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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Stan James (Gibraltar) Limited v. John Lecomber

Case No. D2007-0381

 

1. The Parties

The Complainant is Stan James (Gibraltar) Limited, Gibraltar, represented by Gaby Hardwicke Solicitors, United Kingdom of Great Britain and Northern Ireland.

The Respondent is John Lecomber, Liskeard, Plymouth, Cornwall, United Kingdom of Great Britain and Northern Ireland.

2. The Domain Name and Registrar

The disputed domain name <stanjames.mobi> is registered with Tucows.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 13, 2007. On March 14, 2007, the Center transmitted by email to Tucows a request for registrar verification in connection with the domain name at issue. On March 15, 2007, Tucows 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, 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 March 29, 2007. In accordance with the Rules, paragraph 5(a), the due date for response was April 18, 2007. The Response was filed with the Center on April 23, 2007.

The Center appointed Clive Duncan Thorne as the sole panelist in this matter on May 10, 2007. The Panel finds that it has been properly constituted. It has submitted the required Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.

On May 10, 2007, the Complainant requested that a letter written in response to the Response should be admitted. Having considered this request the Panel decided to refuse the request on the basis that it was able to reach a decision based upon the Complaint and Response without further submissions.

 

4. Factual Background

The Complainant’s parent company Stan James was founded in 1976. The Complainant Stan James (Gibraltar) UK Limited was founded in 1999 and online trading of its services commenced in 2003. The Complainant trades in the online betting industry. It markets its goods and services both domestically in the United Kingdom and internationally. The Complainant’s business is currently operational in the following countries: United Kingdom Czech Republic, Canada, Germany, Greece, Israel, Italy, Spain and Sweden.

The Complainant has trade mark applications for STAN, STANS and STAN JAMES at the European Community Trademark Office in Classes 9, 16 and 41. These applications were filed on July 1, 2005, and June 30, 2005 respectively. Copies of the applications are exhibited at Annex 2 to the Complaint. The trade mark application for SJ STAN JAMES and logo in Canada filed on September 1, 2005, for inter alia online betting and gambling services was according to an email from the Complainant’s representatives dated March 29, 2007 registered on March 15, 2007.

The Complainant submits that as a result of its trading activity it also has unregistered trade marks in relation to goods and services in the online betting industry. In particular the Complainant asserts that it uses the trade marks on promotional material, printed matter, advertisements, booklets and brochures. It uses the trade marks in television advertisements on Sky Sports satellite television channel in the United Kingdom, sponsoring (amongst others) the prestigious King George VI Chase at Kempton Racecourse, advertising in various print publication in the Racing Post and advertising on the ESPN Sports Network and in over 250 affiliate tenancy deals it has in place for online advertising. It advertises in various international gaming publications including Poker Europa and Poker Magazine. It also sends out weekly emails to current opt-in members and is running offline billboard bus stop advertisements for its casinos in Liverpool and Manchester. Its marketing strategy also incorporates popular viral games including “www.vivalavolley.com” which also makes use of its trade marks. It has a number of strategies in place across Europe including magazine advertisements, sponsorship of poker tournaments and advertising in shopping centres as well as a number of online strategies. The Complainant draws attention to a large number of domain names currently owned and maintained by the Complainant incorporating the suffix “stan” and “james”. In summary the Complainant uses the trademarks referred to above in marketing consisting of an annual budget of Ј5 million.

In its Response the Respondent sets out the circumstances in which it has registered and used the domain name in dispute. The Panel considers that in the circumstances it is best to set out the Respondent’s story:

“I have two friends who are proffessional poker players, 1) Vik Kanwar, 2) David Ruddling i enclose copies of their poker profiles taken from pokerpages.com as annexe 1 and 2. Their nicknames are David ‘Stan The Man’ Ruddling and Vik ‘James the Peach’ Kanwar.

“I have an affiliates deal with Focalclick which is part of Sun Poker i enclose copies of commisions paid to me and details of Focalclick as annexe 3.

“This in laymens terms means i get paid upto 45% commision on poker players i refer to Sun Poker.

“I also have a domain name pokerisbest.com since 2005 i enclose (annexe 4) a copy of contract (yet to be renewed)

“Quite simply after discussing this years 2007 World Series of Poker Championships in Las Vegas with Vik and Dave i thoght it would be great and interesting thing to follow them for their two weeks in Vegas recording the highs and lows of their trip, from the cards and nights out. Then after editing the two weeks down to the most interesting points and setting up a web site where people can see what they got up to. With all this in mind i thought a “.mobi” for the mobile phone web would be best and once interest on the site was got then visitors could be advised of “pokerisbest.com” site which would then recommend Sun Poker as the site to play on then receiving 45% commissions. Also if the stan and james clips take off on the mobile network then maybe a premium test message service for their best up and coming clips from other poker tournements.

