Bibit Global Payment
Services B.V. f/k/a Bi-bit Billing Services B.V. v. Mr Colin Sims
Claim Number: FA0803001164080
PARTIES
Complainant is Bibit Global Payment Services B.V. f/k/a Bi-bit
Billing Services B.V. (“Complainant”),
represented by James A. Thomas, of Troutman Sanders LLP, North Carolina, USA. Respondent is Colin Sims (“Respondent”),
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bibet.com> (the “Disputed Domain Name”), registered with Easyspace Ltd.
PANEL
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.
Hong Oo Baak as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on
On
On March 28, 2008, a Notification
of Complaint and Commencement of Administrative Proceeding (the “Commencement
Notification”), setting a deadline of April 17, 2008 by which Respondent could
file a Response to the Complaint, was transmitted to Respondent via e-mail,
post and fax, to all entities and persons listed on Respondent’s registration as
technical, administrative and billing contacts, and to postmaster@bibet.com by e-mail.
A timely Response was received and determined to be complete on
Complainant filed a timely
Additional Submission on
On
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
1. Complainant holds trademark registrations
for its BIBIT mark (the “Mark”) including the
2. Complainant asserts that the Disputed Domain
Name is confusingly similar to Complainant’s Mark.
3. Complainant asserts that Respondent has no
rights to or legitimate interests in the Disputed Domain Name. Complainant
asserts that Complainant has not licensed or otherwise authorized Respondent to
use its Mark, or any variation thereof.
Complainant asserts that Respondent has never
used the Disputed Domain Name with a bona
fide offering of goods or services, and that he has not made a legitimate
non-commercial or fair use of the Disputed Domain Name, but that Respondent is
using the Disputed Domain Name to operate a website that redirects Internet
users seeking Complainant’s products and services in the financial and banking
services industry, to the websites of Complainant’s competitors.
Complainant further asserts that there is no
evidence that Respondent has ever been commonly known by the name “bibet” or “bibet.com.”
4. Complainant asserts that Respondent had
actual or constructive knowledge of the Mark, and that Respondent has acted in
bad faith by registering and using the Disputed Domain Name confusingly similar
to Complainant’s Mark in a misspelled form, purposefully diverting Internet users
to Complainant’s competitors in the financial and banking services industries.
Complainant asserts that Respondent is engaged
in typosquatting and that Respondent registered and is using the Disputed
Domain Name to take advantage of an Internet user’s typographical errors. Complainant
asserts that it can be inferred that Respondent has acted in bad faith by profiting
through referral or click through fees for linking Internet users to
Complainant’s competitors’ websites, which disrupts Complainant’s business
under its Mark.
Complainant further asserts that Respondent’s
behavior of bidding for the sale of the Disputed Domain Name by signing up on
<sedo.com>, a domain parking service site, indicates that he registered
the Disputed Domain Name primarily for sale, rent or transfer after its
registration.
B. Respondent
1. Respondent contends that the Disputed Domain
Name is not identical or confusingly similar to the Mark, and that the Disputed
Domain Name is not a typographically erroneous version of Complainant’s Mark.
Respondent contends that the Disputed Domain Name is an abbreviation for “Binary
Betting,” and that it is phonetically different from <bibit.com>.
2. Respondent contends that he has rights or legitimate
interest in the Disputed Domain Name. Respondent contends that the Disputed
Domain Name has no connection with financial services, but that it is aimed at
an entirely different market to the Complainant.
3. Respondent contends that the Disputed Domain
Name was not registered and used in bad faith. Respondent contends that
although he signed up on <sedo.com> for domain parking service, he has
not specified a sale price despite the opportunity to specify a sale price. Respondent
thus contends that he has not actively attempted to market the Disputed Domain
Name in order to secure potential buyers, and that no offers have been received
or accepted.
C. Additional Submissions
1. Complainant contends that the Disputed
Domain Name is confusingly similar to Complainant’s Mark on the grounds that
the Disputed Domain Name merely substitutes the letter “i” in Complainant’s
Mark with the letter “e.”
2. Complainant contends that Complainant has
made a prima facie case even by
Respondent’s own admission that i) Complainant has established its rights to
and legitimate interests in the Mark; and that ii) Complainant is well-known
and established in the financial services industry. Complainant contends that
when Complainant has demonstrated rights in the Disputed Domain Name, the
burden shifts to Respondent to prove that he has rights in the name, however
that Respondent did not establish any of the situations in Policy ¶ 4(c)(i)-(iii).
Complainant contends that Respondent, having
changed the content of the website at the Disputed Domain Name since the filing
of the Complainant, is still using the Disputed Domain Name to redirect
customers or potential customers of Complainant who may have been seeking
similar financial or securities-related services from Complainant’s parent
company or affiliated companies. Complainant contends that Respondent
presumably receives click-through fees for displaying links to financial
products and services that compete with Complainant’s business.
