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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Microgaming Software Systems Limited v. Telecom Tech Corp.

Case No. D2008-0894

 

1. The Parties

The Complainant is Microgaming Software Systems Limited, Isle of man, United Kingdom of Great Britain and Northern Ireland, represented by Bowman Gilfillan Inc., South Africa.

The Respondent is Telecom Tech Corp., Panama City, Panama.

 

2. The Domain Name and Registrar

The Disputed Domain Name <riverbellemicrogaming.com> is registered with Name.com LLC.

 

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 Name.com LLC a request for registrar verification in connection with the Domain Name at issue. On June 13, 2008, Name.com LLC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. 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 June 20, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was July 10, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 11, 2008.

The Center appointed Alistair Payne as the sole panelist in this matter on July 16, 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.

 

4. Factual Background

The Complainant is Microgaming Software Systems Limited, a company duly incorporated in accordance with the laws of the Isle of Man. The Complainant asserts that it is the exclusive licensee of a number of pending and registered trade marks consisting of or incorporating the word “microgaming” in various jurisdictions including the United States of America (“US”), United Kingdom of Great Britain and Northern Ireland (“UK”), European Union (“EU”), Canada and Australia. The proprietor of the trade marks is Microgaming Systems Anstalt. The trade marks cover, in general, computer software for games of chance, casino style gaming, entertainment, gaming and online casino management services.

The Complainant is seeking the transfer of the Disputed Domain Name.

The Respondent is Telecom Tech Corp. Under the Disputed Domain Name, the Respondent offers a generic search engine website providing information about casino and gaming services.

 

5. Parties’ Contentions

A. Complainant

The Complainant states that it was founded in 1994 and developed and released the world’s first true online casino software. Its software is currently utilised by more than 100 online casinos. The websites of these online casinos collectively receive in excess of 3 million visitors each month. The Complainant asserts that the MICROGAMING trade marks are very well-known in relation to online casinos and gaming related software.

The Complainant asserts that the Disputed Domain Name wholly incorporates the Complainant’s trade mark MICROGAMING. The Complainant further states that RIVER BELLE is a trade mark owned by Stanworth Development limited in relation to the River Belle Online Casino and the “www.riverbelle.com” gaming site is driven by the Complainant’s software. The Complainant argues that Microgaming is the dominant element of the Disputed Domain Name and given the relationship that exists between the Complainant and Stanworth Development Limited, the Disputed Domain Name is confusingly similar to the Complainant’s MICROGAMING trade mark.

The Complainant argues that the Respondent does not have any rights or legitimate interests in the Disputed Domain Name. The Complainant contends that the Respondent has never been known by the Disputed Domain Name and that it has not used the Disputed Domain Name in connection with a bona fide offering of goods or services.

The Complainant contends that the Disputed Domain Name was registered and is being used in bad faith. The Complainant asserts that it has a long established reputation in the use of its MICROGAMING trade marks in relation to online gaming and casino services and has been using these trade marks in the course of trade since its inception in 1994. The Complainant believes it likely that the Respondent was fully aware of the Complainant’s trade mark rights and its reputation when registering the Disputed Domain Name. The Complainant also states that the Disputed Domain is not the only name which the Respondent can use to describe its business.

Furthermore, the Complainant states that the registration of the Disputed Domain Name occurred nearly 14 years after the Complainant’s first use of its MICROGAMING trade marks.

B. Respondent

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

 

6. Discussion and Findings

The Respondent has not filed a Response to the Complaint. Pursuant to paragraph 14(a) of the Rules, the Panel will proceed to a decision on the Complaint in the absence of a Response from the Respondent.

Notwithstanding the fact that the Respondent has not filed a Response to the Complaint, it is still necessary for the Complainant, if it is to succeed, to prove each of the three elements referred to in paragraph 4(a) of the Policy, namely that:

(i) the Disputed Domain Name is identical or confusingly similar to a trade mark in which the Complainant has rights; and

(ii) the 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.

The Panel will proceed to establish whether the Complainant has discharged the burden of proof in respect of each of the three elements referred to in paragraph 4(a) of the Policy. The Panel also notes that pursuant to paragraph 14(b) of the Rules, the Panel may draw such inferences as it considers appropriate in the absence of a response from the Respondent.

A. Identical or Confusingly Similar

The Complainant asserts that it is the exclusive licensee of a number of pending and registered trade marks containing the word “microgaming” in various jurisdictions including the US, UK, EU, Canada and Australia. 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. The Complainant has demonstrated an extensive use of the trade marks and that it has developed a substantial reputation in relation to online casino and gaming related software.

In order to satisfy the requirements of paragraph 4(a)(i) of the Policy, the Complainant contends that the Disputed Domain Name is confusingly similar to the Complainant’s trade marks. The Panel notes that the Disputed Domain Name incorporates the Complainant’s MICROGAMING mark in its entirety, proceeded by the word “riverbelle”. The Panel further notes that the website “www.riverbelle.com” is a widely-known online casino and that the RIVERBELLE mark has extensive prior use and numerous trade mark registrations. The Panel also accepts the Complainant’s assertions that both marks have a well established reputation in the online gaming industry.

The main issue for the Panel to determine is whether a domain name which incorporates two distinct marks can be confusingly similar to either one. In reaching a conclusion the Panel is mindful of previous UDRP panel decisions.

In Time Warner Inc. and EMI Group plc v. CPIC Net, WIPO Case No. D2000-0433, the respondent registered various domain names containing variations of the complainant’s trade marks, e.g. <warneremi.org> and <emiwarner.org>, prior to their much publicized merger. In this decision the panel referred to the “overall impression left by the domain name which suggested that confusion could result. In an ICANN dispute with a similar factual situation, EFG Bank European Financial Group S.A. v. Jacob Foundation, WIPO Case No. D2000-0036, paragraph 6(b)(i), the panel found that dissimilarities in the registered domain names and the complainant trademark did not preclude a finding of likelihood of confusion when “the difference was not apt to influence the overall impression left by the domain name.”

