WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Danske Spil A/S v. Peter Joergensen
Case No. D2011-0298
1. The Parties
The Complainant is Danske Spil A/S of Brøndby, Denmark, represented by Zacco Denmark A/S, Denmark.
The Respondent is Peter Joergensen of Skoedstrup, Denmark.
2. The Domain Name and Registrar
The disputed domain name <danskespil.info> is registered with CSL Computer Service Langenbach GmbH dba Joker.com (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 11, 2011. On February 15, 2011, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 17, 2011, the Registrar 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 February 25, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was March 17, 2011. The Respondent sent an email communication on February 25, 2011 but did not submit a formal response.
The Center appointed Knud Wallberg as the sole panelist in this matter on April 6, 2011. 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.
As a preliminary matter, the Panel has determined that the language of this proceeding is English. The languages of the Registration Agreement are German and English. In conformity with the Rules, paragraph 11(a), the language of the administrative proceeding may be English or German. The Complaint was filed in English, and the email communication received from the Respondent was likewise in English. In the circumstances, the Panel is satisfied that the proceeding may be conducted in English.
4. Factual Background
The Complainant is a gaming company created by the Danish Parliament in July 1948 and the Danish State holds 80% of the shareholdings. Danske Spil Group has an annual turnover of DKK 10.9 billion. The Complainant’s gaming business includes all types of betting and lottery games distributed through authorized agents and businesses. The Complainant owns numerous betting shops and uses electronic communication between players and the company.
The Complainant owns the registered trademark DANSKE SPIL in Denmark. The earliest registration has priority from January 5, 2001.
5. Parties’ Contentions
A. Complainant
The domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights
The disputed domain name was created on January 12, 2010. The disputed domain name consists of the Complainant's Danish company name and trademark which is well-known in Denmark.
The Respondent has no rights or legitimate interests in respect of the domain name
The Respondent is not known by the name DANSKE SPIL nor has he any trademark registrations hereof. The Complainant has not authorized the Respondent's use and registration of the disputed domain name incorporating the Complainant's trademark.
The domain name was registered and is being used in bad faith.
The Respondent is a Danish citizen who can be assumed to be well aware of the existence of the Complainant's business and trademark which is well-known in Denmark. The disputed domain name consists of the Complainant's well-known Danish company name and trademark. The Respondent who is a Danish citizen has most likely registered the disputed domain name with the purpose of selling it to the Complainant at an overprice. It is obvious that the Respondent has registered the disputed domain name <danskespil.info> for commercial gain and with the purpose of capitalizing on the fame of the Complainant’s trademark DANSKE SPIL. The disputed domain name clearly alludes to the Complainant and is being used in bad faith because the Respondent intentionally attempts (for commercial purpose) to attract Internet users to his website by creating a likelihood of confusion with the Complainant’s well-known mark.
B. Respondent
The Respondent did not file a formal reply to the Complainant’s contentions. The Respondent did however state the following in an e-mail to the Center of February 25, 2011:
“I disagree in the statements where the spokesperson for Danske Spil mentions f.x.:
It is obvious that the respondent has required the domain name <danskespil.info>for commercial gain and with the purpose of capitalizing on the fame of our client’s trademark DANSKE SPIL.
If you need futher information about the reason for establishing the domain [<]danskespil.info[>] please come back to me. I can futher inform that I have never taken any active or other action or intend to take such action in order to sell the domain name to [<]danskespil.dk[>] The domain is an .info domain which is international and the danish company danskespil does to my knowledge not have any trademark rights concerning this .info domain.
The danish words danske and spilis common words and allthough the full word Danskespil is a danish brand is is also two common words that often is used to find websites with this content.
If you need futher information you are welcome to contact me again.”
6. Discussion and Findings
According to paragraph 15(a) of the Rules the Panel shall decide a complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:
(1) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(2) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(3) the disputed domain name has been registered and is being used in bad faith.
Paragraph 4(a) of the Policy states that the burden of proving that all these elements are present lies with the Complainant. At the same time, in accordance with paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules, or any request from the Panel, the Panel shall draw such inferences there from as it considers appropriate.
