DECISION

 

Stable Software Solutions Ltd. v. FlokiNET Ltd WhoisProtection / FlokiNET Ltd

Claim Number: FA2501002135182

PARTIES

Complainant is Stable Software Solutions Ltd. ("Complainant"), represented by REVERA Polska sp. z o.o., Poland. Respondent is FlokiNET Ltd WhoisProtection / FlokiNET Ltd ("Respondent"), Seychelles.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <softswissscam.com>, registered with Tucows Domains Inc.

 

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.

 

The Honorable Neil Anthony Brown KC as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on January 15, 2025; Forum received payment on January 15, 2025.

 

On January 15, 2025, Tucows Domains Inc. confirmed by e-mail to Forum that the <softswissscam.com> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains 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 January 17, 2025, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 6, 2025 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@softswissscam.com. Also on January 17, 2025, 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 February 7, 2025, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed The Honorable Neil Anthony Brown KC 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.

 

PARTIES' CONTENTIONS

A. Complainant

    Complainant made the following contentions.

1.       The Complainant is a Maltese company engaged in the provision of software for online casinos and sports betting companies and related goods and services and has been so engaged since 2008.

2.       The Complainant provides its goods and services under the trademark for SOFTSWISS. In particular, the evidence will establish that the Complainant has acquired rights by way of authorized licence from the current owner of the SOFTSWISS trademark and by virtue of the registration of that mark with:

(a)                      the European Union Intellectual Property Office ("EU"), registration number 018888439, registered on September 27, 2023 for SOFTSWISS; and

(b)                      the Benelux Office For Intellectual Property, ("Benelux") registration number 1440773, registered on April 20, 2021, for SOFTSWISS;

( "the EU and Benelux trademarks for SOFTSWISS").

3.       The Complainant also claims common law trademark rights in the SOFTSWISS trademark which it has used since at least 2009 as demonstrated by evidence of that use and has used the registered the EU and Benelux trademarks since their registration to offer its goods and services (collectively "the SOFTSWISS trademark").

4.       The SOFTSWISS trademark has attracted substantial goodwill and is uniquely associated with the Complainant's goods and services.

5.       As well as its trademark, Complainant has registered the domain name <softswiss.com> that it uses in its business and in particular for its website at www.softswiss.com where it markets its products under the SOFTSWISS trademark and brand and includes its SOFTSWISS products for sale.

6.       The Respondent registered the <softswissscam.com> domain name on August 28, 2024, ("the disputed domain name").

7.       The disputed domain name embodies, without the consent of the Complainant, the SOFTSWISS trademark with the addition of the word "scam" and the generic Top Level Domain ".com".

8.       The disputed domain name is confusingly similar to the SOFTSWISS trademark.

9.       The Respondent has no rights or legitimate interests in the disputed domain name. That is so because:

(a)       the Respondent has not used the domain name for a bona fide offering of goods or services within the meaning of Policy ¶ 4(c)(i); rather, the Respondent has used it to resolve to a website featuring AI-created videos containing defamatory statements regarding the Complainant and its employees so as to tarnish the Complainant's SOFTSWISS trademark;

(b)       the Respondent is not commonly known by the disputed domain name within the meaning of Policy ¶ 4(c)(ii);

(c)       the Respondent has not used the domain name for a legitimate non-commercial or fair use within the meaning of Policy ¶ 4(c)(iii), but rather has used the domain name for improper commercial gain showing that its conduct is not fair and is calculated to tarnish the Complainant's trademark;

(d)       the use of the disputed domain name is couched in anonymous and intemperate language providing no opportunity for reply or to disprove its assertions;

(e)       the Respondent has no trademark or other rights in SOFTSWISS; and

(f)        there is no other ground on which it could conceivably be shown that the Respondent has a right or legitimate interest in the disputed domain name.

10.       The Respondent has registered and used the disputed domain name in bad faith. That is so because:

(a)       the Respondent has registered and used the domain name primarily for the purpose of disrupting the business of the complainant within the meaning of Policy ¶ 4(b)(iii);

(b)       the Respondent registered the domain name on August 28, 2024 whereas the Complainant had used its common law trademark rights from at least 2009 and obtained its trademark registrations of the SOFTSWISS trademark from 2021; this shows that the Respondent was well aware of the Complainant's trademark rights and had actual notice of them when it registered the domain name;

(c)       the use of the word "scam" in the domain name and the use of the domain name to disseminate defamatory statements shows that the Respondent intended to tarnish the SOFTSWISS trademark and the Complainant's reputation in bad faith; and

(d)        all of the acts, facts, matters and circumstances to be revealed by the evidence will show that the Respondent registered and used the disputed 11. domain name in bad faith.