The Panel also noted that there is an already established commercial relationship between Microgaming and the Riverbelle online casino. The Panel notes that this element has been present in previous WIPO panel decisions in this regard. In Alstom, Bouygues v. Webmaster, WIPO Case No. D2008-0281, the disputed domain name <bouyguesalstom.com> contained both complainants’ trade marks in their entirety. In this case, both companies had signed a framework agreement for operational and commercial cooperation. The panel found in favour of the complainants as “the domain name wholly incorporates the Complainants’ trademarks” and is therefore confusingly similar to both trade marks. A similar decision was reached in S.P.A., Fila Sport S.P.A., v. Classic Jack, WIPO Case No. D2003-0085. In this case, Fila were a sponsor of Ferrari and the Panel found that the disputed domain names <ferrari-fila.com> and <ferrarifila.com> infringed both the complainants’ registered trade marks.

In the 2008 decision, MasterCard International Incorporated v. Abadaba S.A., Administrador de dominios, WIPO Case No. D2008-0325, the disputed domain name <chasemastercard> incorporated the marks of two well known financial institutions. In this decision, the panel held that:

“A domain name containing two trade marks of different entities does not mean its owner has created a new name but rather it means the domain name is confusingly similar to both of the trade marks.”

In the light of the above, the Panel considers the Disputed Domain Name confusingly similar to the Complainant’s trade mark. Furthermore, the inclusion of the word “riverbelle” alongside the Complainant’s widely known trade mark does not in any way lessen the potential likelihood of consumer confusion or association in view of the re-known attaching to the MICROGAMING name and mark. The Complainant has satisfactorily demonstrated that MICROGAMING is a widely known trade mark in the online gaming industry and the placement of the name or mark RIVERBELLE in front of the Complainant’s MICROGAMING mark does not in the Panel’s view sufficiently reduce confusing similarity. This is all the more so in the circumstances that the RIVERBELLE name and mark has also been demonstrated to have a reputation in the online casino and gaming industry which is only likely to heighten the degree of potential confusion.

For the reasons stated above, the Complainant has satisfied Paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

Under paragraph 4(a)(ii), a complainant is required to make out a prima facie case that a respondent lacks rights or legitimate interests in a disputed domain name. Once a prima facie case is made, the 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).

The Panel, after considering all the evidence in the Complaint and the exhibits attached to it, finds that the Complainant has made out a prima facie case.

As already stated the Panel is prepared to accept the Complainant’s assertions that it is the exclusive licensee for the word mark MICROGAMING. The Panel also accepts the Complainant’s assertion that the Complainant is not affiliated with the Respondent and has never licensed or otherwise permitted the Respondent to use the MICROGAMING trade marks.

The Complainant has shown in evidence that the Disputed Domain Name points to a generic search engine website providing information about casino and gaming services and that competing and/or related goods and services to those of the Complainant can be accessed through this website.

There is no other evidence that the Respondent has a bona fide interest in the Disputed Domain Name and the Panel also views the Respondent’s failure to respond as further evidence that it has no rights or legitimate interests in the Disputed Domain Name. See Sallie Mae, Inc. v. Martin Marketing, WIPO Case No. D2004-0357, Geocities v. Geociities.com, WIPO Case No. D2000-0326.

In the Panel’s opinion, the Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the Disputed Domain Name which the Respondent has failed to rebut in any way.

For the foregoing reasons, the Panel is satisfied that the Respondent has no rights or legitimate interests in the Disputed Domain Name.

Therefore, the Complainant has satisfied paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

For the purposes of paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:

(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site 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 your web site or location or of a product or service on your web site or location.

It is clear from the evidence that the website to which the Disputed Domain Name resolves is a directory site which contains links to competitors of the Complainant and other third party websites. In general the purpose of these “directory sites” is to earn revenue for the domain owner in the form of commission based on the number of clicks each link receives. As a number of these links contain links to competitors of the Complainant and the Respondent has offered no explanation to the contrary, the Panel infers that the Respondent is using the reputation of the Complainant’s mark to profit from the obvious association with the Disputed Domain Name. The Complainant has therefore satisfied the requirements of paragraph 4(b)(iv) of the Policy.

In reaching its decision, the Panel notes that paragraph 4(b) of the Rules authorizes a panel to draw such inferences from a respondent’s failure to respond “as it considers appropriate”. In the Panel’s view inferences of bad faith can be drawn from the following facts:

1. The Complainant has demonstrated that the Respondent is neither related to the Complainant nor authorised to use the Complainant’s trade marks in any way. As the Respondent’s registration occurred nearly ten years after the Complainant’s first use of the MICROGAMING trademark, the Panel considers that the registration of a domain name containing such a widely known trade mark combined with another widely known mark within the same industry is evidence of intended use in bad faith;

2. The Respondent has failed to explain on two occasions the reasons why it registered the Disputed Domain Name. Firstly in failing to respond to the Complainant’s cease and desist letter and secondly by failing to file a Response in this administrative proceeding. In these circumstances, the Panel infers that the Respondent never intended any bona fide use for the Disputed Domain Name beyond the directory web site that is currently displayed.

 

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 <riverbellemicrogaming.com> be transferred to the Complainant.


Alistair Payne
Sole Panelist

Date: July 30, 2008

 

Источник информации: https://internet-law.ru/intlaw/udrp/2008/d2008-0894.html

 

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