Viral Interactive Limited v. Rui Barroso / Oring Ltd
Claim Number: FA2107001954779
Complainant is Viral Interactive Limited (“Complainant”), represented by Mathilde Lecomte of Ports Group AB, Sweden. Respondent is Rui Barroso / Oring Ltd (“Respondent”), Malta.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <nanocasino.com.se>, registered with NETIM SARL.
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.
Alan L. Limbury, as Panelist.
Complainant participated in the mandatory CentralNic mediation process. Respondent did not participate and the mediation process was terminated.
Complainant subsequently submitted a Complaint to the Forum electronically on July 13, 2021. The Forum received payment on July 13, 2021.
On July 14, 2021, NETIM SARL confirmed by e-mail to the Forum that the <nanocasino.com.se> domain name is registered with NETIM SARL and that Respondent is the current registrant of the name. NETIM SARL has verified that Respondent is bound by the NETIM SARL registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the CentralNic Dispute Resolution Policy (the “CDRP Policy”).
On July 20, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 9, 2021 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@nanocasino.com.se. Also on July 20, 2021, 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 August 11, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Alan L. Limbury 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 for the CDRP Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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 has rights in the NANOCASINO mark through its registration with various trademark agencies. Respondent’s <nanocasino.com.se> domain name is identical or confusingly similar to Complainant’s mark.
Respondent lacks rights and legitimate interests in the <nanocasino.com.se> domain name. Respondent is not commonly known by the domain name, nor has Complainant authorized or licensed Respondent to use its NANOCASINO 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 inactively holds the domain name, which resolves to the NETIM SARL website.
Respondent registered the <nanocasino.com.se> domain name in bad faith with actual knowledge of Complainant’s rights in the NANOCASINO mark. Respondent uses the domain name in bad faith by inactively holding it. Respondent failed to reply to Complainant’s correspondence and failed to participate in CentralNic mediation.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
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. As noted above, this requirement has been satisfied.
Unlike the Uniform Domain Name Dispute Resolution Policy (“UDRP”), the CDRP Policy does not require proof of both bad faith registration and bad faith use. Nevertheless, given the similarity between the 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 as 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 shown that it has rights in the NANOCASINO mark through its registration with various trademark agencies, including the United Kingdom Intellectual Property Office (“UKIPO”) Reg. 918,090,798, registered Oct. 24, 2019; and the Swedish Patent and Registration Office (“SPRO”) Reg. 201,904,382, registered Jan. 24, 2020. The Panel finds Respondent’s <nanocasino.com.se> domain name to be identical to Complainant’s mark as it consists of the mark in its entirety, merely adding the inconsequential “.com” generic top-level domain (“gTLD”) and the inconsequential “.se” (Sweden) country code top-level domain name (“ccTLD”), both of which may be ignored.
Complainant has established this element.
Paragraph 4(c) of the CDRP Policy sets out three illustrative circumstances as examples which, if established by Respondent, shall demonstrate rights to or legitimate interests in a disputed domain name for the purposes of paragraph 4(a)(ii) of the CDRP Policy, i.e.
(i) before any notice to Respondent of the dispute, the use by Respondent 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) Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
Complainant is a Maltese gaming company with a Swedish license headquartered in St Julians, Malta. It is part of the Finnplay Group, a privately-owned Nordic-based iGaming platform provider founded in 2008, which specializes in regulated tailored gaming solutions for the online and mobile gaming industry. Complainant’s website is at <nanocasino.com>.
The <nanocasino.com.se> domain name was registered on April 3, 2021. It resolves to the website of the Registrar. Respondent is Chief Marketing Officer and Head of SEO at the Malta-based iGaming operator Twin, a competitor of Complainant.
These circumstances, coupled with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain name on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the domain name. See Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014). Respondent has made no attempt to do so.
In the circumstances of this case, the Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has established this element.
Paragraph 4(b) of the CDRP Policy sets out five illustrative circumstances, which, though not exclusive, shall be evidence of the registration and [sic] use of a domain name in bad faith for purposes of paragraph 4(a)(iii) of the CDRP Policy, including:
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor.
The circumstances set out above in relation to the second element satisfy the Panel that Respondent was fully aware of Complainant’s NANOCASINO mark and of Complainant’s Swedish licence when Respondent registered the <nanocasino.com.se> domain name and that Respondent did so primarily for the purpose of disrupting the business of a competitor.
The Panel therefore finds that the domain name was registered in bad faith.
Complainant has established this element.
Having established all three elements required under the CDRP Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <nanocasino.com.se> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: August 12, 2021
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