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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

PartyGaming Plc v. Axel Brown

Case No. D2006-0471

 

1. The Parties

The Complainant is PartyGaming Plc, Gibraltar, United Kingdom of Great Britain and Northern Ireland, represented by Pattishall, McAuliffe, Newbury, Hilliard & Geraldson, United States of America.

The Respondent is Axel Brown, Austin, Texas, United States of America.

 

2. The Domain Name and Registrar

The disputed domain name <partypoker-million.com> is registered with Wild West Domains, Inc.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 12, 2006. On April 13, 2006, the Center transmitted by email to Wild West Domains, Inc. a request for registrar verification in connection with the domain name at issue. On April 13, 2006, Wild West Domains, 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 April 21, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was May 11, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 12, 2006.

The Center appointed Stefan Abel as the sole panelist in this matter on May 24, 2006. 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.

Noticing that the certified owners of the trademark registrations submitted by the Complainant were different entities and not the Complainant, the Panel ordered the Complainant by Administrative Panel Procedural Order issued on June 6, 2006, to produce evidence that the Complainant is entitled to invoke the rights in these trademarks in his own name in this proceeding until June 16, 2006, pursuant to the Rules paragraph 12. The Center received Complainant’s submission pursuant to this order on June 16, 2006.

In the absence of any evidence regarding the use of the disputed domain name the Panel has visited the “partypoker-million.com” site. The Panel considers itself competent to do so. Pursuant to par. 10 (a) of the Rules, the Panel can visit the internet in order to obtain additional light (see WIPO Case No. D2002-0070 <nestlefoods.com>).

 

4. Factual Background

The Complainant provides online gaming services since 1997. It has been listed on the London stock exchange since June 2005 and provides its services in numerous countries.

A company related to the Complainant – WPC Productions Ltd. (“WPC”) – owns the rights in a website available under the domain name <partypoker.com> providing online gaming services and in particular advertising the fifth edition of a poker tournament called PartyPoker.com Million taking place between March 12 and March 19, 2006, in several places in the United States. The PartyPoker.com Million tournament is an annual poker tournament launched in 2001.

The signs PARTYPOKER and PARTYPOKER.COM MILLION have been registered as trademarks in various jurisdictions for different companies, including the Community Trademark No. 3568607 PARTYPOKER.COM MILLION with application date of January 9, 2004, and registration date of June 21, 2005. The owner of this trademark – iGlobalMedia – is an indirectly wholly owned subsidiary of the Complainant and has given its consent that the Complainant invokes iGlobalMedia’s trademark registration and request that the disputed domain name be transferred to the Complainant. The trademark registrations also include the US trademark 3036622 PARTYPOKER.COM MILLION, application date January 6, 2004, registration date December 27, 2005, owned by WPC, which is as well an indirectly wholly owned subsidiary and which has consented to the Complainant’s request, too, that the disputed domain be transferred to the Complainant.

The Respondent registered the contested domain name on April 26, 2005. The domain name directs to WPCґs website “www.partypoker.com”. The whois record of the disputed domain lists the domain servers as: “THIS.DOMAIN-FOR-SALE.US” and “THAT.DOMAIN-FOR-SALE.US”.

 

5. Parties’ Contentions

A. Complainant

In summary, the Complainant’s contentions are as follows:

The Complainant owns the marks PARTYPOKER and PARTYPOKER.COM MILLION by virtue of long and extensive use and ownership of trademark registrations for the mark in various countries. The disputed domain is confusingly similar to the PARTYPOKER mark because it incorporates the entirety of the mark. The addition of the generic term or descriptive term “million” does not distinguish the contested domain name from the PARTYPOKER mark. The disputed domain is also confusingly similar to the PARTYPOKER.COM MILLION mark.

The Respondent has no right or legitimate interest in respect of the domain name. He is not being licensed or otherwise permitted to use the PARTYPOKER or PARTYPOKER.COM MILLION marks. The Respondent uses the disputed domain name to redirect persons to the “partypoker.com” website for the purpose of selling the infringing domain name for profit.

The Respondent registered the disputed domain name in bad faith. It is apparent by the whois record listing the domain servers as “THIS.DOMAIN-FOR-SALE.US/THAT.DOMAIN-FOR-SALE.US” that the contested domain name was registered and is used with the intent of selling it for profit. The widespread use and fame of the PARTYPOKER and PARTYPOKER.COM MILLION marks in the gaming industry prior to Respondent’s registration of the domain name renders his intention of selling the domain name for profit apparent, too. There is no plausible reason other than as the attempt to profit unfairly on the similarity with the Complainants marks.