11. The Complainant will establish all of the elements it must prove under the UDRP and is entitled to the relief it seeks.

 

B. Respondent

    Respondent failed to submit a Response in this proceeding.

 

FINDINGS

1.       The Complainant is a Maltese company engaged in the provision of software for online casinos and sports betting companies and related goods and services and has been so engaged since 2008.

2.       The evidence has established that the Complainant has acquired rights by way of authorized licence from the current owner of the SOFTSWISS trademark by virtue of the registration of that mark with:

(a)       the European Union Intellectual Property Office ("EU"), registration number 018888439, registered on September 27, 2023 for SOFTSWISS; 

(b)       the Benelux Office For Intellectual Property, ("Benelux") registration number 1440773, registered on April 20,2021, for SOFTSWISS;

("the EU and Benelux trademarks for SOFTSWISS")

and by virtue of the Complainant's common law rights that have been established by the evidence.

3.       The Respondent registered the <softswissscam.com> domain name on August 28, 2024, ("the disputed domain name").

4.       The disputed domain name embodies, without the consent of the Complainant, the SOFTSWISS trademark with the addition of the word "scam" and the generic Top Level Domain ".com".

5.       The Respondent has caused the domain name to resolve to the Respondent's website at www.softswissscam.com that carries  AI-created videos and other material containing defamatory statements regarding the Complainant, its trademark and brand and its employees, misleads internet users, tarnishes the Complainant's trademark and generates confusion with the Complainant.

6.       By reason of the matters aforesaid, and as established by the evidence, the disputed domain name is confusingly similar to the SOFTSWISS trademark, the Respondent has no rights or legitimate interests in the disputed domain name and the disputed domain name has been registered and used in bad faith.

7.       Accordingly, the disputed domain name should be transferred from the Respondent to the Complainant.

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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").

 

Identical and/or Confusingly Similar

The first question that arises is whether the Complainant has rights in a trademark or service mark on which it may rely. The evidence shows that the Complainant provides its goods and services under the trademark for SOFTSWISS. In particular, the evidence has established that the Complainant has acquired rights by way of authorized licence from the current owner of the SOFTSWISS trademark and by virtue of the registration of that mark with:

(a)       the European Union Intellectual Property Office ("EU"), registration number 018888439, registered on September 27, 2023 for SOFTSWISS; and

(b)       the Benelux Office For Intellectual Property, ("Benelux") registration number 1440773, registered on April 20, 2021, for SOFTSWISS;

( "the EU and Benelux trademarks for SOFTSWISS").

The forgoing has been established by documentary evidence that the Panel has examined and finds to be in order. In particular the Panel has inspected the document embodying the licence from Maryia Seksiayeva to the Complainant to use the SOFTSWISS trademarks dated October 15, 2023 and which is valid for 10 years from that date.

The evidence is also that the Complainant has used the EU and Benelux trademarks for the SOFTSWISS trademark since their registration to offer its goods and services (collectively "the SOFTSWISS trademark").

The Complainant also claims common law trademark rights in the SOFTSWISS trademark which it has used since at least 2009. In that regard, the Complainant has adduced significant evidence of the history of the Complainant and its use of the SOFTSWISS trademark since 2009. On that basis, the Panel finds that the Complainant has established it common law trademark rights.

The Complainant has thus established its trademark rights and hence its standing to bring this proceeding.

The next question that arises is whether the disputed domain name is identical or confusingly similar to the Complainant's SOFTSWISS   trademark. It is not identical, as the domain name includes other features that are not in the trademark. The Panel finds, however, that the domain name is confusingly similar to the SOFTSWISS trademark for the following two reasons.

The first is that the disputed domain name embodies, without the consent of the Complainant, the SOFTSWISS trademark with the addition of the word "scam" and the generic Top Level Domain ".com". When a domain name includes a trademark, as in the present case, it is more likely than not that the domain name is confusingly similar to the trademark. Thus, internet users would read the present domain name as related to the SOFTSWISS trademark and as dealing with the Complainant's goods and services offered under the trademark. The confusion is that the domain name raises in the mind of the internet user a question mark as to whether it is a genuine and official domain name of the Complainant or not.

