DK Crown Holdings Inc. v. a3 bet
Claim Number: FA2307002052120
Complainant is DK Crown Holdings Inc. (“Complainant”), represented by Lawrence R. Robins of FisherBroyles LLP, Massachusetts, USA. Respondent is a3 bet (“Respondent”), Philippines.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <draftking1.com>, <draftking2.com>, <draftking6.com>, <draftking7.com>, <draftking8.com>, <draftking9.com>, <draftkingi.com>, <draftkingn.com> and <draftkingy.com>, registered with Dynadot 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.
James Bridgeman as Panelist.
Complainant submitted a Complaint to Forum electronically on July 6, 2023; Forum received payment on July 6, 2023.
On July 11, 2023, Dynadot Inc confirmed by e-mail to Forum that the <draftking1.com>, <draftking2.com>, <draftking6.com>, <draftking7.com>, <draftking8.com>, <draftking9.com>, <draftkingi.com>, <draftkingn.com> and <draftkingy.com> domain names are registered with Dynadot Inc and that Respondent is the current registrant of the names. Dynadot Inc has verified that Respondent is bound by the Dynadot 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 July 13, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 2, 2023 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@draftking1.com, postmaster@draftking2.com, postmaster@draftking6.com, postmaster@draftking7.com, postmaster@draftking8.com, postmaster@draftking9.com, postmaster@draftkingi.com, postmaster@draftkingn.com, postmaster@draftkingy.com. Also on July 13, 2023, 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, Forum transmitted to the parties a Notification of Respondent Default.
On August 7, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed James Bridgeman SC as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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 disputed domain names be transferred from Respondent to Complainant.
A. Complainant
Complainant claims rights in the DRAFTKINGS trademark and service mark established by its ownership of the portfolio of registrations described below and extensive use of the mark in its online sports business. It submits that since it was formed in 2011, it has become a global leader in the fields of sports entertainment, daily fantasy sports, and online sports and casino gambling, employing approximately three thousand four hundred (3,400) people worldwide. Complainant adds that together with its related entities it has an average of 1.6 million unique customers per month.
Complainant submits that as a result of Complainant’s continuous and exclusive use and promotion of its DRAFTKINGS mark since 2012, it has established a strong customer base and has built up value and goodwill in its DRAFTKINGS mark.
Complainant asserts that in the financial year ending 2021 alone, it spent nearly $1 billion to promote services offered under the DRAFTKINGS mark and to attract new customers. In support of this submission it refers to a report from <YouGov.com> which has been exhibited in an annex to the Complaint.
Complainant alleges that the disputed domain names are essentially identical to Complainant’s DRAFTKINGS mark in all respects, with the only difference being the substitution of the numbers 1, 2, 6, 7, 8, and 9, and the letters I, N, and Y for the letter “s” in the DRAFTKINGS mark.
It is argued that the mere replacement of one of the letters in the Complainant’s trademark by a number or another letter, does not avoid confusing similarity between any of the disputed domain names and the Complainant’s earlier trademark. Complainant submits that such behavior, typically referred to as “typo-squatting,” which has been repeatedly ruled to be bad faith registration. See Skyscanner Limited v. Domain May Be for Sale, Check Afternic.com Domain Admin, Domain Registries Foundation, WIPO Case No. D2018-1987 (November 5, 2018) (“Numerous UDRP decisions have recognized that incorporating a trademark in its entirety can be sufficient to establish that a domain name is identical or confusingly similar to a registered trademark.”).
Complainant next alleges that Respondent has no rights or legitimate interests in the disputed domain names arguing that to the knowledge of the Complainant, the disputed domain names do not comprise the legal name of Respondent.
It is further argued that Respondent did not, prior to this dispute, use the disputed domain names or any trademark corresponding to the disputed domain names in connection with a bona fide offering of goods or services, nor has Respondent made a legitimate non-commercial or fair use of the disputed domain names.
Complainant adds that Respondent’s use of the disputed domain names, which are virtually identical to Complainant’s DRAFTKINGS mark, to direct consumers to a website offering competing services or pay-per-click links, does not constitute a bona fide offering of goods and services pursuant to the Policy ¶ 4(c)(i), nor is it a legitimate non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See Independent Health Association Inc. c. Registration Private, Domains by Proxy, LLC / [K.A.], WIPO Case No. D2016-1625 (October 21, 2016) (finding no rights or legitimate interests when Respondent is using a domain name identical to Complainant’s mark and is offering similar services).
Complainant asserts that it has never authorized, licensed, or otherwise permitted Respondent to use Complainant’s DRAFTKINGS mark or any similar variations thereof, adding that it has not authorized, licensed, or otherwise permitted Respondent to apply for or use any domain name comprising or incorporating Complainant’s DRAFTKINGS mark.