B. Respondent

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

 

6. Discussion and Findings

The Policy provides for a transfer of the domain name if the Complainant establishes each of the following elements set out in paragraphs 4(a)(i) – (iii) of the policy.

- The respondent’s domain name is identical of or confusingly similar to a trademark or service mark in which the Complainant has rights; and

- the respondent has no rights or legitimate interests in respect of the domain name; and

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

Paragraph 4(b) of the Policy sets out the circumstances, which, in particular but without limitation, shall be considered as evidence of registration and use of the domain name in bad faith.

A. Identical or Confusingly Similar

The domain name at issue is confusingly similar to iGlobalMediaґs Community Trademark no. 3568607 PARTYPOKER.COM MILLION and to WPC`s US trademark no. 3036622 PARTYPOKER.COM MILLION. The only difference between the disputed domain name and these trademarks is the inversion of the order of the last two elements of the trademarks .COM and MILLION and the insertion of a hyphen between PARTYPOKER and MILLION. These differences do not cause a different overall impression. The distinctiveness of the trademarks relies on the combination of the terms PARTYPOKER, .COM and MILLION. The disputed domain name combines these elements as well and by changing the order of the last two elements a different character of the sign is not created. The public is unlikely to keep in mind the order of the last two elements of the trademarks and will recognize the trademarks in the domain name.

The Policy requires that the domain name be confusingly similar to a mark in which the Complainant has rights. It has been correctly pointed out by previous panels that rights short of ownership can satisfy this requirement in certain circumstances. The Complainant has produced documentary evidence that the owners of the trademarks PARTYPOKER.COM MILLION WPC and iGlobalMedia are subsidiaries to the Complainant and controlled by the Complainant and that the trademark owners have consented to the Complainant invoking their trademark rights in order to get the disputed domain name transferred to the Complainant. The Complainant must therefore be considered to have sufficient rights in the trademarks PARTYPOKER.COM MILLION for the purposes of this proceeding. The Panel finds that this requirement of the Policy, paragraph 4(a)(i)) has been satisfied.

B. Rights or Legitimate Interests

The Respondent does not use the disputed domain name with a particular website that belongs to him. Instead, the disputed domain name directs to the website “www.partypoker.com”, operated by Complainant’s subsidiary WPC. A contractual relationship between WPC and the Respondent is not apparent. Nothing in the record suggests that the Respondent is commonly known as “partypoker-million” or that the Respondent is apparently making a legitimate use of the disputed domain name. Furthermore, the Complainant certifies that it has not licensed or otherwise authorized the Respondent to include its trademarks within the body of a domain name registered in the latter’s name.

In light of these elements, the Panel is of the opinion that the Complainant has discharged its initial evidentiary burden under paragraph 4(a)(ii) of the Policy by making a prima facie case that the Respondent lacks rights or legitimate interests in the domain name. The evidentiary burden therefore shifts to the Respondent, which must then show its rights or legitimate interests in the disputed domain name in order to refute the prima facie case. The Respondent has made no such showing.

The Panel finds that the Respondent’s default in refuting the prima facie case made by the Complainant is sufficient to establish this element of the Policy.

C. Registered and Used in Bad Faith

The Panel finds that the Complainant has established this element in accordance with paragraph 4(b)(i) of the Policy for the following reasons:

The whois record of the disputed domain name lists the “domain servers” as: “THIS.DOMAIN-FOR-SALE.US” and “THAT.DOMAIN-FOR-SALE.US”. This entry may be indicative of the fact that the Respondent has registered the domain name for the primary purpose of selling it to Complainant’s affiliates or other holders of rights in the above-referenced marks. The Complainant’s trademarks have been used on the Internet since 2001, and applications for these trademarks have been filed in several countries well before the Respondent registered the disputed domain name. This , as well as the important similarity between these marks and the disputed domain name, justifies a strong inference that the Respondent was at all relevant times aware of the Complainant.

The Panel concludes from the foregoing that the Respondent’s registration and use of the disputed domain name were motivated by the hope of an economic advantage flowing from a confusion with the Complainant’s trademarks. The Panel also finds that the circumstances of the case would be consistent with a finding that the Respondent likely intended to sell the disputed domain name to the Complainant for valuable consideration in excess of his out-of-pockets costs directly related to the domain name.

 

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4 of the Policy and 15 of the Rules, the Panel orders that the domain name be transferred to the Complainant.

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Stefan Abel
Sole Panelist

Dated: June 23, 2006