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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Mansion (Gibraltar) Limited, Provent Holdings Ltd. v. Randy Smithfield

Case No. D2007-0431

 

1. The Parties

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

The Respondent is Randy Smithfield, of Maputo, Mozambique.

2. The Domain Names and Registrar

The disputed domain names <freemansionpoker.net>, <mansionnetpoker.net>, <mansionpokerodds.net>, <mansionpokmer.net>, <mansionpomer.net>, <mansipnpoker.com> and <mansipnpoker.net> (the “Disputed Domain Names”) are registered with Fabulous.com.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 20, 2007. On March 22, 2007, the Center transmitted by e-mail to Fabulous.com a request for registrar verification in connection with the domain names at issue. On March 23, 2007, Fabulous.com transmitted by e-mail to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the Respondent. The Center verified that the Complaint together with the amendment to 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 5, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was April 25, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 30, 2007.

The Center appointed Douglas M. Isenberg as the sole panelist in this matter on May 11, 2007. 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 Rules, paragraph 7.

 

4. Factual Background

Complainants state the following, in relevant part:

- Mansion (Gibraltar) Limited is “a leading international online casino, poker, sportsbook and sports exchange gaming entertainment company” that “is licensed to operate an online casino, sportsbook and exchange gaming by the Government of Gibraltar”.

- Mansion (Gibraltar) Limited “has been operating a commercial online casino, poker, sportsbook and sports exchange gaming website at “www.mansion.com” and “www.mansionpoker.com” since August 2004”, which attracts more than 275,000 visitors each month.

- Mansion (Gibraltar) Limited “has been operating a free online poker gaming website at “www.mansionpoker.net” since November 2005”, which attracts more than 500,000 visitors each month.

- Provent Holdings Ltd. is the registered owner of 76 trademarks in numerous countries and geographic regions worldwide that consist of or contain the mark MANSION or MANSION SPEED POKER, registered on various dates from 2003 to 2006 (the “Mansion Trademarks”). In support of these registrations, Complainants provided copies of certificates of registration.

- Provent Holdings Ltd. “has licensed the use of the domain names ‘mansion.com’, ‘mansionpoker.com’, ‘mansionpoker.net’ and ‘speedpoker.tv’ to” Mansion (Gibraltar) Limited.

- Provent Holdings Ltd. has licensed the Mansion Trademarks to Mansion (Gibraltar) Limited.

The Disputed Domain Names were registered on the dates set forth below:

- <freemansionpoker.net>: July 25, 2006

- <mansionnetpoker.net>: August 30, 2006

- <mansionpokerodds.net>: July 25, 2006

- <mansionpokmer.net>: July 25, 2006

- <mansionpomer.net>: July 25, 2006

- <mansipnpoker.com>: June 11, 2006

- <mansipnpoker.net>: June 11, 2006

5. Parties’ Contentions

A. Complainants

Complainants contend, in relevant part, as follows:

- The Disputed Domain Names are identical or confusingly similar to the Mansion Trademarks because the Disputed Domain Names contain only “typographical changes or deliberate errors or generic terms introduced”.

- Respondent has no rights or legitimate interests in the Disputed Domain Names because, among other things, “Respondent has never used, or made preparations to use, the Domain Names in connection with bona fide offering of goods or services before the Respondent has any notice of the dispute”; “Complainants have never licensed or authorised the Respondent to use the name and trademark ‘MANSION’ or ‘MANSION POKER’”; Respondent has not been commonly known by the Domain Names, as Respondent “appears to be an individual named ‘Randy Smithfield’”; “Respondent is using the Domain Names to divert Internet users who are attempting to access the Complainant’s Websites or are searching for information regarding the Complainant’s Trademarks to the Websites, which feature directories and links to various products and services (some of which appear to be in direct competition with [Mansion (Gibraltar) Limited’s] businesses”.

- The Disputed Domain Names have been registered and are being used in bad faith because “Respondent is essentially a ‘typosquatter’ who has deliberate[ly] registered or acquired the Domain Names, being misleading variations and/or misspellings of the Complainants’ Trademarks to divert Internet users for the Respondent’s own commercial gain”.