Complainant next alleges that Respondent has registered and is using the disputed domain names, which encompasses Complainant’s DRAFTKINGS mark, in bad faith.
Complainant argues that its DRAFTKINGS mark has been used in commerce for over ten years prior to Respondent’s acquisition of the disputed domain names, and so it is obvious that Respondent knew of Complainant’s DRAFTKINGS mark when it acquired the disputed domain names. See eBay, Inc. v. SGR Enterprise et al., WIPO Case No. D2001-0259 (April 11, 2001) (actual or constructive knowledge of Complainant’s rights in its trademark supports a finding of bad faith).
Complainant adds that moreover, due to the fact that: (1) Respondent uses the disputed domain names in part to facilitate competition with Complainant, (2) Respondent makes no effort to notify its customers that it is not affiliated with, or licensed or authorized by, Complainant, and (3) the disputed domain names are identical to Complainant’s DRAFTKINGS mark, it is reasonable to conclude that Respondent had actual knowledge of Complainant’s rights in its DRAFTKINGS mark when Respondent registered the subject domain names. See Dollar Rent A. Car, Inc. v. Albert 14 Jackson, NAF Claim No. 187421 (Sept. 24, 2003) (Registration of a domain name that infringers on Complainant’s rights, despite actual or constructive knowledge of Complainant’s mark, is evidence of bad faith).
Furthermore, Complainant contends that the screen captures of the websites to which the disputed domain names resolve which are exhibited in an annex to the Complaint show that Respondent uses the disputed domain names to direct users to its websites that offer competing services or pay-per-click links allowing Respondent to profit from its bad faith registration of the disputed domain names.
Complainant argues that the services offered by Respondent on the websites to which the disputed domain names resolve, compete with the legitimate services offered by Complainant, and visitors to Respondent’s site are likely to believe that the services offered thereon originate with Complainant and Complainant thereby suffers damage.
Complainant submits that such use of the disputed domain names that incorporate Complainant’s mark and which are each confusingly similar or identical to Complainant’s mark on websites that compete directly with the trademark owner is evidence of bad faith use by Respondent. See MBS Computers Ltd. V. Workman, NAF Claim No. 96632 (March 16, 2001) (finding no rights or legitimate interests when Respondent is using a domain name identical to Claimant’s mark and is offering similar services).
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is a provider of sports entertainment, daily fantasy sports, and online sports and casino gambling services for which it uses the DRAFTKINGS trademark and service mark, and for which it holds a portfolio of registrations including the following:
· United States service mark registration DRAFTKINGS, registration number 4,308,819, registered on the Principal Register on March 26, 2013 i services in international class 41;
· United States trade mark and service mark registration DRAFTKINGS and Design, registration number 5,291,136, registered on the Principal Register on September 19, 2017 for goods and services in international classes 9, 25, and 41;
· United States trade mark registration DRAFTKINGS registration number 5,345,223, registered on November 28, 2017 for services in international classes 9, 25, and 41;
· United States trade mark registration DRAFTKINGS registration number 6,924,808, registered on the Principal Register on December 13, 2022 for goods in international classes 9, 35 and 41;
· United States trademark registration DRAFTKINGS and Design, registration number 7,086,989, registered on the Principal Register on June 20, 2023 for goods in international classes 9, 35 and 41.
The disputed domain names <draftking1.com>, <draftking2.com>, < draftking6.com>, < draftking7.com>, <draftking8.com>, <draftking9.com>, < draftkingi.com>, < draftkingn.com>, <draftkingy.com> were each registered on June 23, 2023 and resolve to websites with either pay-per-click links to third party websites or purport to offer gambling services that compete with the services offered by Complainant.
There is no information available about Respondent, except for that provided in the Complaint as amended, the Registrar’s WhoIs and the information provided by the Registrar in response to the request by the Forum for details of the registrations of the disputed domain names in the course of this proceeding.
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’s Rights
Complainant has provided convincing, uncontested evidence that it has rights in the DRAFTKINGS mark, established by the ownership of the international portfolio of registrations described above and extensive use of the mark in connection with its online sports and gambling services.
Confusing Similarity
Each of disputed domain names contains Complainant’s DRAFTKINGS mark in its entirety albeit without the letter “s”.
As Complainant has submitted, the only difference between each of the disputed domain names and Complainant’s mark is the substitution of the numbers 1, 2, 6, 7, 8, and 9, and the letters “i”, “n”, and “y” for the letter “s” in the DRAFTKINGS mark.
