Aristocrat Technologies Australia Pty Ltd v. Igor Noskov
Claim Number: FA2109001963036
Complainant is Aristocrat Technologies Australia Pty Ltd (“Complainant”), represented by Jeffrey A. Nelson of Davis Wright Tremaine LLP, Washington, USA. Respondent is Igor Noskov (“Respondent”), Russian Federation.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <aristocrat-slots.com>, registered with NameCheap, Inc..
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.
Ho-Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 9, 2021; the Forum received payment on September 9, 2021.
On September 10, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <aristocrat-slots.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On September 14, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 4, 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@aristocrat-slots.com. Also on September 14, 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 October 6, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Ho-Hyun Nahm, Esq. 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 Uniform Domain Name 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 ICANN Policy, ICANN 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
i) Complainant, Aristocrat Technologies Australia Pty Ltd, is a global distributor of gaming products. Complainant has rights in the ARISTOCRAT mark based upon the registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 772,205, registered June 30, 1964). The disputed domain name is nearly identical and confusingly similar to Complainant’s mark because it fully incorporates Complainant’s ARISTOCRAT mark, simply adding the generic term “slots” and the “.com” generic top-level domain (“gTLD”).
ii) Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not licensed or authorized to use Complainant’s ARISTOCRAT mark and is not commonly known by the disputed domain name. Additionally, Respondent does not use the disputed domain for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to pass off as Complainant in order to divert users to competing goods.
iii) Respondent registered and uses the disputed domain name in bad faith. Respondent trades off Complainant’s goodwill to redirect consumers to a competing website for commercial gain. Further, Respondent had actual knowledge of Complainant’s rights in the ARISTOCRAT mark when it registered the disputed domain name.
B. Respondent
Respondent did not submit a Response in this proceeding.
1. The disputed domain name was registered on September 12, 2019.
2. Complainant has established rights in the ARISTOCRAT mark based upon the registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 772,205, registered June 30, 1964).
3. The disputed domain name’s resolving webpage advertises online casino games and allows users to play free demonstrations of Complainant’s games.
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 and is being used in bad faith.
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 asserts rights in the ARISTOCRAT mark based upon the registration with the USPTO. Registration of a mark with the USPTO is a valid showing of rights in a mark per Policy ¶ 4(a)(i). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”). Complainant provides evidence of registration of the ARISTOCRAT mark with the USPTO (e.g., Reg. No. 772,205, registered June 30, 1964). Therefore, the Panel finds that Complainant has established rights in the mark under Policy ¶ 4(a)(i).
Complainant argues that the disputed domain name is nearly identical and confusingly similar to Complainant’s mark because it fully incorporates Complainant’s ARISTOCRAT mark, simply adding the generic term “slots” and the “.com” gTLD. Addition of generic and/or descriptive terms and a gTLD to a mark does not negate any confusing similarity between a disputed domain name and mark under Policy ¶ 4(a)(i). See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (Finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i).). Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s ARISTOCRAT mark under Policy ¶ 4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then 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 contends that Respondent does not have rights or legitimate interests in the disputed domain name because Respondent is not licensed or authorized to use Complainant’s ARISTOCRAT mark and is not commonly known by the disputed domain name. When no response is submitted, WHOIS information can be used to show that a respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See H-D U.S.A., LLC, v. ilyas Aslan / uok / Domain Admin ContactID 5645550 / FBS INC / Whoisprotection biz, FA 1785313 (Forum June 25, 2018) (“The publicly available WHOIS information identifies Respondent as ‘Ilyas Aslan’ and so there is no prima facie evidence that Respondent might be commonly known by either of the [<harleybot.bid> and <harleybot.com>] domain names.”). Additionally, lack of authorization to use a mark constitutes further showing that a respondent lacks rights in a mark. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). The WHOIS information of record notes “Igor Noskov” as the registrant and no information suggests that Complainant has authorized Respondent to use the ARISTOCRAT mark. Thus, the Panel finds that Respondent is not commonly known by the domain name under Policy ¶ 4(c)(ii).
Complainant also argues that Respondent does not use the disputed domain for any bona fide offering of goods or services or legitimate noncommercial or fair use, but instead passes off as Complainant in order to divert users to competing goods. Use of a disputed domain name to pass off as a complainant in order to sell goods or services that compete with the complainant is not a bona fide offering of goods or services, or for any legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Alcon, Inc. v. ARanked, FA 1306493 (Forum Mar. 18, 2010) (“The Panel finds that capitalizing on the well-known marks of Complainant by attracting internet users to its disputed domain names where Respondent sells competing products of Complainant is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”); see also Fox News Network, LLC v. Reid, D2002-1085 (WIPO Feb. 18, 2003) (finding that the respondent’s use of the disputed domain name to generate revenue via advertisement and affiliate fees is not a bona fide offering of good or services). Complainant provides screenshots of Respondent’s webpage, which advertises online casino games and allows users to play free demonstrations of Complainant’s games. Therefore, the Panel finds that Respondent is not using the domain name for a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
The Panel finds that Complainant has made out a prima facie case that arises from the considerations above. All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant argues that Respondent registered and uses the disputed domain name in bad faith because Respondent trades off Complainant’s goodwill to redirect consumers to a competing website for commercial gain. Use of a disputed domain name to offer competing goods or services can be evidence an attempt to attract users for commercial gain 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).”). As previously noted, Complainant provides screenshots of Respondent’s webpage, which advertises online casino games and allows users to play free demonstrations of Complainant’s games. Therefore, the Panel finds Respondent’s bad faith registration and use of the disputed domain name under Policy ¶ 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <aristocrat-slots.com> domain name be TRANSFERRED from Respondent to Complainant.
Ho-Hyun Nahm, Esq., Panelist
Dated: October 11, 2021
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