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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

PartyGaming Plc., WPC Productions Limited, Electra Works Limited, iGlobalMedia Marketing (UK) Limited, WBC Productions (Gibraltar) Limited v. Samira Bilate

Case No. D2006-1005

 

1. The Parties

Complainants are PartyGaming Plc, WPC Productions Limited, ElectraWorks Limited, and WBC Productions (Gibraltar) Limited of Gibraltar, and iGlobalMedia Marketing (UK) Limited of London, United Kingdom of Great Britain and Northern Ireland, represented by Pattishall, McAuliffe, Newbury, Hilliard & Geraldson, United States of America.

Respondent is Samira Bilate, of Rio de Janeiro, Brazil.

 

2. The Domain Names and Registrar

The disputed domain names are <partibingo.com>, <particasino.com>, <parttbingo.com>, <parttcasino.com>, <partybing.com>, <partybingp.com>, <partybngo.com>, <partycasinp.com>, <partypoker5.com>, <partypoke5.com>, <patrybingo.com>, <patrycasino.com>, <pratybingo.com>, <pratycasino.com>, <prtybingo.com>, <wwwpartycasino.com>, and <wwwpartypokermillion.com> are registered with Go Daddy Software

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 7, 2006. On August 8, 2006, the Center transmitted by email to Go Daddy Software a request for registrar verification in connection with the domain names in dispute. On August 9, 2006, Go Daddy Software transmitted by email to the Center its verification response confirming that 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 Respondent of the Complaint, and the proceedings commenced on August 14, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was September 3, 2006. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on September 6, 2006. In reply, Respondent sent the Center an e-mail on September 6, 2006 notifying the Center that Respondent had unsuccessfully tried to cancel all disputed domain names almost one month before. The Center asked Respondent for the cancellation details, or to contact Go Daddy Software or Complainants for communication on the situation on September 8, 2006. Respondent did not reply to this request.

The Center appointed Alfred Meijboom as the sole panelist in this matter on September 18, 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.

 

4. Factual Background

Complainants all belong to the PartyGaming group of companies, who are one of the world’s leading online gaming companies and have been engaged in online gaming since 1997. They registered the domain name <partypoker.com> in 1999 and filed the following trademarks for gaming services, which trademark were all registered:

PARTYPOKER

Australia

April 12, 2005

PARTYCASINO

Australia

April 12, 2005

PARTYPOKER

Canada

July 24, 2001

PARTYPOKER

Canada

June 25, 2003

PARTYPOKER & design

Canada

July 24, 2001

PARTYPOKER & design

Canada

January 7, 2004

PARTYPOKER.COM MILLION

Canada

February 10, 2004

PARTYPOKER & design

Canada

June 25, 2003

PARTYBINGO

Canada

January 26, 2004

PARTYPOKER

Japan

February 18, 2005

PARTYPOKER.COM MILLION

Japan

February 18, 2005

PARTYBINGO

Japan

February 18, 2005

PARTYCASINO

Japan

December 21, 2004

PARTYCASINO

Mexico

April 12, 2005

PARTYPOKER

Switzerland

April 13, 2005

PARTYCASINO

Switzerland

April 13, 2005

PARTYPOKER & design

United States

December 10, 2003

PARTYPOKER.COM MILLION

United States

January 6, 2004

PARTYBINGO

Mexico

April 12, 2005

PARTYBINGO

Switzerland

April 13, 2005

PARTYPOKER

Benelux

December 2, 2005

PARTYBINGO

Benelux

December 2, 2005

PARTYCASINO

Benelux

December 2, 2005

PARTYPOKER & design

CTM

June 9, 2004

PARTYPOKER.COM MILLION

CTM

June 9, 2004

Complainant PartyGaming Plc is listed on the London Stock Exchange, and has a market capitalization in excess of USD 8 billion.