The second reason is that the presence of the word "scam" also  raises a further confusing similarity. Internet users would read the domain name to mean either, on the one hand, that the SOFTSWISS trademark is being used to promote or generate a scam or, on the other hand, that it was being used to fight off or defend itself from a scam, a subject of very great interest to interest users, especially those who might be about to do business with the Complainant or buy its products, not to mention regulatory authorities who would be particularly interested in whether the Complainant, who is licensed under the Maltese law, has anything to do with the alleged scam in question. Either way, the domain name immediately gives rise to confusion, because it raises a question mark as to whether the Complainant is the perpetrator or the victim of the alleged scam.

For those two reasons, the domain name is similar to the trademark and confusingly so.

The addition of the generic Top Level Domain ".com" is ignored in making the comparison, because all domain names must have such an extension.

The Panel therefore finds that the disputed domain name is confusingly similar to the SOFTSWISS trademark under Policy ¶ 4(a)(i).

The Complainant has thus made out the first of the three elements that it must establish under the Policy

 

Rights or Legitimate Interests

It is now well established that the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) and that, if the prima facie case is made out, the burden then shifts to the Respondent to show that it does have such 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)).

The Panel finds on the evidence that the Complainant has made out a prima facie case that arises from the following considerations. The Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name on all of the grounds relied on by the Complainant, as:

(a)       the Respondent has not used the domain name for a bona fide offering of goods or services within the meaning of Policy ¶ 4(c)(i); rather, the Respondent has used it to resolve to a website featuring AI-created videos containing defamatory statements regarding the Complainant and its employees so as to tarnish the Complainant's SOFTSWISS trademark; thus, the Respondent is not using the domain name to offer any goods or services; the Panel has examined all of the many screenshots showing the material that the Respondent has put up on its site; so far as the Panel can see, none of them offer any goods or services at all; this is because the website is not meant for that purpose; its purpose is clearly to make a series of allegations that certain individuals, apparently employees of the Complainant, are variously "an international cybercriminal and scammer", "a Belarusian criminal and scammer", criminals and scammers of other nationalities, a key player in Russian and Belarusian cyber fraud and the perpetrators of various "scam online casinos"; the screenshots make it very clear that they are alleging that the Complainant itself is responsible for these transgressions, as they use the SOFTSWISS trademark in full as well as its logo and wording such as "Cybercrime Alert: Vegas To Macau Scam Online Casino by Softswiss and Softswiss N.V."; thus it can be readily concluded that this is not a case for Policy ¶ 4(c)(i), as it is does not involve an offering of any  goods or services which is the essence of Policy ¶ 4(c)(i); moreover, it is difficult to see how the Respondent's use of the domain name is bona fide; it can scarcely be bona fide when it consists solely of assertions with no evidence to support the allegations and it gives no indication to the internet user as to where it can find any such evidence; it also does not give the Complainant and the individuals named any opportunity to reply to or refute the allegations, either before or after they are made public; finally, it appears from the Respondent's website at www.flokinet.is, which is in evidence, that it is providing an anonymous hosting service for others and that its business plan is such that, on the present facts, the Complainant would be unlikely ever to find out who is behind the allegations made against it and its employees; all of these features make it very dubious whether the use can properly be described as bona fide; in any event, the Panel is not persuaded that the use is bona fide;

(b)        the Respondent is not commonly known by the disputed domain name within the meaning of Policy ¶ 4(c)(ii); there is no evidence that the Respondent, the registrant of the domain name, is known by the domain name, commonly or otherwise and there is no evidence that it is known by any name other than its own;