The dominant elements of Complainant’s DRAFTKINGS mark are also the dominant elements in each of the disputed domain names viz. the words “draft” and “king” in combination.
The absence of the letter “s” in the disputed domain names does not prevent a finding of confusing similarity. Neither does the addition of the numbers 1, 2, 6, 7, 8, and 9, and the letters I, N, and Y distinguish the disputed domain names from Complainant’s mark in a manner sufficient to prevent a finding of confusing similarity.
Similarly, the gTLD extension <.com> does not prevent a finding of confusing similarity because in the circumstances of this proceeding, it would in each case, be considered to be a necessary technical requirement for the disputed domain name registration.
This Panel finds therefore that the disputed domain name is confusingly similar to the DRAFTKINGS mark, and Complainant has therefore succeeded in the first element of the test in Policy ¶ 4(a)(i).
Complainant has made out a prima facie case that Respondent has no rights legitimate interests in the disputed domain name arguing that
· to the knowledge of the Complainant, the disputed domain names do not comprise the legal name of Respondent;
· prior to this dispute, Respondent did not use the disputed domain names or a trademark corresponding to the disputed domain names in connection with a bona fide offering of goods or services, nor has Respondent made a legitimate non-commercial or fair use of the disputed domain names.
· As shown in the screen captures of the websites to which the disputed domain names resolve, Respondent’s use of the disputed domain names, which are virtually identical to Complainant’s DRAFTKINGS mark, to direct consumers to a websites offering competing services or pay-per-click links, does not constitute a bona fide offering of goods and services pursuant to the Policy ¶ 4(c)(i), nor is it a legitimate non-commercial or fair use pursuant to Policy ¶ 4(c)(iii);
· Complainant has never authorized, licensed, or otherwise permitted Respondent to use Complainant’s DRAFTKINGS mark or any similar variations thereof;
· Complainant has not authorized, licensed, or otherwise permitted Respondent to apply for or use any domain name comprising or incorporating Complainant’s DRAFTKINGS mark.
It is well established that once a complainant makes out a prima facie case that a respondent has no rights or legitimate interests in the domain name at issue, the burden of production shifts to the respondent to prove its rights or legitimate interests.
Respondent has failed to discharge that burden and therefore this Panel must find that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant has therefore succeeded in the second element of the test in Policy ¶ 4(a)(ii).
Complainant has adduced clear and convincing, uncontested evidence that it has trademark and service mark rights and an extensive international reputation in the DRAFTKINGS mark which long predate the registration and first use of the disputed domain name on June 21, 2023.
DRAFTKINGS is distinctive mark, and it is improbable that the disputed domain names, each of which consists of the mark in combination with meaningless terms viz numbers and letters with no apparent significance, were chosen by coincidence and registered together on the same date.
As it is most improbable that the registrant of the disputed domain name did not know about Complainant, its DRAFTKINGS mark and Complainant’s rights when registering the disputed domain name, this Panel finds therefore that on the balance of probabilities the disputed domain names were registered in bad faith with Complainant and its mark and reputation in mind to take predatory advantage of Complainant’s goodwill and reputation in the mark.
The screen captures of the website to which the disputed domain names resolve, which have been exhibited in evidence in an annex to the Complaint, show that each of the disputed domain names resolve to a website that either purports to offer competing gambling services or presents pay-per-click links to the Internet user arriving on Respondent’s website.
By using each of the disputed domain names in this manner, on the balance of probabilities Respondent is purporting to attract and intercept internet traffic intended for Complainant and deceive Internet users who will not be aware that their traffic is being routed website owned and controlled by Respondent who has no connection whatsoever with Complainant.
Such use of the disputed domain names to deceptively intercept and direct Internet traffic to Complainant’s website without the consent of Complainant or the knowledge of the Internet user constitutes bad faith for the purposes of the Policy.
Furthermore, as the dominant element in each of the disputed domain names is an intentional misspelling of Complainant’s DRAFTKINGS mark by omitting the letter “s” and adding only a letter or number which has no significant, this Panel finds that by acquiring the disputed domain names Respondent is engaged in an act of typosquatting which, in itself, constitutes registration and use in bad faith.
As this Panel has found that the disputed domain name was registered and is being used in bad faith, Complainant has succeeded in the third element of the test in Policy paragraph 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <draftking1.com>, <draftking2.com>, <draftking6.com>, <draftking7.com>, <draftking8.com>, <draftking9.com>, <draftkingi.com>, <draftkingn.com> and <draftkingy.com> domain names be TRANSFERRED from Respondent to Complainant.
___________________________________
James Bridgeman SC
Panelist
Dated: August 9, 2023
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page