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and Mediation Center
ADMINISTRATIVE PANEL DECISION
Microgaming Software Systems Limited v. E Net Marketing Ltd.
Case No. D2007-0013
1. The Parties
The Complainant is Microgaming Software Systems Limited, MGS House, Isle of Man, United Kingdom of Great Britain and Northern Ireland, represented by Bowman Gilfillan Inc., South Africa.
The Respondent is E Net
Marketing Ltd., Antigua, Antigua and Barbuda.
2. The Domain Name and Registrar
The disputed domain name
<microgamingcasinos.com> is registered with Moniker Online Services, LLC.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 5, 2007. On January 8, 2007, the Center transmitted by email to Moniker Online Services, LLC a request for registrar verification in connection with the domain name at issue. On January 12, 2007, Moniker Online Solutions, LLC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, 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 on January 15, 2007. The Center verified that the Complaint together with the amendment to 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 January 15, 2007. In accordance with the Rules, paragraph 5 (a), the due date for Response was February 4, 2007. When notified of the pending case, the Respondent was advised of the consequences of failing to respond. The Respondent did not submit any response. Accordingly, the Center notified the Respondent of its default on February 5, 2007.
The Center appointed John E. Kidd as the sole panelist in this matter on February 16, 2007. 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.
Having reviewed the communication records, the Panel finds that the Center has discharged its responsibilities under paragraph 2(a) of the Rules “to employ reasonably available means calculated to achieve actual notice to the Respondent”. In the view of the Panel, the proper procedures have been followed and it may issue its decision based upon the documents submitted in accordance with the Policy, the Rules and the Supplemental Rules without the benefit of a response from the Respondent.
The supplement brief filed
by the Complainant is not authorized by the Rules; and was not considered by
4. Factual Background
The Complainant was founded in 1994 and developed and released it’s online casino software, which is purportedly utilized by more than 100 online casinos.
On all of the above online casino websites and gaming sites the Complainant’s MICROGAMING trademark is prominently displayed as a service endorsement. The endorsement comprises a prominent caption on the homepage of these websites.
The Complainant has been using this trademark MICROGAMING in the course of trade since its inception in 1994 and registered <microgaming.com> as a domain name on August 18, 1996.
The Complainant is also the exclusive licensee of a number of pending and registered trademarks consisting of or incorporating the word MICROGAMING (thereinafter the MICROGAMING trademarks) in various jurisdictions including the United States of America, the United Kingdom, the European Union, Canada and Australia.
The trademarks cover in general computer software for games of chance, gaming or casino style gaming, entertainment and online casino management services.
The Complainant’s MICROGAMING trademarks are purportedly displayed as a service endorsement by online casino websites and gaming sites.
The Complainant’s “www.microgaming.com” website receives in the region of 250,000 visitors per annum.
The Respondent according to the Moniker.com WHO IS database registered the disputed domain name on September 29, 2005, nearly eleven years after the Complainant first commenced use of its MICROGAMING trademark.
On November 24, 2006, the Complainant sent a letter to the Respondent informing the Respondent of Complainants prior and extensive rights in and to its MICROGAMING trademarks and demanding that it transfer the domain name in dispute to Complainant.
The Respondent did not
5. Parties’ Contentions
The Complainant’s casino software using its trademark MICROGAMING was the world’s first use for online casino and the Complainant has not acquiesced to the use of its trademarks but instead has diligently sought to enforce its trademark rights against the Respondent.
The disputed domain name is not the only name which the Respondent can use to describe its business and the Respondent could have used any number of other domain names to describe its business.
The Respondent is neither an agent nor a licensee of the Complainant and has no connection or affiliation with the Complainant.
The Respondent is essentially trading on the goodwill and reputation of the Complainant’s MICROGAMING trademark to promote the products and services of other poker websites by including a number of links to sites that compete directly and indirectly with the Complainant.
The Complainant has spent a considerable sum of money every year in advertising and promoting its online casino and gaming software.