“I cannot provide all correspondence between Vik Kanwar David Ruddling and myself over the past six months as much has been done by instant messaging and phones however i did send both a letter dated 23/november/2006 stating what we would do for the 2007 wsop, as at last years WSOP their was problems with the winner refusing to pay % to his partners. i enclose annexe 5.

“I have been enquiring about pricing for my web site however i have not decided who i am going to use yet.”

 

5. Parties’ Contentions

A. Complainant

Identical or Confusingly Similar

The Complainant submits:

The Respondent has registered a domain name which is clearly identical to the trademark of the Complainant which could cause confusion in the minds of potential customers looking to find the website of the Complainant.

That the Respondent has no rights or legitimate interest in respect of the domain name because it has never been commonly known either as an individual business or other organisation by the domain name in dispute.

The Respondent is not embarking on any kind of legitimate non-commercial or fair use of the domain name.

The Respondent’s domain name is at present not being used in competition with Stan James (Gibraltar) UK Limited but should it be used in the future it will cause confusion with the Complainant’s trademarks. It is reasonable to assume that the Respondent has deliberately registered the domain name with the intention of either selling it to the Complainant or to a third party for financial gain. This constitutes bad faith.

B. Respondent

The Respondent is using the domain name in connection with a bona fide offering of goods or services.

The Respondent has rights or legitimate interests in the domain name with regard to a bona fide service constituting advertising at the 2007 World Series Poker Championships.

The domain name has not been registered or been used in bad faith as alleged by the Complainant.

 

6. Discussion and Findings

A Identical or confusingly similar

The Panel is satisfied from the Complainant’s evidence that is has unregistered trade mark rights in the mark STAN JAMES as well as a registered trade mark right in STAN JAMES plus logo in Canada. The domain name in dispute is <stanjames.mobi>. The Panel is satisfied that the domain name in dispute is identical to the mark STAN JAMES. Accordingly the Complainant succeeds in this element.

B Rights or Legitimate Interests

The Complainant’s case (and the Complainant has the burden of proof) is that there is no evidence that the Respondent has been commonly known using the domain name in dispute and that on this basis it has no rights or legitimate interests.

The Respondent considers that it has rights and legitimate interests in the domain name as advertising at the 2007 Word Series of Poker Championships in order to “follow Stan the Man and James the Peach on stanjames.mobi”. It asserts to have made preparations, prior to notice any dispute, for using <stanjames.mobi> as a bona fide service.

The Complainant points out that the Respondent has never been known by or used the domain name as its business name. The Panel finds force in this view particularly when it considers the proposed use to be made by the Respondent as set out above. In the Panel’s view the use proposed by the Respondent is too remote. The use relates to two “friends” of the Respondent who are allegedly known by nicknames. No evidence is addressed of the use of these nicknames. Moreover the nicknames themselves bear no relation to the actual names of the “friends”. No evidence is given as to the assertion that they are both professional poker players. The fact that the registration of the domain name was thought to be a “great and interesting thing” does not assist in showing legitimate use.

In all the circumstances the Panel finds that the Complainant’s submissions are justified and the Respondent has not evidenced rights or legitimate interest in respect of the domain name.

The Panel therefore finds for the Complainant in relation to this element.

C Registered and Used in Bad Faith

The Complainant submits briefly that in registering the domain name the Respondent has registered a domain name that is clearly identical to the trademark of the Complainant and that this could cause confusion in the minds of potential customers looking to find the website of the Complainant. It rightly points out that the Respondent’s website is not at present being used but then submits that should the domain name be used in the future it will cause confusion with the Complainant’s trademarks. It submits that it is a reasonable assumption that the Respondent has deliberately registered a domain name with the intention of either selling it to the Complainant or to a third party for financial gain.

The Respondent maintains that it is preparing to use <stanjames.mobi> with a bona fide service, i.e. advertising at the World Series of Poker Championships in 2007. In the Panel’s view this is itself evidence of bad faith since the Respondent, being associated with betting activities and being based in the United Kingdom, clearly must have been aware of the Complainant’s rights and is preparing to use a confusingly similar domain name in relation to an activity similar to that of the Complainant. In the Panel’s view these factors point to use in bad faith. The Panel therefore finds for the Complainant.

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 <stanjames.mobi> be transferred to the Complainant.


Clive Duncan Thorne
Sole Panelist

Dated June 5, 2007

 

Источник информации: https://internet-law.ru/intlaw/udrp/2007/d2007-0381.html

 

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