The Complainant is Stanworth Development Limited, Isle of Man, United Kingdom of Great Britain and Northern Ireland, represented by Bowman Gilfillian Incorporated, South Africa.
The Respondent is Chad Creighton, Limassol, Cyprus.
2. The Domain Name and Registrar
The disputed domain name <casinoriverbelle.com> is registered with GoDaddy.com, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 12, 2009. On March 13, 2009, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the disputed domain name. On March 13, 2009, GoDaddy.com, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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 March 17, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was April 6, 2009. The Respondent did not submit any Response. Accordingly, the Center notified the Respondent's default on April 9, 2009.
The Center appointed Gerd F. Kunze as the sole panelist in this matter on April 20, 2009. 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 operates since 1997 through its licensee the online gaming site “www.riverbelle.com”. It is the owner of a number of trademark registrations consisting of or incorporating the words RIVER BELLE (the term “trademark” is used for both trademark and service mark registrations). It owns in particular the following registrations for entertainment services, namely providing on-line games in cl. 41:
(a) Trademark THE RIVER BELLE ONLINE CASINO (words with device showing a river boat)
Australia: registration no. 880050 of March 8, 2003
United Kingdom: registration no 2273747 of December 7, 2001
United States: registration no. 2843472 of May 18, 2004, with filing date of June 20, 2001
(b) Trademark THE RIVER BELLE ONLINE CASINO word mark:
Community Trade Mark no. 3131448 of June 28, 2004, with filing date of April 14, 2003
(c) Trademark RIVER BELLE, word mark
Australia: registration no. 1021696 of May 23, 2005 (filing date September 22, 2004)
Community Trade Mark no. 3937026 of September 21, 2005, filed July 16, 2004
The registrations listed under (a) and (b) have a filing date prior to the registration date of the domain name <casinoriverbelle.com>.
The Respondent registered the domain name <casinoriverbelle.com> on July 30, 2003.
On November 10, 2008, the legal representatives of the Complainant sent a “cease and desist” letter to the Respondent, in which, amongst others, they referred to the Respondent's use of his domain name for pointing it to a website offering competing goods and services, and requested the transfer of the domain name. On November 28, 2008 the Respondent replied by email to the Complainant's legal representatives as follows: “This generic domain was registered in 2003. According to your request, I have deactivated the domain forwarding.”
5. Parties' Contentions
A. Complainant
The Complainant submits that the “www.riverbelle.com” gaming site receives about 250,000 visitors and facilitates over 25,000 software downloads each month. Many thousands of registered players regularly make use of the gaming site with a substantial portion being active on the site at any given time.
The Complainant furthermore submits that as a result of the extensive use of the RIVER BELLE trademark it is well known in relation to the provision of on-line games of chance and casino-style gaming services. It considers that the words RIVER BELLE serve as a unique and distinctive element, which is a determinative and well-known designation of source for the Complainant's on line casino and gaming related services.
B. Respondent
The Respondent did not reply to the Complainant's contentions. He has therefore not contested the allegations of the Complaint and the Panel shall decide on the basis of the Complaint's submissions, and all the inferences that can reasonably be drawn there from (Rules, paragraph 14(b)).
6. Discussion and Findings
A. Identical or Confusingly Similar
The domain name <casinoriverbelle.com> consists of a combination of the three words “casino”, “river” and “belle”. Whilst the word “casino” is descriptive for gambling services, the word combination “river belle” is distinctive for such services. This view is confirmed by the Australian and Community Trade Mark registrations for the word mark RIVER BELLE of the Complainant (which bear filing and registration dates later than the date of registration of the Respondent's domain name).