As a result of this extensive use, the MICROGAMING trademark is very well known in relation to online casino and gaming software. The word “MICROGAMING” serves as a unique and distinctive element which is a determinative and well known designation of source for the Complainant’s online casino and gaming related software.
The Complainant further contends that (i) the disputed domain name is identical or confusingly similar to the Complainant’s trademarks; (ii) the Respondent has no rights or legitimate interests in respect of disputed domain name; and (iii) the disputed domain name was registered and is being used in bad faith.
The Respondent did not
reply to the Complainant’s contentions.
6. Discussion and Findings
In light of the Respondent’s
failure to submit a response, the Panel, pursuant to the Rules, may draw such
inferences, including adverse inferences, as it considers appropriate. See Wal-Mart
Stores, Inc. v. Kani, WIPO Case No. D2006-0032.
A Identical or Confusingly Similar
The disputed domain name wholly incorporates the Complainant’s trademark MICROGAMING. The inclusion of the generic work “casinos” does not add distinctive matter so as to distinguish it from the Complainant’s trademark. The Panel finds that the combination of the Complainant’s trademark name and a second term which indicates the business for which the trademark was registered is a confusingly similar use of the Complainant’s trademark. It is also the Panel’s opinion that there is a substantial likelihood that Internet users and consumers will be confused into believing that there is some application, connection, sponsorship, approval or association between the Complainant and the Respondent, when in fact there is no such relationship.
B. Rights or Legitimate Interest
The disputed domain name points to a website providing information about casino and gaming services through which website competency and/or related goods and services to those of the Complainant can be accessed. In the Panel’s opinion this does not amount to a bona fide offering of goods and services.
Therefore the Respondent has no right to the use of the MICROGAMING trademark or trademarks confusingly similar to this trademark. Further, the Respondent has no legitimate interest in the disputed domain name and there is no evidence that the Respondent has made a good faith or fair use of the disputed domain name.
The evidence is not disputed
that the Respondent has not been commonly known by the disputed domain name
and has not acquired any trademark rights in the disputed domain names. Because
of the fact that the Complainant’s MICROGAMING trademark is so well known
in relation to casino and gaming services the Panel concludes that the Respondent
knew, or at least should have known, of the Complainant’s prior rights
before registering the disputed domain name. In light of the above and lack
of any explanation or justification by the Respondent for adopting a domain
name incorporating a distinctive mark of another, the Panel concludes that the
disputed domain name could not have been put to legitimate use by the Respondent.
See SembCorp Industries Limited v. Hu Huan Xin, WIPO
Case No. D2001-1092.
The Panel also views the
Respondent’s failure to respond as further evidence that it has no rights
or legitimate interests in the disputed domain name. See Sallie Mae, Inc.
v. Martin Marketing, WIPO Case No. D2004-0357.
C. Registered And Used In Bad Faith
In view of the Complainant’s long established reputation and use of its MICROGAMING trademark in relation to online gaming and casino services, in the Panel’s opinion it is highly unlikely that the Respondent just happened to inadvertently select the Complainant’s trademark and incorporate it into its disputed domain name. Furthermore, the Respondent’s registration occurred nearly eleven years after the Complainant’s first use of the MICROGAMING trademark. In the Panel’s opinion the Respondent’s registration of the disputed domain name was in bad faith. Since the Complainant has not acquiesced in the use of its trademark but instead has sought to enforce its trademark rights against the Respondent, the continued use of the disputed domain name to redirect internet users to websites of competing organizations is in the Panel’s view, bad faith use and registration.
Internet users are likely to employ the disputed domain name when attempting to locate the Complainant’s website. Upon entering the disputed domain name, internet users have been “mousetrapped” to a website that the users were not looking for and that advertises service that are not sponsored or endorsed by or affiliated with the Complainant.
The Respondent’s failure to respond to the
Complainant’s letter of demand and failing to respond to the allegation
of this complaint are further evidence of registering and using the disputed
domain name in bad faith.
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 <microgamingcasinos.com> be transferred to the Complainant.
John E. Kidd
Dated: March 2, 2007