According to Complainants, the “www.partypoker.com” website has become the number one online poker site in the world. In connection with the “www.partypoker.com” website, Complainants have conducted an annual international poker tournament called “Partypoker.com Million” since 2001, which is widely promoted via the Internet and through print and television media. In 2003, Complainants launched the “www.partybingo.com” site, and in 2006 the “www.partycasino.com” website

Respondent registered the disputed domain names on the following dates:

<partybing.com>

December 2, 2003

<partybingp.com>

December 2, 2003

<partybngo.com >

December 2, 2003

<patrybingo.com>

December 2, 2003

<prtybingo.com>

December 2, 2003

<pratybingo.com>

December 8, 2003

<parttbingo.com>

January 11, 2004

<partypoker5.com>

February 25, 2004

<partypoke5.com>

March 7, 2004

<wwwpartypokermillion.com>

March 7, 2004

<partibingo.com>

December 25, 2004

<particasino.com>

December 25, 2004

<partycasinp.com>

December 25, 2004

<patrycasino.com>

December 25, 2004

<wwwpartycasino.com>

December 25, 2004

<parttcasino.com>

January 9, 2005

<pratycasino.com>

January 9, 2005

The disputed domain names linked to commercial websites providing online gaming services, which did not originate from Complainants. Presently, the disputed domain names show a blank page.

 

5. Parties’ Contentions

A. Complainants

Complainants registered the domain name <partypoker.com> on August 19, 1999. In July 2001, Complainants filed an application with the United States Trademark Office and with the Canadian Trademark Office to register the trademark PARTYPOKER. In July 2001, Complainants also launched the “Partypoker” website providing online poker gaming services at “www.partypoker.com”. That website has since become the number one online poker site in the world. The “Partypoker” website often has more than 100,000 players online simultaneously during peak times, and has more than six million total registered players. In 2005, the “Partypoker” website generated revenues in excess of USD 859 million.

In connection with the “Partypoker” website, Complainants have conducted an annual international poker tournament called “Partypoker.com Million” since 2001. The “Partypoker.com Million” is widely promoted via the Internet and through print and television media.

Due in part to the early success of the “Partypoker” website, Complainants expanded their use of the inherently distinctive “PARTY” portion of the PARTYPOKER mark. Thus, Complainants began to use and seek trademark registration for a variety of marks composed of the word PARTY followed by various gaming- or gambling-related terms. Complainants now own a PARTY-based family of marks.

In 2003, Complainants expanded into the market for online bingo when it launched its “www.PartyBingo.com” site. Complainants site offers players a variety of bingo-style games, slots, and video poker.

In early 2006, Complainants launched their PartyCasino site, which offers users the option to play numerous different casino games. The launch of the PartyCasino site is also part of Complainants’ attempts to integrate its existing (and future) sites to provide players with a single point of access and single player account facilities.

Complainants, their “Partypoker” website, and their family of PARTY marks have been the subject of extensive advertising and promotion, including television and print media advertising, and has received substantial media coverage. As a result of Complainants’ long and extensive use, advertising, promotion and public recognition, the inherently distinctive PARTYPOKER mark has become famous, and their PARTY family of marks has become well-known worldwide, and represents most valuable goodwill owned by Complainants.

According to the Policy, paragraph 4(a), in order to succeed in this proceeding and obtain the transfer of the disputed domain names, Complainants are required to prove that the following three elements are met:

(i) the disputed domain names are identical or confusingly similar to a trademark or service mark to which Complainants have rights; and

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

(iii) the disputed domain names were registered and is being used in bad faith.

Complainants made the following assertions with respect to these elements.

(i) The disputed domains name are identical or confusingly similar to the trademarks in which Complainants have rights.

Complainants own the marks PARTYPOKER, PARTYPOKER.COM MILLION, PARTYBINGO, and PARTYCASINO by virtue of long and extensive worldwide use, and ownership of trademark registrations for the marks in various countries. Complainants have also established a family of PARTY marks through its use and registration of, and applications to register, various marks consisting of the word PARTY followed by various gaming- or gambling-related terms.

All of the disputing domain names are nearly identical or confusingly similar with Complainants’ PARTYPOKER, PARTYPOKER.COM MILLION, PARTYBINGO, or PARTYCASINO marks.

The domain name <partypoker5.com> is confusingly similar to Complainants’ PARTYPOKER mark because it incorporates the entirety of the PARTYPOKER mark.

The domain name <wwwpartypokermillion.com> is confusingly similar to Complainants’ PARTYPOKER.COM MILLION mark. Respondent has incorporated the entirety of Complainants’ mark, but has merely switched the order of the “.com” and “million” elements. The addition of the letters “www” to the front of the mark does nothing to distinguish the domain name from Complainants’ mark. In fact, the addition of the “www” prefix is a common practice of “typo-squatters” who try to take advantage of the fact that Internet users may fail to insert a period between the World Wide Web prefix, and the remainder of the domain name.

