The Complainant is Navasard Limited of Limassol, Cyprus, represented by Giorgos Landas LLC, Cyprus.
The Respondent is Zhou Qian, Harbin Yi You Network Media Co., Ltd of Harbin, Heilongjiang, China, self-represented.
The disputed domain name <xbet.网络> (<xbet.xn--io0a7i>) is registered with HiChina Zhicheng Technology Ltd. (the “Registrar”).
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on December 6, 2017. On December 6, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 7 and 13, 2017, 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. On December 13, 2017, the Center sent an email in English and Chinese to the Parties regarding the language of the proceeding, and requested the Complainant to file an amendment regarding the Registrar’s address. The Complainant requested English be the language of the proceeding in the Complaint and has nothing further to add. On January 4, 2018, the Complainant submitted an amendment upon the Center’s request. The Respondent submitted an email in English on January 2, 2018, but did not comment on the language of the proceeding by the specified due date.
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” 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 and 4, the Center formally notified the Respondent in English and Chinese of the Complaint, and the proceedings commenced on January 8, 2018. In accordance with the Rules, paragraph 5, the due date for Response was January 28, 2018. The Respondent submitted four informal emails on January 8, 2018, January 9, 2018 and January 11, 2018. On January 11, 2018, the Complainant requested to suspend the proceeding. Accordingly, on the same day, the Center notified the Parties the proceeding will be suspended until February 10, 2018. On February 6, 2018, the Complainant requested to extend the suspension of the proceeding. The Center notified the Parties the suspension will be extended to March 12, 2018. On March 6, 2018, the Complainant requested to reinstitute the proceeding. The Center informed the Parties of the reinstitution of the proceeding and that the response due date was March 24, 2018. On March 8, 2018, the Respondent submitted an informal email in Chinese and English. On March 19, 2018, the Respondent submitted an email in Chinese indicating that it can’t understand English. On March 20, 2018, the Respondent requested to extend the response due date for four days. Accordingly, the Center notified the Parties that the response due date was extended to March 28, 2018. The Respondent submitted the Response on March 28, 2018. On April 10, 2018, the Complainant submitted Supplemental Filings with the Center.
The Center appointed Douglas Clark as the sole panelist in this matter on April 13, 2018. 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.
The Complainant is a company incorporated in Cyprus engaged in the business of sports betting. It is the registrant in the European Union of the trademark 1XBET registered since 2015 (e.g., No 013914254 registered on April 7, 2015).
The Respondent is an individual based in China.
The disputed domain name has been registered since June 1, 2017. The website under the disputed domain name does not resolve to any page.
The Complainant’s contentions are as follows:
The Complainant contends that the dispute domain name <xbet.网络> is confusingly similar to the Complainant’s registered trademark 1XBET because the disputed domain name differs from the Complainant’s mark by only having the number “1” removed. The addition of the generic Top-Level Domain (“gTLD”) does not avoid the finding of confusing similarity.
The Respondent has no connection with the Complainant or any of its affiliates and has never sought or obtained any license or trademark registration for XBET. It, therefore, has no rights or legitimate interests in the disputed domain names.
Before acquiring the disputed domain name, it is highly likely that the Respondent knew of the Complainant’s rights in the 1XBET mark because of the similarity between the Complainant’s and the Respondent’s logo. Even though the domain name is not being used, panel decisions have found that passive holding can be use in bad faith. After settlement negotiations, during the course of proceedings, the Respondent offered to sell the disputed domain name for USD100,000.
The Respondent replied:
(1) There were differences between the disputed domain name and the Complainant’s trademark. The disputed domain name did not include the Arabic letter “1” and the gTLD “网络” was added.
(2) The Respondent had legally registered the disputed domain name with Alibaba.
(3) The Respondent had not used the disputed domain name as they were still in preparatory stages for their business and therefore had not used the disputed domain name in bad faith. Further, betting was illegal in China and the Respondent had no intention of using the disputed domain name in relation to a business that was not legal.
