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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Mansion (Gibraltar) Limited and Provent Holdings Ltd v. Gilmer Smith

Case No. D2006-1048

 

1. The Parties

The Complainants are Mansion (Gibraltar) Limited, Gibraltar, United Kingdom of Great Britain and Northern Ireland and Provent Holdings Ltd, Tortola, British Virgin Islands, United Kingdom of Great Britain and Northern Ireland, represented by Rajah & Tann, Singapore.

The Respondent is Gilmer Smith, Pahrump, Nevada, United States of America.

 

2. The Domain Names and Registrar

The disputed domain names:

<mansionopker.net>

<mansionpokee.net>

<mansionspokee.net>

<mansionspokert.net>

are registered with Fabulous.com.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 18, 2006. On August 18, 2006, the Center transmitted by email to Fabulous.com a request for registrar verification in connection with the domain names at issue. On August 21, 2006, Fabulous.com 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 proceeding commenced on August 30, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was September 19, 2006. The Respondent did not submit any response within the due date. Accordingly, the Center notified the Respondent’s default on September 21, 2006.

The Center appointed Nicoletta Colombo as the sole panelist in this matter on September 29, 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.

When the Center notified the Respondent on September 29, 2006 the Notification of Appointment of the Administrative Panel, the Respondent, in the name of Lilian Smith, replied showing lack of interest and respect in the proceeding.

 

4. Factual Background

The following uncontested facts are found by the Panel and established as true.

The 1st Complainant, Mansion (Gibraltar) Limited, is licensed to operate online casino, sports book and exchange gaming by the Government of Gibraltar.

The 1st Complainant has been operating commercial websites providing online casino, poker and other sports exchange gaming since August 2004 at “www.mansion.com” and “www.mansionpoker.com”. These websites have more than 275,000 monthly contacts.

The 1st Complainant has been operating free online poker gaming at “www.mansionpoker.com” since November 2005; this website has more than 500,000 monthly contacts. The 1st Complainant has also been operating the free online poker gaming website “www.speedpoker.com” since August 2005; this website has more than 50,000 monthly contacts.

The 2nd Complainant, Provent Holdings Ltd, holds the domain names <mansion.com>, <mansionpoker.com>, <mansionpoker.net> and <speedpoker.tv> and is the registered owner of several trademarks like MANSION, MANSION & M DEVICE, MANSIONS & M DEVICE and MANSION SPEED POKER.

The 2nd Complainant has licensed the use of the above listed domain names and Registered Trademarks to the 1st Complainant.

The above listed Registered Trademarks are displayed clearly on the 1st Complainant websites <mansion.com>, <mansionpoker.com>, <mansionpoker.net> and <speedpoker.tv>. The 1st Complainant is also one of the main sponsors of the well known Football Team Tottenham Hotspurs Football Club, and the trademark MANSION & M DEVICE is present on the shirts of the players in season 2006/2007 and on the club’s website, “www.tottenhamhotspur.com”.

In January 2006, the 1st Complainant was involved in the organization of a poker tournament entitled “MANSIONPoker.net Speed Poker 2006 Asia Pacific Championship”, which was filmed and broadcasted on the Fox Sports Network in April and May 2006. During the televised series, the Complainant’s trademark was continually advertised. The total number of persons who viewed the program is in the range of 1,319,738,000.

Another similar event was broadcasted on Discovery Channel on September 10, 2005. A series of televised poker tournaments called “MANSIONPoker.net Poker Dome Challenge” will be broadcasted in Fox Sports Network and has already been publicized.

The 1st Complainant also produces paraphernalia with the “MANSIONPoker.net” logo.

The disputed domain names:

<mansionopker.net>

<mansionpokee.net>

<mansionspokee.net>

<mansionspokert.net>

have been registered in the name of the Respondent between April 3, 2006 and April 20, 2006.

 

5. Parties’ Contentions

A. Complainant

The Complainants contend that each of the three elements specified in paragraph 4(a) of the Policy are applicable to the domain names subject of this dispute.

In relation to element (i) of paragraph 4(a) of the Policy, the Complainants contend that the domain names in dispute are simply identical or confusingly similar to the Complainant’s Trademarks.

The Complainants contend that, based on various WIPO rulings, the gTLD (generic Top Level Domain) identifier is to be disregarded in evaluating the similarity between domain names, and observe that the Respondent’s domain names are merely misspelling of the Complainant’s “mansionpoker” registered website.

The Complainants also contend that they have rights in the trademarks MANSION, MANSION & M DEVICE, MANSIONS & M DEVICE and MANSION SPEED POKER, in that their trademarks are registered, well known and widely publicized.

In relation to element (ii) of paragraph 4(a) of the Policy, the Complainants contend that the Respondent has no rights or legitimate interests in respect to the domain names.

The Respondent has never used or made preparation to use the domain names at dispute in connection with bona fide offerings of good and services.

The Respondent registered the domain names in dispute on April 2006, in conjunction with the broadcast in the USA on Fox Sports Network of “MANSIONPoker.net Speed Poker 2006 Asia Pacific Championship”.

The Respondent’s sites simply relate to other websites offering products similar to those of the Complainants, but that are not operated by, related to, or licensed by the Complainant itself.

In relation to element (iii) of paragraph 4(a) of the Policy, the Complainant contends that evidence of bad faith registration and use is established by the following circumstances:

The Complainant has never authorized the Respondent to use or register its trademarks, or to seek the registration of any domain names incorporating its trademarks.

