NetBet Enterprises Ltd v. Deborah R. Heacock
Claim Number: FA2002001882197
Complainant is NetBet Enterprises Ltd (“Complainant”), represented by James Taylor of Safenames Ltd, United Kingdom. Respondent is Deborah R. Heacock (“Respondent”), Washington, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <netbet.us>, registered with Dynadot, LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 6, 2020; the Forum received payment on February 6, 2020.
On February 7, 2020, Dynadot, LLC confirmed by e-mail to the Forum that the <netbet.us> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On February 10, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 2, 2020 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@netbet.us. Also on February 10, 2020, 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 March 6, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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 usTLD Dispute Resolution Policy (“Rules”). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the usTLD Policy, usTLD 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
1. Respondent’s <netbet.us> domain name is confusingly similar to Complainant’s NETBET mark.
2. Respondent does not have any rights or legitimate interests in the <netbet.us> domain name.
3. Respondent registered and uses the <netbet.us> domain name in bad faith.
B. Respondent failed to file a Response in this proceeding.
Complainant, NetBet Enterprises Ltd., operates an online gaming and casino company. Complainant holds a registration for the NETBET mark with the European Union Intellectual Property Office (“EUIPO”) (Reg. No. 8,916,314, registered May 16, 2012).
Respondent registered the <netbet.us> domain name on July 17, 2013, and uses it to resolve to a webpage that offers pay-per-click links directly related to Complainant’s business.
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.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD 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”).
The Panel finds that Complainant has rights in the NETBET mark under Policy ¶ 4(a)(i) through its registration with the EUIPO. See Wente Bros. v. I S / ICS INC, FA 1739664 (Forum Aug. 18, 2017) (finding the complainant’s registration of its WENTE and WENTE VINYARDS marks with the EUIPO sufficient to establish rights in the marks).
Respondent’s <netbet.us> domain name is identical to Complainant’s NETBET mark because it merely adds the “.us.” ccTLD. See CloudFlare, Inc. v. [Registrant], FA 1624251 (Forum Aug. 1, 2015) (“The inclusion of a ccTLD does not alleviate the similarity between a mark and a disputed domain name as per Policy ¶ 4(a)(i).”). Accordingly, the Panel finds that Respondent’s <netbet.us> domain name is identical to Complainant’s NETBET mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant argues that Respondent lacks rights or legitimate interest in the <netbet.us> domain name, as Respondent is not commonly known by the disputed domain name. Respondent has no license or consent to use the NETBET mark or register a domain name using Complainant’s mark. The WHOIS information for the disputed domain name lists the registrant as “Deborah R. Heacock.” Therefore, the Panel finds Respondent is not commonly known by the disputed domain name, and thus has no rights under Policy ¶ 4(c)(iii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name); see also Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”).
Complainant further argues that Respondent fails to use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Complainant specifically argues that Respondent’s <netbet.us> domain name resolves to a webpage that offers pay-per-click links that compete directly with Complainant. The use of a disputed domain name to offer pay-per-click links that compete with a complainant is not a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(ii) or (iv). See Ashley Furniture Industries, Inc. v. domain admin / private registrations aktien gesellschaft, FA1506001626253 (Forum July 29, 2015) (“Respondent is using the disputed domain name to resolve to a web page containing advertising links to products that compete with those of Complainant. The Panel finds that this does not constitute a bona fide offering or a legitimate noncommercial or fair use.”). Complainant provides screenshots of Respondent’s webpage at <netbet.us> that shows links to services such as “betting,” “football betting,” and “bet online.” Therefore, the Panel finds that Respondent has failed to use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus has no rights under Policy ¶¶ 4(c)(ii) or (iv).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the <netbet.us> domain name in bad faith by attempting to sell it. Evidence that a respondent is attempting to sell a disputed domain name for an amount in excess of out-of-pocket costs may be evidence of bad faith registration and use under Policy ¶ 4(b)(i). See Vanguard Trademark Holdings USA LLC v. Wang Liqun, FA1506001625332 (Forum July 17, 2015) (“A respondent’s general offer to sell a disputed domain name for an excess of out-of-pocket costs is evidence of bad faith under Policy ¶ 4(b)(i).”). Complainant provides screenshots of Respondent’s attempts to sell the disputed domain name for $29,999.00. Therefore, the Panel finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(i).
Complainant also argues that Respondent has been involved in previous UDRP decisions, which is additional evidence of bad faith. Prior UDRP cases may be evidence of a respondent’s pattern of bad faith per Policy ¶ 4(b)(ii). See Sanlam Life Insurance Limited v. Syed Hussain / Domain Management MIC, FA 1787219 (Forum June 15, 2018) (finding bad faith per Policy ¶ 4(b)(ii) where the complainant provided evidence the respondent owned various domain names infringing on famous third-party marks; and also that the respondent had been ordered to transfer domain names in previous UDRP decisions). Complainant provides evidence showing that Respondent was ordered to transfer the domain name in nine other UDRP proceedings. Therefore, the Panel finds that Respondent has engaged in a pattern of bad faith under Policy ¶ 4(b)(ii).
Complainant shows that Respondent’s <netbet.us> domain name resolves to a webpage that hosts pay-per-click links that compete with Complainant’s business. The Panel finds that this constitutes further evidence of bad faith under Policy ¶ 4(b)(iii). See American Council on Education and GED Testing Service LLC v. Anthony Williams, FA1760954 (Forum Jan. 8, 2018) (“Respondent’s hosting of links to Complainant’s competitors demonstrates bad faith registration and use of the <geddiploma.org> domain name pursuant to Policy ¶ 4(b)(iii)”).
Complainant argues further that Respondent’s knowledge of Complainant’s mark prior to registering <netbet.us> is apparent from the notoriety of Complainant’s mark and from Respondent’s use of the domain name to directly compete with Complainant. The Panel agrees and finds find that Respondent registered the <netbet.us> domain name with actual knowledge of Complainant’s NETBET mark, further demonstrating bad faith under Policy ¶4(a)(iii). See Norgren GmbH v. Domain Admin / Private Registrations Aktien Gesellschaft, FA1501001599884 (Forum Feb. 25, 2014) (holding that the respondent had actual knowledge of the complainant and its rights in the mark, thus demonstrating bad faith registration under Policy ¶ 4(a)(iii), where the respondent was using the disputed domain name to purposely host links related to the complainant’s field of operation); see also Yahoo! Inc. v. Butler, FA 744444 (Forum Aug. 17, 2006) (finding bad faith where the respondent was "well-aware of the complainant's YAHOO! mark at the time of registration).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <netbet.us> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: March 6, 2020
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