After the parties had unsuccessfully attempted to reach a settlement, the Complainant made a supplemental filing to show that the Respondent had requested USD100,000 to transfer the disputed domain name to the Complainant. As this relates to an offer to sell the disputed domain name that occurred after the filing of the Complainant the Panel accepts this filing. (See sections 3.10 and 4.6 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)).
The language of the Registration Agreements is Chinese. Paragraph 11(a) of the Rules provides that:
“Unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.”
The Complainant requested the language of the proceeding to be English on grounds that the registrar’s website provided terms in English. Further, there would be expense and delay in translating the Complaint which would be unfair on the Complainant.
The Respondent requested the language or proceedings be in Chinese because it did not understand the legal issues clearly. The Respondent did before this request communicate with the Center in English and after this request communicate with the Respondent in English.
The Center made a preliminary determination to:
1) accept the Complaint as filed in English;
2) accept a Response in either English or Chinese;
3) appoint a Panel familiar with both languages mentioned above, if available.
The Respondent filed a Response in Chinese indicating it could understand the Complaint.
The final determination of the language of the proceeding lies with this Panel.
The Panel considers the merits of the case to be strongly in favour of the Complainant. The Respondent has written to the Complainant in English indicating it understands English. It has also filed a response in Chinese that showed it had understood the Complaint. Translating the Complaint would cause unnecessary delay in this matter.
These factors lead the Panel to determine to follow the Center’s preliminary determination and the Panel accepts the Complaint in English and the Response in Chinese. The Panel will render its decision in English.
The disputed domain name <xbet.网络> is confusingly similar to the Complainant’s 1XBET trademark. Only the numeral “1” has been removed when compared to the trademark. This may go unnoticed by consumers and lead to confusion. It is well established that the gTLD can be ignored when comparing a registered trademark and disputed domain name. (See section 1.11.1 of WIPO Overview 3.0).
The Panel notes that the Complainant does not have a registered trademark for 1XBET in China. The ownership of a trademark is generally considered to be a threshold standing issue. The location of the trademark, its date of registration (or first use) and the goods and / or services for which it is registered, are all irrelevant for the purpose of finding rights in a trademark under the first element of the UDRP. These factors may however bear on a panel’s further substantive determination under the second and third elements. (See section 1.1.2 of the WIPO Overview 3.0.)
The first element of paragraph 4(a) of the Policy is therefore satisfied.
Section 2.1 of the WIPO Overview 3.0 provides:
“While the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of ‘proving a negative’, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element.”
The Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name.
The Respondent has not presented any evidence to establish rights or legitimate interests under these heads. It has merely stated that it is preparing to launch its website. None of the circumstances in paragraph 4(c) of the Policy are present in this case.
Considering the absence of any evidence from the Respondent answering the Complainant’s contentions and the fact that the Respondent was granted neither a license nor an authorization to make any use of the Complainant’s trademark, the Panel finds the Respondent has failed to demonstrate any rights or legitimate interests in the disputed domain name.
The second element of paragraph 4(a) of the Policy is therefore satisfied.
The Panel finds that the disputed domain name <xbet.网络> was registered in bad faith and is being used in bad faith.
The fact the disputed domain name resolves to a page with no content related to the Complainant does not preclude a finding that it has been used in bad faith. It is well established that passive use or non-use of a domain name does not prevent a finding of bad faith under the doctrine of passive holding. (WIPO Overview 3.0 section 3.3).
Further, the disputed domain name has been offered for sale for an amount far in excess of out of pocket registration costs. The Panel has no hesitation in finding that the Respondent has registered the disputed domain name for the purposes of reselling for a price higher than the cost of acquisition. This constitutes bad faith under sub-paragraph 4(b)(i) of the Policy.
The third part of paragraph 4(a) of the Policy is therefore satisfied.
For 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 <xbet.网络> (<xbet.xn--io0a7i>) be transferred to the Complainant.
Date: April 30, 2018
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