IPSUB HOLDING LIMITED v. Domain Admin / Whois Privacy Corp.
Claim Number: FA2201001982332
Complainant is IPSUB HOLDING LIMITED (“Complainant”), represented by Georgios Georgiadis, Cyprus. Respondent is Domain Admin / Whois Privacy Corp. (“Respondent”), International.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <fonbet.in.net> (“Domain Name”), registered with TLD Registrar Solutions Ltd..
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Nicholas J.T. Smith as Panelist.
Complainant participated in the mandatory CentralNic Mediation, and the mediation process was terminated.
Complainant submitted a Complaint to the Forum electronically on January 28, 2022; the Forum received payment on January 28, 2022.
On January 28, 2022, TLD Registrar Solutions Ltd. confirmed by e-mail to the Forum that the <fonbet.in.net> domain name is registered with TLD Registrar Solutions Ltd. and that Respondent is the current registrant of the name. TLD Registrar Solutions Ltd. has verified that Respondent is bound by the TLD Registrar Solutions Ltd. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the CentralNic Dispute Resolution Policy (the “Policy”)
On February 2, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 22, 2022 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@fonbet.in.net. Also on February 2, 2022, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On February 28, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Nicholas J.T. Smith as Panelist.
Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules to the CDRP Dispute Resolution Policy (“Rules”). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the CDRP Policy, CDRP Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the Domain Name be transferred from Respondent to Complainant.
A. Complainant
Complainant offers online betting and sportsbook services. Complainant has rights in the FONBET mark through its registration with the Office of Harmonization in the Internal Market (“OHIM”) (Reg. 14,873,194, registered Mar. 15, 2016). Respondent’s <fonbet.in.net> domain name is identical or confusingly similar to Complainant’s mark as it incorporates the mark in its entirety and adds the “.in” country code top-level domain (“ccTLD”) and “.net” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <fonbet.in.net> domain name. Respondent is not commonly known by the Domain Name, nor has Complainant authorized or licensed Respondent to use its FONBET mark in the Domain Name. Respondent does not use the Domain Name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use, but instead passes off as Complainant and offers competing online gambling services and advertisements on the Domain Name’s resolving website.
Respondent registered and uses the <fonbet.in.net> domain name in bad faith. Respondent uses the Domain Name to pass off as Complainant and offer competing services. Respondent registered the Domain Name with actual knowledge of Complainant’s rights in the mark. Respondent used a WHOIS privacy service to disguise its identity.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the FONBET mark. The Domain Name is identical to Complainant’s FONBET mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the Domain Name and that Respondent registered and has used the Domain Name in bad faith.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered or is being used in bad faith.
The CDRP Policy also requires that Complainant have participated in a CentralNic Mediation, and that said mediation must have been terminated prior to the consideration of the Complaint.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the CDRP Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Complainant has rights in the FONBET mark through its registration of the mark with the OHIM (e.g. Reg. 14,873,194, registered Mar. 15, 2016). Registration of a mark with OHIM is sufficient to demonstrate rights in the mark per Policy ¶ 4(a)(i). See NIKE, Inc., and Nike Innovate, C.V. v. Emile Boulanger, FA 1732458 (Forum July 3, 2017) (“Registration with the OHIM is sufficient to demonstrate rights in a mark under Policy ¶ 4(a)(i).”).
The Panel finds that the <fonbet.in.net> domain name is identical to the FONBET mark as it merely adds the “.in.net” TLD to Complainant’s wholly incorporated FONBET mark. The addition of a top-level domain (“TLD”) is insufficient to distinguish a domain from a mark under Policy ¶ 4(a)(i). See Dansko, LLC v. zhang wu, FA 1757745 (Forum Dec. 12, 2017) (finding the <danskoshoes.us.com> domain name to be confusingly similar to the DANSKO mark under Policy ¶ 4(a)(i), despite the addition of the “.us” ccTLD and the “.com” gTLD); see also Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Forum May 27, 2003) (“The addition of a top-level domain is irrelevant when establishing whether or not a mark is identical or confusingly similar, because top-level domains are a required element of every domain name.”).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the Domain Name. In order for Complainant to succeed under this element, it must first make a prima facie case that Respondent lacks rights and legitimate interests in the Domain Name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) and AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”). The Panel holds that Complainant has made out a prima facie case.
Complainant asserts that Respondent has no rights or legitimate interests in the Domain Name as Respondent is not commonly known by the Domain Name, nor has Complainant authorized Respondent to use the FONBET mark. Respondent has no relationship, affiliation, connection, endorsement or association with Complainant. WHOIS information can help support a finding that a respondent is not commonly known by the disputed domain name, especially where a privacy service has been engaged. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)); see also Kohler Co. v. Privacy Service, FA1505001621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where “Privacy Service” was listed as the registrant of the disputed domain name). The WHOIS lists “Domain Admin / Whois Privacy Corp.” as registrant of record. Coupled with Complainant’s unrebutted assertions as to absence of any affiliation or authorization between the parties, the Panel finds that Respondent is not commonly known by the Domain Name in accordance with Policy ¶ 4(c)(ii).
The Domain Name is used for a website (“Respondent’s Website”) that offers online gaming services in direct competition with Complainant’s online gaming services. The use of a confusingly similar domain name to resolve to a webpage that offers goods or services that compete with a complainant does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use; indeed it provides a false impression that the Respondent is affiliated with or authorized by Complainant. See Upwork Global Inc. v. Shoaib Malik, FA 1654759 (Forum Feb. 3, 2016) (finding that Complainant provides freelance talent services, and that Respondent competes with Complainant by promoting freelance talent services through the disputed domain’s resolving webpage, which is neither a bona fide offering of goods or services, nor is it a legitimate noncommercial or fair use). See also General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
The Panel finds that, at the time of registration of the Domain Name, December 6, 2019, Respondent had actual knowledge of Complainant’s FONBET mark since the Respondent’s Website offers gambling services in direct competition with Complainant. In particular, the Respondent’s Website reproduces certain content from Complainant’s website at www.fonbet.ru, indicating an awareness of Complainant. Furthermore, there is no obvious explanation, nor has one been provided, for an entity to register a domain name that wholly incorporates the FONBET mark and use it to redirect visitors to a website selling gaming services other than to take advantage of Complainant’s reputation in the FONBET Mark. In the absence of rights or legitimate interests of its own this demonstrates registration in bad faith under Policy ¶ 4(a)(iii).
The Panel finds that Respondent registered and uses the Domain Name in bad faith to create confusion with Complainant’s FONBET Mark for commercial gain by using the confusingly similar Domain Name to resolve to a website offering gaming services that may mislead consumers into thinking that Respondent, or any service offered by the Respondent, is in some way connected to the Complainant. Using a confusingly similar domain name to trade upon the goodwill of a complainant can evince bad faith under Policy ¶ 4(b)(iv). See Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”). See also Citadel LLC and its related entity, KCG IP Holdings, LLC v. Joel Lespinasse / Radius Group, FA1409001579141 (Forum Oct. 15, 2014) (“Here, the Panel finds evidence of Policy ¶ 4(b)(iv) bad faith as Respondent has used the confusingly similar domain name to promote its own financial management and consulting services in competition with Complainant.”).
The Panel while noting that the Policy only requires that a complainant show that a respondent registered or used a domain name at issue in bad faith, finds that the Respondent has registered and used the Domain Name in bad faith under Policy ¶ 4(a)(iii).
Having established all three elements required under the CDRP Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <fonbet.in.net> domain name be TRANSFERRED from Respondent to Complainant.
Nicholas J.T. Smith, Panelist
Dated: March 1, 2022
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