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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Microgaming Software Systems Limited v. Private Whois Escrow Domains Private Limited/LAKSH INTERNET SOLUTIONS PRIVATE LIMITED.

Case No. D2008-0893

 

1. The Parties

Complainant is Microgaming Software Systems Limited of Douglas, Isle of Man, represented by Bowman Gilfillian Inc of Johannesburg, South Africa.

Respondent is Private Whois Escrow Domains Private Limited/LAKSH INTERNET SOLUTIONS PRIVATE LIMITED of Mumbai, Maharashtra, India.

 

2. The Domain Name and Registrar

The disputed domain name <fortuneloungemicrogaming.com> (the “Disputed Domain Name”) is registered with Lead Networks Domains Pvt. Ltd.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 11, 2008. On June 13, 2008, the Center transmitted by email to Lead Networks Domains Pvt. Ltd. a request for registrar verification in connection with the domain name at issue. The Registrar failed to respond to the Center’s request, so the Center followed-up with emails to the Registrar on June 18, 19, 24, 26, July 1, and 3, 2008. Finally, on July 4, 2008, the Registrar transmitted by email to the Center its verification response stating that the registrant was not the entity named in the Complaint (Private Whois Escrow Domains Private Limited) but instead identified the registrant as LAKSH INTERNET SOLUTIONS PRIVATE LIMITED and provided the relevant contact details. Accordingly, on July 9, 2008, the Center invited Complainant to submit an amendment to the Complaint, which Complainant sent to the Center on July 11, 2008. The Center verified that the amended 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 July 15, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was August 4, 2008. Respondent did not submit any Response. Accordingly, the Center notified the Respondent’s default on August 6, 2008.

The Center appointed Douglas M. Isenberg as the sole panelist in this matter on August 13, 2008. 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.

On August 27, 2008, the Center notified Panel Order No. 1 requesting additional information from Complainant regarding its rights to the trademark at issue. On September 2, 2008, the Center forwarded Complainant’s response to Panel Order No. 1 to the Panel.

 

4. Factual Background

Complainant states that it is “the exclusive licensee of a number of pending and registered trade marks consisting of or incorporating the word MICROGAMING... the proprietor of which is Microgaming Systems Anstalt.”1 Complainant further states that these trademarks, referred to hereafter as the “MICROGAMING Trademarks,” “cover, in general, computer software for games of chance, gaming or casino style gaming, entertainment, gaming and online casino management services.” In support thereof, Complainant provided copies of numerous certificates of registration for the MICROGAMING Trademarks, including U.S. Reg. No. 3,006,898 (first used in commerce on December 21, 1996; registered October 18, 2005).

Complainant further states that it “is authorised to provide, and in fact provides, amongst other things, online casino software and management systems under” the MICROGAMING Trademark. Complainant states that the MICROGAMING Trademark is “prominently displayed” in connection with more than 100 online casinos, including its website using the domain name <microgaming.com>, which receives more than 250,000 visitors annually.

Finally, Complainant states that The Fortune Lounge Group – “a leading brand of world-renowned online casinos and poker rooms [that] has been endorsed by self regulatory body, eCommerce and Online Gaming, Regulation and Assurance” – “has consented to the Complainant bringing this action against the Registrant” and “consent to the disputed domain name being registered in the name of the Complainant.” These statements are supported by a signed letter from Entertainment Networks Limited, the purported owner of the FORTUNE LOUNGE trademark.

The Disputed Domain Name was registered on November 24, 2007.

 

5. Parties’ Contentions

A. Complainant

In addition to the factual background set forth above, Complaint contends, inter alia, as follows:

- The Disputed Domain Name is identical or confusingly similar to the MICROGAMING Trademark because the MICROGAMING Trademark forms the dominant element of the Disputed Domain Name, and the combination of the word “Microgaming” with the words “Fortune Lounge” creates a domain name that cannot be anything but confusingly similar to the Complainant’s well-known MICROGAMING Trademark.

- Respondent has no rights or legitimate interests in respect of the Disputed Domain Name because Respondent “has no right to the use of the MICROGAMING trade marks, or trade marks confusingly similar to these trade marks, in the disputed domain name and has not received any license or consent, express or implied, to do so”; Respondent “has not been commonly known by the disputed domain name”; the Disputed Domain Name “points to a generic search engine website providing information about casino and gaming services and through which website competing and/or related goods and services to those of the Complainant can be accessed”; and Respondent failed to respond to a demand letter from Complainant.

- The Disputed Domain Name has been registered and is being used in bad faith because “[i]t is most likely that the Respondent was fully aware of the Complainant’s MICROGAMING trade mark rights and its reputation in the gaming and casino industry when registering the disputed domain name”; “the registration of the disputed domain name occurred nearly 13 years after the Complainant first commenced use of its MICROGAMING trade mark”; Respondent’s failure to reply to Complainant’s demand letter is “an adoption by silence of the material allegations made by the Complainant”; “[b]y associating the disputed domain name with a website promoting the goods and services of competitors to the Complainant, this further confirms that the registration and use of the disputed domain name is intentional and attempts to attract customers by creating confusion with the Complainant’s trade marks as to the source and endorsement of the Respondent’s website”; and “[t]his confusion is further compounded by the fact that the goods and services promoted on the Respondent’s website are those of the Complainant’s competitors and in no way approved by the Complainant.”