3. Complainant contends that Respondent has
acted in bad faith by registering and using the confusingly similar Disputed
Domain Name containing Complainant’s mark in a misspelled form and purposefully
diverting Internet users to Complainant’s competitors in the financial and
banking services industries. Complainant contends that Respondent’s use of the
domain parking service site <sedo.com>, and Respondent displaying links
to Complainant’s competitors on the website at the Disputed Domain Name constitutes
disruption, and that they are evidence of bad faith registration and use. Complainant
further contends that Respondent’s actual or constructive notice of Complainant’s
rights in the Mark when Respondent registered the Disputed Domain Name is an
indication of Respondent’s bad faith registration and use of the Disputed
Domain Name.
Complainant further contends that Respondent’s engagement
in typosquatting and his attempt to profit off the Disputed Domain Name which
is intended to mislead Internet users as to its source are evidence of bad
faith.
FINDINGS
1.
Complainant is the owner of the trademark
registrations for the Mark including the
2.
Complainant is the owner of the domain name
<bibit.com> registered on
3.
The Disputed Domain Name was registered on
4.
Complainant operates a business in the financial and
banking services industry.
5.
The website operated at the Disputed Domain Name contains
links to Complainant’s competitors.
6.
The website operated at the Disputed Domain Name
contains statements such as “Buy this domain” and “The domain bibet.com may be
for sale by its owner!” together with the hyperlink which redirects the
Internet users to <sedo.com>, a website for the sale of domain.
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain
Name Dispute Resolution Policy (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 the 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 the Respondent is identical or confusingly similar to
a trademark or service mark in which the Complainant has rights;
(2)
the
Respondent has no rights or legitimate interests in respect of the domain name;
and
(3)
the domain name
has been registered and is being used in bad faith.
Complainant has
registered the Mark with trademark authorities including the United Kingdom
Intellectual Property Office, and such registrations present a prima facie case of Complainant’s rights
in the Mark. See Morgan Stanley v. Fitz-James, FA571918 (Nat. Arb. Forum
There may be cases
where it might not be appropriate to say that the difference in one vowel of a
five letter trademark and a five letter domain name is not significant,
especially where the mark has no inherent meaning. However, in the present case,
taking it into consideration that the Disputed Domain Name has no inherent
meaning and the website operated at the Disputed Domain Name contains links to websites
of businesses related to that of Complainant, the Disputed Domain Name is
confusingly similar to Complainant’s Mark since the difference between the
above two is just one vowel.
The Panel finds that Policy
¶4(a)(i) has been satisfied.
Paragraph 4(c) of the Policy sets out
circumstances, without limitation, which can establish the holder’s rights to
or legitimate interests in the domain name. These circumstances are as
follows.
(i) before any notice
to the domain name holder of the dispute, the holder's use of, or demonstrable
preparations to use, the domain name or a name corresponding to the domain name
in connection with a bona fide offering of goods or services; or
(ii) the domain name
holder (as an individual, business, or other organization) has been commonly
known by the domain name, even if the holder has acquired no trademark or
service mark rights; or
(iii) the domain name holder is making a legitimate noncommercial
or fair use of the domain name, without intent for commercial gain to
misleadingly divert consumers or to tarnish the trademark or service mark at
issue.
While the overall
burden of proof for Policy ¶ 4 a(ii) rests on
Complainant, the failure by Respondent to demonstrate that he comes within Policy
¶ 4(c) can assist the Panel in deciding whether Complainant has discharged the
onus of proof. See Wal-Mart Stores, Inc. v. Stock,
D2000-0628 (WIPO Aug.11, 2000)
Also, while
Complainant alleges in its Additional Submission that Respondent does not
contest Complainant’s allegation that Respondent is neither commonly known by
the Disputed Domain Name nor licensed to register names using the marks of
Complainant, in the absence of evidence suggesting otherwise, Respondent has
not established rights to or legitimate interests in the Disputed Domain Name
under Policy ¶ 4 (c)(ii).
In addition, Respondent is using the Disputed Domain Name for redirecting Internet users
interested in Complainants’ services to a website that features links to
various financial services industry sites is not a use in connection with a bona fide offering of goods nor a legitimate noncommercial or fair use of the domain
name. See
Considering all the
statements made and evidence submitted, the Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s use of
the disputed domain name to operate a website that features links to Complaint’s
competitors’ websites strongly indicates that Respondent registered the Disputed
Domain Name to disrupt Complainant’s business. Specifically, the fact that
Respondent’s website includes links related to Complainant’s business is sound
evidence that Respondent’s actions were targeted to Complainant. Morgan Stanley v. Morgan, FA
585915 (Nat Arb. Forum Dec. 6, 2005).
Also, Complainant
asserts that Respondent has offered the Disputed Domain Name for sale. Offers
to sell may be found to be a showing of bad faith registration and use under Policy
¶ 4(b)(ii). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb.
Forum Sep. 30, 2003).
According to the
above, the Panel finds that Policy ¶ 4(a)(iii) has
been satisfied.
DECISION
Having established all three elements
required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ordered that the <bibet.com>
domain name be TRANSFERRED from Respondent to Complainant.
Hong Oo Baak, Panelist
Dated:
National
Arbitration Forum