(c)       the Respondent has not used the domain name for a legitimate non-commercial or fair use within the meaning of Policy ¶ 4(c)(iii) but rather has used the domain name for improper commercial gain showing that its conduct is not legitimate and not fair and involves tarnishment of the Complainant's trademark; the Panel's assessment of the evidence is that the domain name has not been used for a noncommercial purpose; there is an obvious commercial element in online casinos and the software the Complainant provides for it; in particular, the website content cannot be genuine and legitimate criticism if the allegations are made, as they clearly are, under a pretext for cybersquatting and because the Respondent has in all probability made them for its own commercial benefit; the detail  on the website and its tone suggest a very definite commercial involvement; also the name and web address of the Respondent are in evidence and can be examined on the internet and it seems clear that the Respondent is providing a commercial service; thus the use to which the Respondent has put the domain name is not noncommercial; the Panel is also not prepared to conclude that the use is legitimate; its purpose seems to the Panel to be entirely to denigrate the Complainant and its employees without any evidence and to tarnish the SOFTSWISS trademark and brand, which it has done anonymously and with no opportunity for the Complainant to reply; more importantly, none of the allegations made are supported by any facts or evidence or hints as to where or how the reader might find the evidence in support of such serious allegations, if such evidence exists at all; nor can it be fair to the Complainant when the allegations being made against it are essentially anonymous with little prospect of it ever discovering who is actually making the allegations; taking everything into account that Panel finds that the Respondent has not used the domain name for a legitimate non-commercial or fair use within the meaning of Policy ¶ 4(c)(iii) and thus it could not show a right or legitimate interest in the domain name; and

(d)       the Complainant's case shows that the Respondent could not be able to make out a right or legitimate interest in the domain name on any ground set out in Policy ¶ 4(c); nor is there any other ground on which it could be shown that the Respondent has a right or legitimate interest in the disputed domain name.

The Complainant has therefore made out a persuasive case for all of the grounds it relies on to show that the Respondent does not have a right or legitimate interest in the disputed domain name.

 

All of these matters make out the prima facie case against the Respondent. The Respondent has not filed a Response and is in default and has thus not rebutted the prima facie case against it.

 

The Complainant has therefore made out the second of the three elements it must establish under the Policy.

 

Registration and Use in Bad Faith

It is clear that to establish bad faith for the purposes of the Policy, the Complainant must show that the disputed domain name was registered and used in bad faith. It is also clear that the criteria set out in the Policy ¶ 4(b) are not exclusive but that domain name proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression.

The Complainant has submitted that the Respondent has registered and used the disputed domain name in bad faith on several grounds. In view of the evidence discussed above, which is equally applicable to bad faith as it is to rights and legitimate interests and which it is not necessary to repeat, it is clear that the Complainant has made out all of the grounds relied on. The Respondent has clearly been motivated by bad faith in the registration and use of the domain name and in particular in the use of the website to carry allegations that the Complainant and its employees are cybercriminals and have engaged in fraud and online casino scams. In particular, it is clear from the evidence that, as the Complainant has submitted:

(a)                      the material on the website is calculated to discourage intent users from using the Complainant's services, showing the intention to stop the Complainant's business by disrupting it; the evidence therefore brings this matter within the meaning of Policy ¶ 4(b)(iii); it is made worse by using the Complainant's own trademark to perpetrate the disruption and by doing so by means of an anonymous source;

(b)                      the Respondent registered the domain name on August 28, 2024 and the Complainant had used its common law trademark rights from at least 2009 and obtained its trademark registrations of the SOFTSWISS trademark from 2021; this shows that the Respondent was well aware of the Complainant's trademark rights and had actual notice of them when it registered the domain name; this is one of the indicia of bad faith registration and it is made out on the evidence;

(c)                      the use of the word "scam" in the domain name and the use of the domain name to disseminate defamatory statements show that the Respondent intended to tarnish the SOFTSWISS trademark and the Complainant's reputation in bad faith; and

(d)                      all of the acts, facts, matters and circumstances revealed by the evidence have shown that the Respondent registered and used the disputed domain name in bad faith.

Finally, in addition to the specific provisions of the Policy and having regard to the totality of the evidence, the Panel finds that, in view of the Respondent's registration of the disputed domain name using the SOFTSWISS trademark and in view of the conduct of the Respondent, as shown by all of the available evidence, the Respondent registered and used the disputed domain name in bad faith within the generally accepted meaning of that expression. It is clear that, from the beginning, the Respondent set about targeting the Complainant and its employees, defaming them and misleading internet users by asserting that the Complainant and its employees were guilty of the criminal acts alleged on the website.

The Complainant has thus made out the third of the three elements that it must establish.

The Complainant has also correctly cited numerous prior UDRP decisions that support all of its contentions.

The Complainant has therefore established all of the elements that it must show under the Policy and it is entitled to the relief it seeks.

 

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 <softswissscam.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

The Honorable Neil Anthony Brown KC

Panelist

Dated: February 10, 2025