WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Manson Capital Ltd. v. Domain Admin Domain Admin, whoisprotection biz / hamiy isiyok

Case No. D2015-2359

1. The Parties

The Complainant is Manson Capital Ltd. of Tortola, British Virgin Islands, Overseas Territory of the United Kingdom of Great Britain and Northern Ireland, represented by Fenech & Fenech Advocates, Malta.

The Respondent is Domain Admin Domain Admin, whoisprotection biz of Istanbul, Turkey / hamiy isiyok of Istanbul, Turkey.

2. The Domain Names and Registrar

The disputed domain names <tempobeti70.com> and <tempobett70.com> are registered with FBS Inc. (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 28, 2015. On December 28, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On December 31, 2015, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on January 6, 2016 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed amended Complaint on January 13, 2016. Further to the Center’s communication (sent in both English and Turkish) regarding the language of proceedings, the Complainant submitted its request for English to be the language of proceedings on January 11, 2016. The Respondent did not reply to this request.

The Center verified that the Complaint and 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 Turkish and English, and the proceedings commenced on January 18, 2016. In accordance with the Rules, paragraph 5, the due date for Response was February 7, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 8, 2016.

The Center appointed Kaya Köklü as the sole panelist in this matter on February 17, 2016. 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 company with its registered seat in the British Virgin Islands. It is active in the field of offering online betting and gambling services throughout Europe. It offers its services in more than ten languages, including Turkish.

The Complainant is the owner of the European trademark registration for the word mark TEMPOBET, which was registered in 2009 (CTM 8187528). It further owns the European figurative mark TEMPOBET TIMELESS PASSION, which was also registered in 2009 (CTM 8331878). Both trademarks (hereinafter referred to as the “TEMPOBET trademarks”) claim protection particularly for a large variety of gaming and gambling goods and services.

The Complainant further owns and operates several domain names like <tempobet70.com> and <tempobet33.com>.

The true identity of the Respondent remains unclear, as the contact details within the domain name registrations are false or at least incomplete. It appears, in any event, that the Respondent is an individual from Turkey.

The disputed domain name <tempobeti70.com> was created on June 3, 2015.

The disputed domain name <tempobett70.com> was created on June 4, 2015.

At the time of the decision, the disputed domain names did not resolve to an active website and were marked as “under construction”.

5. Parties’ Contentions

A. Complainant

The Complainant requests the transfer of the disputed domain names.

The Complainant is of the opinion that the disputed domain names are confusingly similar to the Complainant’s TEMPOBET trademarks.

The Complainant contends that the disputed domain names are identical to the Complainant’s TEMPOBET trademarks except for the additions of “i70” and “t70”, respectively. The Complainant submits that the insertion of these additions is a deliberate misspelling of the Complainant’s trademark, and that these misspellings do not distinguish the disputed domain names from the Complainant’s registered trademark. Accordingly, the Complainant contends that the disputed domain names are confusingly similar to the Complainant’s registered TEMPOBET trademarks.

Furthermore, the Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain names. The Complainant further alleges that the Respondent has never used and does not intend to use the TEMPOBET trademark in connection with a bona fide offering of goods or services.

Finally, it is argued that the Respondent has registered and is using the disputed domain names in bad faith.

In particular, the Complainant argues that the Respondent is engaged in typosquatting, namely registering and using domain names that are a misspelling of the Complainant’s registered trademarks, in an attempt to divert unsuspecting Internet users looking for the Complainant to the Respondent’s website for illicit purposes.

It is further alleged that the Respondent used the disputed domain names for phishing login details of customers of the Complainant.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

According to paragraph 14(a) and 15(a) of the Rules, the Panel shall decide the Complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable and on the basis of the Complaint where no Response has been submitted.

In accordance with paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements is satisfied:

(i) the disputed domain names are identical or confusingly similar to the trademarks in which the Complainant has rights; and

(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain names; and

(iii) the disputed domain names have been registered and are being used in bad faith.

Paragraph 4(a) of the Policy states that the Complainant bears the burden of proving that all these requirements are fulfilled, even if the Respondent has not replied to the Complaint. Stanworth Development Limited v. E Net Marketing Ltd., WIPO Case No. D2007-1228.

However, concerning the uncontested information provided by the Complainant, the Panel may, where appropriate, accept the provided reasonable factual allegations in the Complaint as true. Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110.

The Panel has taken note of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”) and, where appropriate, will decide consistent with the WIPO Overview 2.0.

