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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Western Union Holdings, Inc. v. Manuel Rodriguez

Case No. D2006-0850

 

1. The Parties

The Complainant is Western Union Holdings, Inc., United States of America, represented by Sutherland Asbill & Brennan, LLP, United States of America.

The Respondent is Manuel Rodriguez, Panama.

 

2. The Domain Name and Registrar

The disputed domain name <casinowesternunion.com> is registered with Go Daddy Software.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 3, 2006. On July 5, 2006, the Center transmitted by email to Go Daddy Software a request for registrar verification in connection with the domain name at issue. On July 5, 2006, Go Daddy Software transmitted by email to the Center its verification response confirming that the Respondent is not listed as the registrant and providing the registrant’s names , contact details for the administrative, billing, and technical contact. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint relating to these proceedings on July 19, 2006. The Center verified that the Complaint together with the amendment to the Complaint (collectively, “the Complaint”) satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).

In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on July 24, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was August 13, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 17, 2006.

The Center appointed James A. Barker as the sole panelist in this matter on August 28, 2006. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.

 

4. Factual Background

The Complainant is the owner of a large number of trademarks and service marks including the word mark WESTERN UNION. The Complainant uses the marks in connection with communication and financial services throughout the world.

The Complainant actively promotes its marks and, through its parent company, holds many domain names that incorporate the words WESTERN UNION, including <westernunion.com>.

 

5. Parties’ Contentions

A. Complainant

The following contentions are summarised from the Complaint.

Identical or confusingly similar

The disputed domain name is confusingly similar to the Complainant’s mark WESTERN UNION. The addition of the generic word “casino” does not alter this fact. See e.g. Hachette Filipacchi Presse v. Vanilla Limited/Vanilla Inc/Domain Finance Ltd., WIPO Case No. D2005-0587.

The disputed domain name consists of the Complainant’s WESTERN UNION mark and a generic word. The Complainant’s famous WESTERN UNION marks are highly distinctive of the Complainant’s business. It is irrelevant that Complainant is not in the online gambling business, because the question of confusing similarity is directed to a comparison of the disputed domain name and the trademark right at issue, not the goods and services that are provided at the web sites for the disputed domain name. See e.g., Pfizer Inc. v. BargainName.com, WIPO Case No. D2005-0299.

Rights or legitimate interests

There is no evidence that the Respondent has rights in the disputed domain name, within the meaning of paragraph 4(c) of the Policy. To the contrary, the Respondent has used the disputed domain name to divert Internet users to a website which appears to be a “directory site”, which links to sites that relate to online gambling and other activities. Because on-line gambling is illegal under US federal law, the Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services.

Even if the disputed domain name were aimed at legal activities, the Respondent’s use of the domain name would not be bona fide. As a leading money transfer services company, the Complainant is aware that many individuals who engage in online gambling use money transfer services to fund their accounts at online gambling sites. It is therefore not uncommon for the customers of online gambling companies to perform online searches to determine which sites will accept funds from their customers via the money transfer services of companies such as the Complainant. It is abundantly clear that Respondent has relied on the fame and goodwill of the Complainant’s marks to capitalize on common search terms and thereby capture a greater amount of Internet traffic. Such a use is not bona fide.

Further, the Respondent is not commonly known by the disputed domain name, nor is the Respondent making a non-commercial fair use, within the meaning of the Policy, paragraphs 4(c)(ii) or (iii).

Bad faith

The Respondent has registered and used the disputed domain name in bad faith, within the meaning of paragraph 4(b)(iv) of the Policy. Here, the Respondent seeks to take advantage of the Complainant’s mark, to direct Internet traffic to its directory site, through which the Respondent appears to be gaining revenue for all “clicks” from Internet visitors. The Respondent would not have registered the disputed domain name unless it intended to trade on the valuable goodwill and the rights of the Complainant. All the evidence suggests that the Respondent’s registration of the disputed domain name was calculated rather than accidental.

The Respondent has also failed to provide and maintain accurate Whois information, which is further evidence of the Complainant’s bad faith.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

 

6. Discussion and Findings

Paragraph 4(a) of the Policy provides that, for the Complainant to succeed and have the disputed domain name transferred to it, the Complainant must prove that:

i. the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

ii. the Respondent has no rights or legitimate interests in respect of the disputed domain name; and

iii. the disputed domain name has been registered and is being used in bad faith.

The Complainant must prove all of these elements. These elements are discussed in turn as follows.

A. Identical or Confusingly Similar

It is clear that the disputed domain name is confusingly similar to the Complainant’s WESTERN UNION mark. The Complainant’s mark is incorporated entirely and exactly in the disputed domain name (except for the lack of a space between “western” and “union”, which is an immaterial difference for the purpose of the Policy). The Complainant’s mark is the distinctive and dominant element of the disputed domain name.

