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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

AB Svenska Spel. v. Horizon Star Enterprizes Ldt

Case No. D2005-0523

 

1. The Parties

The Complainant is AB Svenska Spel, Visby, Sweden, represented by Albihns Gцteborg AB, Sweden.

The Respondent is Horizon Star Enterprizes Ldt, Gibraltar, Spain.

 

2. The Domain Name and Registrar

The disputed domain name <wwwsvenskaspel.com> is registered with Dotster, Inc..

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 16, 2005. On May 18, 2005, the Center transmitted by email to Dotster, Inc. a request for registrar verification in connection with the domain name at issue. On May 24, 2005, Dotster, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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 May 25, 2005. In accordance with the Rules, paragraph 5(a), the due date for Response was June 14, 2005. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 16, 2005.

The Center appointed Fabrizio Bedarida as the sole panelist in this matter on June 23, 2005. 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.

The language of the proceeding is English.

 

4. Factual Background

The Complainant, which is wholly owned by the Swedish State, is the largest gaming company in Sweden with a market share of 54% and an annual turnover for 2004, of SEK 20,2 billion.

The Complainant has used its trademark and service mark SVENSKA SPEL since January 1997. The Complainant’s activities include, but are not limited to, bookmaking on sports competitions, bookmaking on dog racing, bookmaking on number draws, traditional lotteries, organizing games on video lottery terminals (VLTs) and organizing casino games. The Complainant’s products are found at approximately 6200 agents and at approximately 2000 restaurants. Further, the products featured in the Complainant’s portfolio today can be found at the Complainant’s websites “www.svenskaspel.com” and “www.svenskaspel.se”.

Complainant holds the trademark and service mark SVENSKA SPEL, which has been registered in Sweden since August 23, 2002.

Further, the Complainant is the owner of the domain names <svenskaspel.com> and <svenskaspel.se> respectively registered on August 9, 1998, and January 17, 1997.

The domain name at issue <wwwsvenskaspel.com> was registered on April 5, 2005.

 

5. Parties’ Contentions

A. Complainant

Complainant contends the following:

1) That the disputed domain name <wwwsvenskaspel.com> is identical or confusingly similar to the trademark and service mark SVENSKA SPEL and to the domain names <svenskaspel.com> and <svenskaspel.se> in which Complainant has rights.

2) That the disputed domain name reproduces entirely the trademark SVENSKA SPEL, neither the addition of the generic acronym for the World Wide Web i.e. “www” nor the gTLD “.com” being capable of distinguishing the disputed domain name from Complainant’s trademark and domain names.

3) That the Respondent has no rights or legitimate interests in respect of the disputed domain name, that it is not commonly known by the disputed domain name and that it is not making any legitimate or fair use of it.

4) That Complainant has never licensed or otherwise permitted the Respondent to use its trademark or to register any domain name including the SVENSKA SPEL trademark.

5) That this is a typical case of “typosquatting” where the Respondent has registered the Complainant’s trademark and service mark SVENSKA SPEL with “www” in front and no period between. The Respondent wishes to take advantage of the Complainant’s trademark since Internet users who neglect to include the period between the “www” and the Complainant’s trademark SVENSKA SPEL are diverted to the Respondent’s website “www.laislabonitacasino.com” where gaming products directly in competition with those of the Complainant are offered.

6) That Respondent’s website “www.laislabonitacasino.com” contains a Nordic version which further contributes to create a likelihood of confusion with the Complainant.

7) That the Respondent, who is providing competing products, was aware of the Complainant’s trademark SVENSKA SPEL when registering the misspelled domain name at issue.

8) That the purposeful addition of “www” in front of the Complainant’s trademark and service mark SVENSKA SPEL is a clear indication that the Respondent is using the domain name at issue in order to mislead Internet users who intend to reach the Complainant’s website “www.svenskaspel.com”.

9) That the Respondent’s use of the domain name at issue can only be interpreted as a disrupting and misleading practice resulting from the intent of Respondent to attract Internet users to its competing website.

B. Respondent

The Respondent did not reply to the Complainant’s contentions. Thus Respondent has failed to submit any Response. It has not contested the allegations in the Complaint and the Panel shall decide this proceeding on the basis of Complainant’s submissions, drawing such inferences from the Respondent’s default that it considers appropriate (paragraph 14(b) of the Rules).