A. Language of the Proceedings

The Panel determines in accordance with the Complainant’s request and the Rules, paragraph 11(a), that the language of these administrative proceedings shall be the English language. Although the language of the Registration Agreement is the Turkish language, the Panel finds that it would be inappropriate, given the circumstances of this case, to conduct the proceedings in Turkish and request a costly and time consuming Turkish translation of the Complaint, while the Respondent failed to raise any objection to the Center’s communication with regard to the language of the proceedings, although communicated in Turkish and English. The Panel believes that the Respondent will not be prejudiced by a decision being rendered in the English language.

B. Identical or Confusingly Similar

The Panel finds that the Complainant does have registered trademark rights in the mark TEMPOBET by virtue of at least two Community trademark registrations (CTM 8187528 and CTM 8331878).

The Panel further finds that the disputed domain names are confusingly similar to the Complainant’s registered TEMPOBET trademarks. The addition of “i70” and “t70”, respectively, at the end of the fanciful term “tempobet” does not serve to distinguish the disputed domain names from the Complainant’s registered TEMPOBET trademarks.

Accordingly, the Panel finds that the Complainant has satisfied the requirement under paragraph 4(a)(i) of the Policy.

C. Rights or Legitimate Interests

The Panel further finds that the Respondent has failed to demonstrate any rights or legitimate interests in the disputed domain names.

While the burden of proof on this element remains with the complainant, panels have recognized that this would result in the often impossible task of proving a negative, in particular as the evidence in this regard is often primarily within the knowledge of the respondent. Therefore, the Panel agrees with prior UDRP panels that the complainant is required to make out a prima facie case before the burden of production of evidence shifts to the respondent to show that it has rights or legitimate interests in the disputed domain names in order to meet the requirements of paragraph 4(a)(ii) of the Policy. Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455.

The Panel finds that the Complainant has satisfied this requirement, while the Respondent has failed to file any evidence or make any convincing argument to demonstrate rights or legitimate interests in the disputed domain names according to the Policy, paragraph 4(a)(ii) and 4(c).

In its Complaint, the Complainant has provided uncontested prima facie evidence that the Respondent has no rights or legitimate interests to use the Complainant’s trademark TEMPOBET in a confusingly similar way within the disputed domain names.

In the absence of a Response by the Respondent, there is no indication in the current record that the Respondent is commonly known by the disputed domain names. Furthermore, the Respondent has failed to demonstrate any of the other non-exclusive circumstances evidencing rights or legitimate interests under the Policy, paragraph 4(c) or other evidence of rights or legitimate interests in the disputed domain names.

In particular, the Panel is prepared to find that the Respondent is not using the disputed domain names in a bona fide manner. The Panel finds that the Respondent must have been aware of the Complainant’s registered rights in the TEMPOBET trademark, and that the Respondent has deliberately misspelled the Complainant’s registered trademark in an attempt to divert Internet users seeking the Complainant’s website to the Respondent’s website for the illicit purposes. This is classic “typosquatting” and does not constitute a bona fide offering of goods or services under the Policy. If the Respondent had had any genuine plans for a bona fide use of the disputed domain names, it could have produced something demonstrable to support any claim. The Panel infers from its failure to do so that it had no such plans.

Bearing in mind that “tempobeti” and “tempobett” are not recognized terms in the Turkish language or otherwise, the Panel finds that the Complainant has satisfied the requirement under paragraph 4(a)(ii) of the Policy.

D. Registered and Used in Bad Faith

The Panel is prepared to find, on the evidence filed, that the Respondent must have been aware of the Complainant’s registered trademark rights in the mark TEMPOBET when it registered the disputed domain names in 2015. The Panel concludes that the Respondent acted in bad faith by attempting to trade on the goodwill and reputation of the Complainant’s trademark by engaging in typosquatting. In this regard, it can be left open whether the Respondent has actually used the disputed domain names for purposes of phishing login details of the Complainant’s customers. The Panel is of the opinion that targeted typosquatting of this nature is sufficient evidence of bad faith registration and use.

The fact that the disputed domain names are currently inactive and marked as “under construction” does not change the Panel’s findings in this regard.

Accordingly, the Panel finds that the Respondent has registered and used the disputed domain names in bad faith, and that the Complainant has therefore satisfied the required criteria under paragraph 4(a)(iii) of the Policy.

7. Decision

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 names, <tempobeti70.com> and <tempobett70.com> be transferred to the Complainant.

Kaya Köklü
Sole Panelist
Date: March 1, 2016