The Respondent is clearly using the domain names at dispute to divert users which are trying to access the Complainant’s websites and that may misspell that Complainant’s website, re-directing them to websites selling products or services similar and possibly competing with the Complainant’s.

The Respondent is likely deriving commercial benefits from these diversions and has stated that it is willing to sell at least one of the domain names at issue.

It is submitted that the Respondent is a “typosquatter” who has deliberately registered domain names which are a misspelling of the Complainant’s trademarks in order to divert Internet users for the Respondent’s own commercial gain, and that typosquatting is recognized as an indicator of bad faith.

The Complainants request the Panel to transfer the disputed domain names to them.

B. Respondent

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

 

6. Discussion and Findings

A. Identical or Confusingly Similar

The domain names at issue are a misspelling of the trademarks and domain names of the Complainant.

It is worth noting that the domain names at issue are obtained from the trade marks, service marks and domain names registered and used by the Complainants in such a way as it would result from a typing error.

The first domain name at issue, <mansionopker.net> is derived from the Complainants’ domain name <mansionpoker.net> by swapping “o” and “p” in the word “poker”; this would be a very common typing mistake as strokes “o” and “p” are side by side in the Qwerty keyboard. Similarly, the second domain name <mansionpokee.net>, is obtained by substituting the end “r” in “poker” with an “e”, which is also next to the “r” in Qwerty keyboard. The third domain name adds an “s” before the word “poker” which is an easy mistake for a customer not certain of the precise name of the Complainant’s website Finally, the fourth domain name adds a “t” after the word “poker”, again an easy typo given that “t” is next to “r” on the keyboard.

It is evident that the contested domain names differ from the Complainants tradenames servicemarks and domain names by one letter and each letter is adjacent on the keyboard to the corresponding letter in Complainants’ trademark and servicemarks and domain names, and this circumstance supports the conclusion that the Respondent registered the contested domain names in order to engage in typosquatting. There are several WIPO UDRP decisions which state that in determining similarity between a trademark and a domain name the difference of one letter is not enough to avoid a confusing similarity. (See e.g., TPI Holdings, Inc. v. LaPorte Holdings, WIPO Case No. D2006-0235; Sanofi-aventis v. Elizabeth Riegel and Andrew Riegel, WIPO Case No. D2005-1045; Go Daddy Software, Inc. v. Daniel Hadani, WIPO Case No. D2002-0568).

Moreover, when analyzing the identity or similarity, the suffix, in this case “.net”, should not be considered because it is a necessary component of the domain name and does not give any distinctiveness. (See e.g., Crйdit Industrile et Commercial SA v. Name Privacy, WIPO Case No. D2005-0457).

There is no doubt that the domain names <mansionopker.net>, <mansionpokee.net>, <mansionspokee.net>, <mansionspokert.net> are confusingly similar to the trademarks and service marks of the Complainants. Therefore, the Panel finds that Complainants have satisfied the first element of the Policy.

B. Rights or Legitimate Interests

The Respondent has not filed any response in this case except a short reply when the Center notified the Respondent on September 29, 2006, of the Notification of Appointment of the Administrative Panel, showing lack of interest and respect in the proceeding.

There is no indication in the case file that the Respondent has rights or legitimate interests in the domain name. See paragraph 4(c) of the Policy.

Moreover, the Complainants have not licensed or otherwise permitted or authorized the Respondent to use its trademarks or service marks, or to apply for or to use the domain names incorporating the said marks.

Under these circumstances, the Panel finds that the Complainants have satisfied the second element of the Policy.

C. Registered and Used in Bad Faith

Based on the evidence presented by the Complainants, the Panel determines that the Respondent registered and used the disputed domain names in bad faith.

As sufficient evidence of registration in bad faith, the Panel finds that the Respondent registered the contested domain names most probably with knowledge of the Complainants’ rights. Only someone who was familiar with the Complainants’ trademarks service marks and domain names would have registered such confusingly similar domain names.

The fact that at the same time when the domain names were registered, the Complainants had a large audience and publicity in the TV series broadcast, is also indicative of the Respondent’s bad faith.

There is no information as to the business activities of the Respondent that would justify the use of the contested domain names, nor is there evidence of any rights or legitimate interest in said domain names by the Respondent.

Moreover, it is proven that the Respondent intentionally misspelled the Complainants’ trade and service marks to attract Internet users who intend to visit the Complainants’ domain names, but make a typosquatting error, in order to generatr traffic for the Respondent’s own commercial purposes. (See e.g., TPI Holdings, Inc. v. LaPorte Holdings, WIPO Case No. D2006-0235; Crйdit Industrile et Commercial SA v. Name Privacy, WIPO Case No. D2005-0457; Sanofi-aventis v. Elizabeth Riegel and Andrew Riegel, WIPO Case No. D2005-1045; Go Daddy Software, Inc. v. Daniel Hadani, WIPO Case No. D2002-0568).

Taken together with the fact that the Respondent has not filed any Response in this proceeding, the Panel believes that the Complainants have demonstrated that the contested registrations were made and are being used in bad faith.

 

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 names,<mansionopker.net>, <mansionpokee.net>, <mansionspokee.net>, <mansionspokert.net> be transferred to the Complainants.


Nicoletta Colombo
Sole Panelist

Dated: October 13, 2006

 

Источник информации: https://internet-law.ru/intlaw/udrp/2006/d2006-1048.html

 

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