The remaining disputed domain names are all further examples of typo squatting. Respondent has merely taken Complainants’ famous PARTYPOKER, PARTYBINGO, and PARTYCASINO marks and slightly misspelled them to take advantage of common typographical mistakes made by Internet users.

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

Respondent is not generally known by the disputed domain names, and has not acquired any trademark or service mark rights in that name or mark.

Complainants have not licensed or otherwise permitted Respondent to use their marks in connection with the websites located at the disputed domain names.

Respondent uses the disputed domain names for websites that feature numerous links to various commercial websites providing online gaming services in competition with Complainants. Thus, Respondent has registered and used the disputed domain names to unlawfully divert and siphon off visitors seeking Complainants’ websites. Respondent’s use of the disputed domain names for such purposes is not a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the domain names.

(iii) the Domain Name was registered and is being used in bad faith.

It is apparent that the disputed domain names are deliberately used for commercial gain to attract Internet users to Respondent’s website based on a likelihood of confusion with Complainants’ marks.

Respondent acquired and began making commercial use of the disputed domain names long after Complainant’s adoption and use of the corresponding marks, and after Complainant’s filed an application for registration of such marks or obtained trademark registration..

The widespread use and fame of the PARTYPOKER mark in the gaming industry, the development of a family of PARTY marks, the inherent distinctiveness of the marks, and Complainants’ prior domain name registrations and trademark applications, lead to the necessary conclusion that Respondent registered and used the disputed domain names with actual knowledge of Complainants’ rights.

There is no plausible reasons for Respondent’s selection of the disputed domain names other than as a deliberate attempt to profit unfairly from confusion with Complainants’ marks. The fact that Respondent registered common misspellings of Complainants’ PARTYPOKER, PARTYPOKER.COM MILLION, PARTYBINGO and PARTYCASINO marks is further evidence that Respondent registered and is using the disputed domain names in bad faith.

B. Respondent

Immediately after the Center sent the Notification of Respondent Default on September 6, 2006 Respondent sent that an e-mail to the Center, which reads “I had cancelled all domains almost 1 month ago. I don’t know what happened with Godaddy. I will contact again with Godaddy”.

Respondent did not reply to Complainants’ contentions.

 

6. Discussion and Findings

Complainants requested the Panelist to order the disputed domain names to be transferred to Complainant PartyGaming Plc. Pursuant to the Policy, paragraph 4(a), such order shall be granted if Complainants successfully prove the three elements as discussed below.

A. Identical or Confusingly Similar

The Panel finds that all disputed domain names are similar to Complainants’ trademarks as follows:

<partybing.com>

PARTYBINGO

<partybingp.com>

PARTYBINGO

<partybngo.com >

PARTYBINGO

<patrybingo.com>

PARTYBINGO

<prtybingo.com>

PARTYBINGO

<pratybingo.com>

PARTYBINGO

<parttbingo.com>

PARTYBINGO

<partypoker5.com>

PARTYPOKER

<partypoke5.com>

PARTYPOKER

<wwwpartypokermillion.com>

PARTYPOKER.COM MILLION

<partibingo.com>

PARTYBINGO

<particasino.com>

PARTYCASINO

<partycasinp.com>

PARTYCASINO

<patrycasino.com>

PARTYCASINO

<wwwpartycasino.com>

PARTYCASINO

<parttcasino.com>

PARTYCASINO

<pratycasino.com>

PARTYCASINO

In comparison with the relevant trademarks of Complainants, most of the disputed domains contain obvious typographical errors, which do not make the domain name result in a new term, nor alter the overall impression of the domain names, and are consistent with clear cases or typosquotting.

The domain names <wwwpartypokermillion.com> and <wwwpartycasino.com> should equally be regarded as containing obvious typographical errors. The use of the first three letters “www” in these domain names is clearly used to take advantage of a commonly made typographical error of an Internet user who missed the dot between the prefix “www”, which represents a site on the world wide web, and the domain name. It does, therefore, not change the confusing similarity between domain name and the relevant trademarks. Nor does the changed order of the trademark PARTYPOKER.COM MILLION in the domain name <wwwpartypokermillion.com>, as the public is unlikely to keep in mind the order of the last two elements of the trademark and will in likelihood recognize and be confused by the trademark in the domain name (PartyGaming Plc v. Axel Brown, WIPO Case No. D2006-0471).

