name. If such a prima facie case is made out, then the burden of production shifts to the respondent to demonstrate rights or legitimate interests in the domain name.
Paragraph 4(c) of the Policy enumerates several ways in which a respondent may demonstrate rights or legitimate interests in a domain name:
“Any of the following circumstances, in particular but without limitation, if found by the panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of paragraph 4(a)(ii):
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.” (Policy, paragraph 4(c))
The Respondent is not affiliated with the Complainant in any way. It has not been authorized by the Complainant to register or use the Domain Name or to seek the registration of any domain name incorporating the BETS10 Mark or a mark similar to the BETS10 Mark. There is no evidence that the Respondent is commonly known by the Domain Name or any similar name. There is no evidence that the Respondent has used or made demonstrable preparations to use the Domain Name in connection with a bona fide offering of goods or services or for a legitimate noncommercial use. Rather it appears that the Respondent is using the Domain Name to operate a website that, without the permission of the Complainant:
(a) marks reference to the Complainant’s BETS10 Mark, potentially indicating that it is in some way connected with the Complainant or offers its services; and
(b) resolves to a website that appears to offer betting services in direct competition with the Complainant’s services, from which the Respondent is likely to receive some revenue.
Such use is not a bona fide offering of goods or services.
The Complainant has established a prima facie case that the Respondent lacks rights or interests in the Domain Name. The Respondent has had an opportunity to rebut the presumption that it lacks rights or legitimate interests but has chosen not to do so. The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name under paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
For the purposes of paragraph 4(a)(iii), 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:
(i) circumstances indicating that the Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name’ registration to the Complainant who is the owners of the trade mark or service mark or to a competitor of the Complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the Domain Name; or
(ii) The Respondent has registered the Domain Name in order to prevent the owner of the trade mark or service mark from reflecting the mark in a corresponding domain name, provided that the Respondent has engaged in a pattern of such conduct; or
(iii) The Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the Domain Name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or location or of a product or service on the Respondent’s website or location. (Policy, paragraph 4(b))
The Panel finds that it is likely that the Respondent was aware of the Complainant and its reputation in the BETS10 Mark at the time the Domain Name was registered. The Complainant and the Respondent operate in the same industry, that being online gaming. The Respondent’s Website makes frequent reference to the BETS10 Mark on its site and appears to at least imply that it is known as or has a connection with “Bets10”. The registration of the Domain Name in awareness of the Complainant’s Mark and in the absence of rights or legitimate interests amounts to registration in bad faith.
The Respondent is using the Domain Name to intentionally attempt to attract, for commercial gain, Internet users to a website, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of its website. The Respondent’s Website consists of a website offering online gaming services. It is therefore highly likely that the Respondent receives revenue from Internet users who happen to come across the Respondent’s Website by means of confusion with the BETS10 Mark and both the Complainant’s BETS10 Mark and Complainant’s website at “www.bets10.com”. The Respondent may also have registered the Domain Name primarily for the purpose of disrupting the business of a competitor. In either case, the Panel finds that such use amounts to use in bad faith.
Accordingly, the Panel finds that the Respondent has registered and is using the Domain Name in bad faith 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 Domain Name, <bets10bahisleri.com>, be transferred to the Complainant.
Date: May 20, 2013