To begin with, the Panel finds that the informal email communication received by the Center on February 25, 2011 does not qualify to be a formal response to the Complaint. However, as it contains some argumentation on the merits of the case, the informal communication will nevertheless be considered by the Panel in its decision.
A. Identical or Confusingly Similar
The disputed domain name contains the Complainant’s registered and well-known mark DANSKE SPIL with the addition of the “.info” gTLD designation. Since the top-level designation may be disregarded for the purpose of this proceeding, the Panel finds that the disputed domain name is identical to a mark in which the Complainant has rights.
The Panel therefore finds that the conditions in paragraph 4(a)(i) of the Policy are fulfilled.
B. Rights or Legitimate Interests
According to the Complaint, the Complainant has not licensed or otherwise permitted the Respondent to use its trademark.
The Complainant has established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. The Respondent has not rebutted this neither by way of a formal response nor in the above mentioned communication to the Center.
In the above quoted submission the Respondent does claim that “The danish words danskeand spil is common words and although the full word Danskespil is a danish brand is also two common words that often is used to find websites with this content”. The Panel recognizes that “danske” and “spil” are generic and descriptive words meaning “Danish” and “games” respectively. The Panel perceives this as a claim by the Respondent that the Respondent has a legitimate interest in the disputed domain name. However, the disputed domain name is not used to provide information on “Danish games”, gaming activities in Denmark or other possible uses of the words in their generic sense. Rather the disputed domain name is used for a website that appears to be an online portal offering information on various online gaming activities in general and with references and links to providers of online gaming activities that are in competition with the services offered by the Complainant, in particular to the provider “ctbu.nu”. The Panel therefore finds that the Respondent has not justified to have any rights or legitimate interests in the disputed domain name.
Consequently the Panel finds that the conditions in paragraph 4(a)(ii), cf. paragraph 4(c) of the Policy are also fulfilled.
C. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy requires the Complainant to prove both registration and use of the disputed domain name in bad faith. Paragraph 4(b) of the Policy provides examples of circumstances which shall be evidence of registration or use in bad faith:
(i) circumstances indicating that the domain name holder has registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the holder’s documented out-of-pocket costs directly related to the domain name; or
(ii) the domain name holder has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the domain name holder has engaged in a pattern of such conduct; or
(iii) the domain name holder has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the domain name holder has intentionally attempted to attract, for commercial gain, Internet users to the domain name holder’s website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the holder’s website or location or of a product or service on the domain name holder’s website or location.
Accordingly, for the Complainant to succeed, the Panel must be satisfied that the disputed domain name has been registered and is being used in bad faith.
The registration date of the disputed domain name clearly postdates the filing date and the registration date of the Complainant’s trademark. This mark is well-known in Denmark, which is the place of residence of the Respondent, and it is inconceivable to the Panel that the Respondent registered the disputed domain name without prior knowledge of the Complainant and its trademark DANSKE SPIL.
The Panel notes that the Respondent seems to recognize knowledge of the Complainant’s national trademark, but he argues that this right does not extend to “.info” domain names being an “international” domain name. This perception of the gTLDs and of the rights which a complainant can invoke under the UDRP is however not correct, and the Panel therefore finds that the disputed domain name was registered in bad faith.
The Respondent is using the disputed domain name actively for what appears to be a webpage containing information on various online games and containing links to companies offering services that are in competition with the services offered by the Complainant. The webpage also contains click through ads.
The Panel therefore finds that the Respondent’s use of the disputed domain name is likely to disrupt the Complainant’s business and that by using the domain name in the described manner, the Respondent has intentionally attempted to attract, for some kind of commercial commercial gain, Internet users to the website “www.danskespil.info” or the other online locations to which there are references or links, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website and of the information and services contained on the website. The disputed domain name is thus used in bad faith.
Considering all the facts and evidence, the Panel therefore finds that the requirements of paragraph 4(a)(iii) of the Policy are also fulfilled in this case.
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 disputed domain name <danskespil.info> be transferred to the Complainant.
Knud Wallberg
Sole Panelist
Dated: April 15, 2011