 

6. Discussion and Findings

Paragraph 15(a) of the Rules instructs the Panel as to the principles the Panel is to use in determining the dispute: “A Panel shall decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”

Paragraph 4(a) of the Policy lists three elements that the Complainant must prove to merit a finding that the domain names registered by the Respondent be transferred to the Complainant:

1) the domain name is identical or confusingly similar to a trademark or service mark (“mark”) in which the Complainant has rights; and

2) the Respondent has no rights or legitimate interests in respect of the domain name; and

3) the domain name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

The Panel finds the disputed domain name <wwwsvenskaspel.com> to be confusingly similar to the trademark SVENSKA SPEL owned by the Complainant. As indicated by the Complainant and in accordance with many decisions rendered under the Policy neither the addition of the generic acronym “www” nor the addition of the gTLD “.com” is a distinguishing feature. In other words, the mere addition of those terms does not have such an influence upon the overall impression that it would exclude the likelihood of confusion between the domain name and the Complainant’s trademark (See Pfizer, Inc. v. Seocho and Vladimir Snezko, WIPO Case No. D2001-1199).

The Complainant has thus succeeded in proving evidence of the confusing similarity between its trademark and the domain name under dispute.

B. Rights or Legitimate Interests

The Complainant must show that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The respondent in a UDRP proceeding does not assume the burden of proof, but may establish a right or legitimate interest in a disputed domain name by demonstrating in accordance with paragraph 4(c) of the Policy:

a) that before any notice to the respondent of the dispute, he or she used or made 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;

b) that the respondent is commonly known by the domain name, even if he or she has not acquired any trademark rights; or

c) that the respondent intends to make a legitimate, non-commercial or fair use of the domain name without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark.

The Respondent does not appear to have any connection or affiliation with the Complainant, who has not licensed or otherwise authorized Respondent to use or apply for any domain name incorporating the SVENSKA SPEL trademark. Respondent has not been known under this domain name. Respondent does not appear to make any legitimate use of the domain name for its own commercial or non-commercial activities, in fact the domain name <wwwsvenskaspel.com> redirects to another Respondent’s website i.e. “www.laislabonitacasino.com” where gaming products directly in competition with those of the Complainant are offered. Respondent has not filed any Response to the Complaint and has not alleged any facts or elements to justify prior rights and/or legitimate interests in the disputed domain name. Therefore, the Panel concludes that the absence of any legitimate use and the Respondent’s failure to justify the use of the disputed domain name, constitutes prima facie evidence of a lack of rights to or legitimate interests in the domain name.

Accordingly, the Panel finds that the Complainant has satisfied the burden of proof with respect to paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

For the purpose of paragraph 4(a)(iii) 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 the Domain Name in bad faith:

i) circumstances indicating that the holder 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 owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of the holder’s documented out-of-pocket costs directly related to the domain name; or

ii) the holder has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the holder has engaged in a pattern of such conduct; or

iii) the holder has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

iv) by using the domain name, the holder has intentionally attempted to attract, for commercial gain, Internet users to the holder’s 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 the holder’s website or location or of a product or service on the holder’s website or location.

Accordingly, for a Complainant to succeed, the Panel must be satisfied that the domain name has been registered and is being used in bad faith.

In the absence of contrary evidence, the Panel considering that on the Respondent’s website “www.laislabonitacasino.com gaming products directly in competition with those of the Complainant are offered and that the addition of the acronym “www” suggests that Respondent was aware of Complainant’s trademark SVENSKA SPEL, and particularly of Complainant’s domain name <svenskaspel.com>, finds that Respondent had actual knowledge of Complainant’s rights when it registered the disputed domain name. The Panel, in accordance with previous decisions issued under the UDRP, is of the opinion that actual knowledge of Complainant’s trademark and activities at the time of the registration of the disputed domain is to be considered an inference of bad faith (See Parfums Christian Dior v. Javier Garcia Quintas and Christiandior.net, WIPO Case No. D2000-0226).

Moreover, the Panel agrees with Complainant’s allegations that the purposeful addition of “www” in front of the Complainant’s trademark SVENSKA SPEL is a clear indication that the Respondent is using the domain name at issue in order to mislead Internet users who intend to reach the Complainant’s website “www.svenskaspel.com” and that the Respondent’s use of the domain name can only be interpreted as a disrupting and misleading practice resulting from the intent of Respondent to attract Internet users to its competitive website.

The Panel finds that the use of the disputed domain name to divert Internet users to a website of a Complainant’s competitor (be it the Respondent’s website or that of a third party’), is further evidence of bad faith use of the disputed domain name.

In this sense AltaVista Company v. Saeid Yomtobian, WIPO Case No. D2000-0937 where the Panel found that: “the use of misspellings alone is sufficient to prove bad faith under paragraph 4(b)(iv) of the Policy because Respondent has used these names intentionally to attract, for commercial gain, Internet users to his website by making a likelihood of confusion with the Complainant’s mark. Respondent’s bad faith is further demonstrated by his offering of competing search engine services at the diverted sites.

 

7. Decision

For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <wwwsvenskaspel.com> be transferred to the Complainant.


Fabrizio Bedarida
Sole Panelist

Dated: July 4, 2005

 

Источник информации: https://internet-law.ru/intlaw/udrp/2005/d2005-0523.html

 

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