As listed above 4 a) and b), the Complainant owns trademark registrations, containing the distinctive word combination “river belle” with a filing date prior to the registration of the Respondent's domain name. In particular, the Community Trade Mark registration for the word mark THE RIVER BELLE ONLINE CASINO (above 4(b) consists of a combination of this distinctive term RIVER BELLE with the purely descriptive words “the”, “online” and “casino”. Taking furthermore into account, that both the prior trademark of the Complainant and the domain name of the Respondent contain the word “casino” (even if in different sequences), which means that the whole domain name is contained in the Complainant's trademark, the Panel considers that the domain name <casinoriverbelle.com> is confusingly similar to the trademark THE RIVER BELLE ONLINE CASINO (the gTLD “.com” need not be taken into consideration when judging identity or confusing similarity). The Panel considers furthermore that the domain name of the Respondent is also confusingly similar to the trademark THE RIVER BELLE ONLINE CASINO words with device showing a river boat (above 4(a)). That trademark, which is shown on the Complainant's website “www.riverbelle.com”, displays the word sequence “RIVER BELLE” prominently. “RIVER BELLE” is therefore the main distinctive part of the trademark. The many visitors of the Complainant's website, who are accustomed to recognize the Complainant's online gambling business under the distinctive term “RIVER BELLE”, as prominently shown on the Complainant's trademark, may believe that the domain name <casinoriverbelle.com> belongs to the Complainant.
In conclusion, the domain name <casinoriverbelle.com> is confusingly similar to trademarks in which the Complainant has rights.
B. Rights or Legitimate Interests
“River belle” is not here a descriptive term, in which the Respondent might have a legitimate interest. It is identical to the main distinctive part of several prior trademark registrations of the Complainant and also identical to the Complainant's website “www.riverbelle.com”. The Respondent has no connection or affiliation with the Complainant, who has not consented to the Respondent's use of the domain name, which combines the descriptive word “casino” with the term “riverbelle”.
Furthermore, none of the circumstances listed under paragraph 4(c) of the Policy, possibly demonstrating rights or legitimate interests, are given. The Respondent does not use the domain name <casinoriverbelle.com> for his own legitimate commercial or noncommercial business, if any, and he has not demonstrated any preparations for such use. Finally, for the same reason that the Respondent does not promote his own commercial activities with the help of this domain name, the Respondent has not been able to become commonly known under it.
In the absence of any submission of the Respondent, the Panel therefore concludes that the Respondent has no rights or legitimate interests in the domain name <casinoriverbelle.com>.
C. Registered and Used in Bad Faith
The Respondent has not offered the domain name to the Complainant for sale and he does not use it for his own noncommercial activity. However, he did not simply stockpile the domain name. Before he received the “cease and desist” letter of the Complainant, he used it for a “click-through” website providing on-line games, casino-style gaming services and related services, which are in direct competition to the games and related services offered by the Complainant through its “www.riverbelle.com” gaming site. Such “click-through” websites are typically set up to provide “click through” revenues. As a consequence of the cease and desist letter of the Complainant, the Respondent deactivated this link and confirmed by email to the Complainant: “According to your request I have deactivated the domain forwarding.”
Internet users, seeking the services of the Complainant, are likely to type “www.casinoriverbelle.com” into a web browser in an attempt to locate the “RIVER BELLE” online casino game services of the Complainant. Such users were diverted to the webpage used by the Respondent where competing gaming services were offered. Under the circumstances, the Respondent has intentionally attempted to attract Internet users to his website, for commercial gain, by creating a likelihood of confusion with the Complainant's trademark THE RIVER BELLE ONLINE CASINO (word and word with device; above 6(A). That the Respondent deactivated the domain name after having received the cease and desist letter, does not exclude bad faith. The Respondent did not react to the request to transfer the domain name to the Complainant and did not undertake not to make unauthorised use of the Complainant's trademarks in any manner whatsoever, as requested in the cease and desist letter. He even expressed the view that his domain name be “generic”. He may therefore at any point in time reactivate the domain name. Under the circumstances the current deactivation of the domain name must be considered to continue to be use in bad faith under the Policy for the purpose of the request of the Complainant that the domain name be transferred to it.
In conclusion the Respondent has registered and is using the domain name <casinoriverbelle.com> in bad faith.
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 <casinoriverbelle.com> be transferred to the Complainant.
Gerd F. Kunze Sole Panelist
Dated: May 4, 2009
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