The addition of the word “casino” does not reduce the risk of confusingly similarity. If anything, the addition of that word is likely to increase the risk of confusing similarity. In a general way, both the Complainant’s mark and the word “casino” are associated with money. Further, as noted by the Complainant, those who engage in online gambling may use the services of a money transfer service, such as that offered by the Complainant. For these reasons, the addition of the word “casino” to the Complainant’s mark, would naturally not offset the risk of confusion with that mark.

The Panel therefore finds that the Complainant has proved the first element of the Policy.

B. Rights or Legitimate Interests

The Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain name, because there is no evidence that would satisfy the factors set out in paragraph 4(c) of the Policy. Paragraph 4(c) of the Policy provides that a Respondent may demonstrate rights or legitimate interests if the Respondent (i) has used or undertaken demonstrable preparations to use, a domain name in connection with a bona fide offering of goods or services, or (ii) is commonly known by the domain name, or (iii) is making a legitimate noncommercial or fair use of the domain name.

It is well-established under the Policy that once a Complainant has established a prima facie case under paragraph 4(c), the burden shifts to the Respondent to show evidence of its rights or legitimate use. The Respondent has failed to respond to the Complainant, and so has provided no evidence of any rights or legitimate interests in the disputed domain name.

In relation to paragraph 4(c)(ii) of the Policy, there is no evidence that the Respondent is known by the disputed domain name. Rather, the Respondent in this case is registered as “Manuel Rodriguez”.

In relation to paragraph 4(c)(iii) of the Policy, it is clear that the Respondent is not making a noncommercial use of the disputed domain name. The disputed domain name reverts to a site concerned with gambling. A domain name used in connection with the promotion of gambling is self-evidently a commercial use.

In relation to paragraph 4(c)(i) of the Policy, the Respondent’s use of the disputed domain name is not bona fide. The Respondent has used the disputed domain to redirect users to websites connected with gambling. The Complainant’s mark is well-known, and the Respondent was most likely aware of it when the disputed domain name was registered. There is no evidence that the Respondent has used that mark other than to redirect users by creating confusion with the Complainant’s mark. On the available evidence, there does not appear to be any association between the terms “western union” and the Respondent’s website. The Respondent is not known by those terms, and there is no mention of them on the Respondent’s website.

The Complainant argues that the Respondent does not make a bona fide use, because online gambling is illegal in many states of the United States, including in Arizona where the Registrar is located. But, for completeness, the Panel notes that its finding above is not made for this reason. The same argument has been previously rejected in relation to online gambling and the law of the United States. (See, Las Vegas Sands, Inc .v. The Sands of the Caribbean , Las Vegas Sands, Inc. v. George Samuel, WIPO Case No. D2001-1157.)

There are two other reasons not to accept this submission by the Complainant.

Firstly, accepting the argument based on illegality in some jurisdictions in the United States would, in effect, mean that the law of one particular jurisdiction would be determinative of an element of the Policy. Although the law of a jurisdiction may be taken into account by a Panel in accordance with paragraphs 10(a) and (d) of the Policy, that law cannot on its own determine the application of the Policy. The Policy applies independently of national law.

Secondly, whether a respondent is making a bona fide use of a disputed domain name is determined on an assessment of all the relevant evidence. The illegality of the use of a domain name may be relevant in some cases. (See, e.g. Verio Inc. v. Sunshinehh, WIPO Case No. D2003-0255, where the possible illegality of the goods advertised on the Respondent’s website were found to be relevant). But in this case, the use is clearly not illegal in all jurisdictions, and there is no evidence of whether the use is legal in the jurisdiction where the Respondent apparently resides. In this Panel’s view, illegality in one jurisdiction will be marginally relevant, unless it can be shown that the jurisdiction’s law applies where the Respondent resides or principally conducts its activities.

For the reasons discussed above, the Panel finds that the Complainant has in any case proved the second element of the Policy.

C. Registered and Used in Bad Faith

The Complainant argues that that the Respondent has registered and used the disputed domain name in bad faith under paragraph 4(b) of the Policy. Paragraph 4(b) of the Policy provides that there is evidence of registration and use in bad faith in circumstances where a respondent has, by using the domain name, intentionally attempted to attract, for commercial gain, Internet users to the Respondent’s website by creating confusion as to the source, sponsorship, affiliation or endorsement of the Respondent’s website.

As found above, the circumstances in paragraph 4(b) of the Policy are present in this case. The disputed domain name is confusingly similar to the Complainant’s mark. It is likely that the Respondent knew of the Complainant’s mark, and has sought to obtain a commercial benefit by attracting Internet users based on that confusion.

For these reasons, the Panel finds that the Complainant has proved the third element of the Policy.

 

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <casinowesternunion.com> be transferred to the Complainant.


James A. Barker
Sole Panelist

Dated: September 11, 2006

 

Источник информации: https://www.internet-law.ru/intlaw/udrp/2006/d2006-0850.html

 

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