B. Respondent

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

 

6. Discussion and Findings

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

A. Identical or Confusingly Similar

Based upon the trademark registrations cited by Complainant, it is obvious that the MICROGAMING Trademark is a registered trademark. Complainant states that it is the exclusive licensee of the MICROGAMING Trademark and provides a document that it represents as supporting this statement.

“In most circumstances a licensee of a trademark… is considered to have rights in a trademark under the UDRP.” WIPO Overview of WIPO Panel Views on Selected UDRP Questions, paragraph 1.8. Further, in at least six previous decisions under the Policy, panels have found that Complainant has rights to the MICROGAMING Trademark. Microgaming Software Systems Limited v. Telecom Tech Corp., WIPO Case No. D2008-0894; Microgaming Software Systems Limited v. DomainsByProxy.com and BB1Webs, WIPO Case No. D2008-0870; Microgaming Software Systems Limited v. Sting Marketing Inc., Sting Marketing, WIPO Case No. D2008-0869; Microgaming Software Systems Limited v. WhoisGuard, WIPO Case No. D2008-0613; Microgaming Software Systems Limited v. Stefan Molleman, WIPO Case No. D2008-0157; and Microgaming Software Systems Limited v. E Net Marketing Ltd., WIPO Case No. D2007-0013.

Accordingly, the Panel finds for purposes of the Policy that Complainant has rights in the MICROGAMING Trademark.

As to whether the Disputed Domain Name is identical or confusingly similar to the MICROGAMING Trademark, the relevant comparison to be made is with the second-level portion of the Disputed Domain Name only (i.e., “fortuneloungemicrogaming”), as it is well established that the top level domain name (i.e., “.com”) should be disregarded for this purpose. In numerous previous decisions under the Policy, panels have found that a domain name consisting of two trademarks is nevertheless confusingly similar to one of the trademarks. See, e.g., Six Continents Hotels, Inc. v. Trasporto di Networ and Pro Intel, WIPO Case No. D2004-0246 (finding the domain name <crowneplazaramada.com> confusingly similar to Complainant’s CROWNE PLAZA trademark, even though the RAMADA trademark was owned by an unrelated entity, where Complainant obtained consent of the owner of the RAMADA trademark); Chevron Corporation v. Young Wook Kim, WIPO Case No. D2001-1142 (<chevron-texaco.com>); Pfizer, Inc. v. Martin Marketing, WIPO Case No. D2002-0793 (<pfizer-nascar.com>); and Sociйtй des Produits Nestlй SA v. Stuart Cook, WIPO Case No. D2002-0118 (<nestle-purina.com>, <nestle-purina.net>, <nestle-purina.org> and <nestlepurina.net>).

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

B. Rights or Legitimate Interests

Complainant alleges, inter alia, that Respondent has no rights or legitimate interests in respect of the Disputed Domain Name because Respondent “has no right to the use of the MICROGAMING trade marks, or trade marks confusingly similar to these trade marks, in the disputed domain name and has not received any license or consent, express or implied, to do so”; Respondent “has not been commonly known by the disputed domain name”; the Disputed Domain Name “points to a generic search engine website providing information about casino and gaming services and through which website competing and/or related goods and services to those of the Complainant can be accessed”; and Respondent failed to respond to a demand letter from Complainant.

Under the Policy, a complainant is required to make out a 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.

Accordingly, as a result of Complainant’s allegations and without any evidence of Respondent’s rights or legitimate interests in the Disputed Domain Name, the Panel is satisfied that 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, although Complainant does not allege with specificity which, if any, of the elements set forth in paragraph 4(b) exists in the present case, the Panel finds that bad faith exists pursuant to paragraph 4(b)(iv) of the Policy. As numerous decisions under the Policy have repeatedly held, websites that contain little more than links to competitors of a complainant intentionally attempt to attract, for commercial gain, Internet users to the website by creating a likelihood of confusion with the complainant’s trademark. “[W]here, as here, the links are apparently to competitive websites, especially with no indication that the links are not sponsored by or affiliated with the relevant trademark owner, then such activity indicates bad faith under the Policy.” Wal-Mart Stores, Inc. v. Whois Privacy Inc., WIPO Case No. D2005-0850.

Therefore, the Panel is satisfied that the Complainant has proven the third element required by 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 name <fortuneloungemicrogaming.com> be transferred to the Complainant.


Douglas M. Isenberg
Sole Panelist

Date: September 5, 2008


1 Complainant provided no support for this licensing arrangement in its Complaint. In response to Panel Order No. 1, Complainant provided a heavily redacted document that it represents provides Complainant with rights in and to the MICROGAMING Trademark. The Panel’s concern about Complainant’s rights in and to the MICROGAMING Trademark have been shared by previous panels, but the Panel here considers Complainant’s representations sufficient for purposes of the Policy. See, e.g., Microgaming Software Systems Limited v. Telecom Tech Corp., WIPO Case No. D2008-0894 (“Although the Complainant failed to admit in evidence a copy of the exclusive license agreement or details of the relevant trade mark registers, the Panel is prepared to accept the Complainant’s submission”).

 

Источник информации: https://internet-law.ru/intlaw/udrp/2008/d2008-0893.html

 

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