B. Respondent

The Respondent did not reply to the Complainants’ contentions.

 

6. Discussion and Findings

Pursuant to the Policy, Complainants are required to prove the presence of each of the following three elements to obtain the relief they have requested: (i) the Disputed Domain Names are identical or confusingly similar to a trademark or service mark in which the Complainants have rights; and (ii) the Respondent has no rights or legitimate interests in respect of the Disputed Domain Names; and (iii) the Disputed Domain Names have been registered and are being used in bad faith. Policy, Paragraph 4(a).

However, before proceeding to the substantive issues of this case, the Panel first addresses the unusual fact that the Complaint was filed by two Complainants, rather than one. Although the Policy does not expressly prohibit multiple Complainants, the Policy and Rules refer only to a “Complainant”, in the singular, and the overwhelming majority of cases filed under the Policy certainly appear to have been filed by a single Complainant. However, multiple Complainants have been named in cases where, for example, two Complainants “are the co-registered owners” of relevant trademarks, Sociйtй Air France and Koninklijke Luchtvaart Maatschappij v. MIC, WIPO Case No. D2006-0437, or where the Complainants are “a group of related corporate entities” Media West-CPI, Inc. et al. v. Unasi, Inc., WIPO Case No. D2005-1336; see also Six Continents Hotels, Inc., Inter-Continental Hotels Corporation v. South East Asia Tours, WIPO Case No. D2004-0388; and Hunter Douglas Industries, BV, and Hunter Douglas Window Fashions, Inc., WIPO Case No. D2005-0460.

In this case, it appears from the Complaint as if one of the Complainants (Mansion (Gibraltar) Limited) is the operator of certain websites with domain names containing trademarks owned and licensed to it by the other Complainant (Provent Holdings Ltd.). The Panel finds, therefore, that naming multiple Complainants is acceptable in this case and, in addition, is consistent with a previous decision under the Policy involving the same two Complainants, Mansion (Gibraltar) Limited and Provent Holdings Ltd v. Gilmer Smith, WIPO Case No. D2006-1048.

A. Identical or Confusingly Similar

Based upon the numerous trademark registrations cited by Complainants, it is clear that Complainants have rights in the Mansion Trademarks.

As to whether the Disputed Domain Names are identical or confusingly similar to the Mansion Trademarks, the relevant comparison to be made is with the second-level portion of each of the Domain Names only (i.e., “freemansionpoker”, “mansionnetpoker”, “mansionpokerodds”, “mansionpokmer”, “mansionpomer”, “mansipnpoker” and “mansipnpoker”), as it is well-established that the top-level domain names (i.e., “.com” and “.net”) should be disregarded for this purpose. See, e.g., The Forward Association, Inc., v. Enterprises Unlimited, NAF Case No. FA0008000095491 (“[N]either the beginning of the URL (http://www.), nor the TLD (.com) have any source indicating significance. Those designations are merely devices that every Internet site provider must use as part of its address”); see also United States Patent and Trademark Office’s Trademark Manual of Examination Procedures (3d ed.) § 1215.02 (“neither the beginning of the URL (‘http://www.’) nor the TLD have any source-indicating significance”).

None of the Disputed Domain Names is identical to a trademark in which Complainants have rights, as the second-level portion of each of the Domain Names differs in some way from the Mansion Trademarks. However, Complainants need prove only that the Domain Names are “confusingly similar” to a mark in which Complainants have rights. The Panel agrees with the decision cited by the Complainants (and involving the Complainants) that “the domain names at issue are obtained from the trademarks, service marks and domain names registered and used by the Complainants in such a way as it would result from a typing error”. Mansion (Gibraltar) Limited and Provent Holdings Ltd v. Gilmer Smith, WIPO Case No. D2006-1048. Numerous other decisions under the Policy have reached similar conclusions.