The <partypoker5.com> and <partypoke5.com> domain names have an additional number “5” added to the trademark PARTYPOKER, and in the case of the latter the final letter “r” in the trademark has been excluded. Both domain names are confusingly similar to the PARTYPOKER trademark, and are obvious choices for typosquatting (noting in particular the proximity of the number “5” to the letter “r” on a keyboard). This does not alter the similarity between domain name and trademark.

As all disputed domain names are similar to Complainants’ respective trademarks as listed above, and none create distinct overall impression, but rather take advantage of obvious typographical errors made by Internet users, the Panel finds the disputed domain names are confusingly similar to Complainants’ trademarks.

Therefore, Complainants successfully proved the first element of paragraph 4(a) of the Policy.

B. Rights or Legitimate Interests

Complainants must show prima facie evidence that Respondent has no rights or legitimate interests in the disputed domain names. If Complainants succeed, the burden of proof is shifted to Respondent (e.g. Dow Jones & Company, Inc., (First Complainant) and Dow Jones LP (Second Complainant) v. The Hephzibah Intro-Net Project Limited (Respondent), WIPO Case No. D2000-0704.)

Complainants asserted that Respondent is not generally known by the disputed domain names, and was not licensed or otherwise authorized by Complainants to register and use the disputed domain names. The Panel finds this convincing as the contents of the website under the disputed domain names does not mention Respondent’s name, or even suggest that the websites were operated by a party whose name(s) are the same as the disputed domain names, whereas the websites link to commercial online gaming sites which obviously compete with Complainants’ websites.

Further, in paragraph 6.A of this decision, the Panel found that the disputed domain names were obvious examples of typo squatting, and thus attempting to take advantage of Internet users misspelling Complainants’ trademarks in domain names. Such use of domain names cannot be regarded bona fide as required by the Policy, paragraph 4(c)(i) or (iii) (see also PartyGaming Plc v. Lewis Clipper, WIPO Case No. D2006-0457).

Respondent choose not to respond to the Complaint, but only sent an e-mail to the Center after it was in default to file a Response that she had instructed the registrar to cancel the disputed domain names. Given the fact that Respondent must have read Complainants’ contentions yet elected not to contest these the Panel infers from Respondent’s e-mail of September 6, 2006 to the Center that Complainants’ contentions are undisputed and probably correct.

Therefore, the Panel finds Complainants have successfully proved the second element of paragraph 4(a) of the Policy.

C. Registered and Used in Bad Faith

According to paragraph 4(b)(iv) of the Policy, the following circumstances if found by a Panel to be present shall be evidence of bad faith that a respondent, by the use of the disputed domain names “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 [its] website or location or of a product or service on [its] website or location”.

The disputed domains names consist of obvious misspellings of the trademarks of Complainants. In the Panel’s mind there cannot be another reason for Respondent’s behavior than that she meant to mislead Internet users into believing that they have used Complainants’ domain name, thereby redirecting internet users to Respondent’s websites for profit. In effect, Respondent appears to be intentionally free-riding in effect on the fame of complainant’s trademarks.

The websites under the disputed domain names further offered the Internet user direct access to online gaming. The homepage of the site under the disputed domain names which contain the term “poker” or misspellings thereof read “you can play online poker games in any of our Internet poker rooms, with big money at party poker or the starluck casino’s”. Most of the other websites under the disputed domain names advised the visitor on their homepage that it makes the relevant domain name “the best resource (..) on the web”. The home page of the websites under all the disputed domain names linked to online gaming websites.

It is therefore clear that Respondent, at Complainant’s expense, registered and used the disputed domain names in order to attract Internet users with Complainants’ trademarks for her own benefit, and thus acted in bad faith.

Therefore, the Panel finds Complainants have successfully proved the third and last element of paragraph 4(a) of the Policy.

 

7. Decision

For all the foregoing reasons, in accordance with the Policy, paragraphs 4(i), and the Rules, paragraph 15, the Panel orders that the domain names <partibingo.com>, <particasino.com>, <parttbingo.com>, <parttcasino.com>, <partybing.com>, <partybingp.com>, <partybngo.com>, <partycasinp.com>, <partypoker5.com>, <partypoke5.com>, <patrybingo.com>, <patrycasino.com>, <pratybingo.com>, <pratycasino.com>, <prtybingo.com>, <wwwpartycasino.com>, and <wwwpartypokermillion.com> be transferred to Complainant.


Alfred Meijboom
Sole Panelist

Dated: October 6, 2006

 

Источник информации: https://internet-law.ru/intlaw/udrp/2006/d2006-1005.html

 

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