Accordingly, each of the Disputed Domain Names is confusingly similar to the Mansion Trademarks, and the Panel is convinced that Complainants have proven the first element of the Policy.

B. Rights or Legitimate Interests

Complainants allege that Respondent has no rights or legitimate interests in the Disputed Domain Names because, among other things, “Respondent has never used, or made preparations to use, the Domain Names in connection with bona fide offering of goods or services before the Respondent has any notice of the dispute”; “Complainants have never licensed or authorised the Respondent to use the name and trademark MANSION or MANSION POKER”; Respondent has not been commonly known by the Domain Names, as Respondent “appears to be an individual named ‘Randy Smithfield’”; “Respondent is using the Domain Names to divert Internet users who are attempting to access the Complainant’s Websites or are searching for information regarding the Complainant’s Trademarks to the Websites, which feature directories and links to various products and services (some of which appear to be in direct competition with [Mansion (Gibraltar) Limited’s] businesses”.

Under the Policy, “a complainant is required to make out an initial prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, respondent carries the burden of demonstrating rights or legitimate interests in the domain name. If the respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the UDRP”. “WIPO Overview of WIPO Panel Views on Selected UDRP Questions, paragraph 2.1, “http://arbiter.wipo.int/domains/search/overview/index.html”.

Accordingly, as a result of Complainants’ allegations and without any evidence of Respondent’s rights or legitimate interests in the Disputed Domain Names, the Panel is satisfied that the Complainant has proven the second element of the Policy.

C. Registered and Used in Bad Faith

Whether a domain name is registered and used in bad faith for purposes of the Policy may be determined by evaluating four (non-exhaustive) factors set forth in the Policy: (i) circumstances indicating that the registrant has registered or the registrant 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 registrant’s documented out-of-pocket costs directly related to the domain name; or (ii) the registrant 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 registrant has engaged in a pattern of such conduct; or (iii) the registrant has registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, the registrant has intentionally attempted to attract, for commercial gain, Internet users to the registrant’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 registrant’s website or location or of a product or service on the registrant’s website or location. Policy, paragraph 4(b).

In this case, Complainants appear to allege that bad faith exists pursuant to paragraph 4(b)(iii) of the Policy. The Panel agrees with the decisions under the Policy cited by Complainants that Respondent’s actions constitute typosquatting that constitutes bad faith. E.g., Sanofi-aventis v. Elizabeth Riegel and Andrew Riegel, WIPO CaseNo. D2005-1045 (“[t]he use of typosquatting is itself evidence of bad faith”). The Panel further agrees with the decision under the Policy cited by Complainants that “[t]he Respondent’s bad faith is also evidenced by the fact that the Respondent offers information and links to Complainant’s competitors, which demonstrates that the Respondent is intentionally attempting to disrupt the business of the Complainant”. Southern Communications Services, Inc. d/b/a Southern LINC v. Henry Chan, WIPO Case No. D2004-0214. Numerous other decisions under the Policy have reached similar conclusions.

Therefore, the Panel is convinced that Complainant has proven the third element of the Policy.

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 <freemansionpoker.net>, <mansionnetpoker.net>, <mansionpokerodds.net>, <mansionpokmer.net>, <mansionpomer.net>, <mansipnpoker.com> and <mansipnpoker.net> be transferred to the Complainant.1


Douglas M. Isenberg
Sole Panelist

Dated: May 25, 2007


1 The remedy requested in the Complaint is merely that the domain names be transferred “to the Complainants” without specifying which Complainant, that is, Mansion (Gibraltar) Limited or Provent Holdings Ltd. Seeing no need to specify the transferee here, the Panel does not designate a transferee but instead defers to Mansion (Gibraltar) Limited or Provent Holdings Ltd. to decide for themselves which of them will receive the transfer of the domain names. See Hunter Douglas Industries, BV, and Hunter Douglas Window Fashions, Inc v. Erik Little., WIPO Case No. D2005-0460.

 

Источник информации: https://internet-law.ru/intlaw/udrp/2007/d2007-0431.html

 

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