PragmaticPlay Limited v. Robert Chris
Claim Number: FA2102001932464
Complainant is PragmaticPlay Limited (“Complainant”), represented by Daniel Warner, Arizona, USA. Respondent is Robert Chris (“Respondent”), Wisconsin, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <pragmatlcplay.com>, registered with NameSilo, LLC.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Ho Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 17, 2021; the Forum received payment on February 18, 2021.
On February 17, 2021, NameSilo, LLC confirmed by e-mail to the Forum that the <pragmatlcplay.com> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On February 19, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 11, 2021 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@pragmatlcplay.com. Also on February 19, 2021, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On March 15, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Ho Hyun Nahm, Esq. as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
i) Complainant is a provider of mobile and desktop casino games for the online gaming industry. Complainant has rights in the PRAGMATIC PLAY mark based upon registration with the European Union Intellectual Property Office (“EUIPO”) (e.g., Reg. No. 17,887,401, registered Sept. 1, 2018). The disputed domain name is confusingly similar to Complainant’s PRAGMATIC PLAY mark since it incorporates the mark, merely replacing the letter “i” with an “l.”
ii) Respondent does not have rights or legitimate interests in the disputed domain name because Respondent is not commonly known by the disputed domain name. Additionally, Respondent fails to use the disputed domain name in connection to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain to impersonate Complainant to solicit payments.
iii) Respondent registered and uses the disputed domain name in bad faith. Respondent passes off as Complainant through email to solicit payments from Complainant’s customers.
B. Respondent
Respondent did not submit a response to this proceeding.
1. The disputed domain name was registered on January 24, 2021.
2. Complainant has established rights in the PRAGMATIC PLAY mark based upon registration with the European Union Intellectual Property Office (“EUIPO”) (e.g., Reg. No. 17,887,401, registered on September 1, 2018).
3. Respondent passes off as Complainant through email to solicit payments from Complainant’s customers.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Complainant asserts rights in the PRAGMATIC PLAY mark based upon registration with the EUIPO. Registration of a mark with a governmental trademark agency such as the EUIPO generally establishes rights in the mark per Policy ¶ 4(a)(i). See Sanlam Life Insurance Limited v. Syed Hussain / Domain Management MIC, FA 1787219 (Forum June 15, 2018) (“Registration of a mark with the EUIPO, a government agency, sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i).”). Complainant provides evidence of registration with the EUIPO (e.g., Reg. No. 17,887,401, registered Sept. 1, 2018). Therefore, the Panel finds that Complainant has rights in the PRAGMATIC PLAY mark under Policy ¶ 4(a)(i).
Complainant argues that the disputed domain name is confusingly similar to Complainant’s PRAGMATIC PLAY mark since it incorporates the mark, merely replacing the letter “i” with an “l.” The Panel notes that Respondent appends the “.com” gTLD to the mark. Misspelling a mark and adding a gTLD is generally insufficient to negate confusing similarity between a domain name and the mark. See Western Alliance Bancorporation v. James Brandon, FA 1783001 (Forum June 5, 2018) (“Respondent’s <westernalliancebcorporation.info> domain name is confusingly similar to Complainant’s WESTERN ALLIANCE BANCORPORATION mark because it merely appends the gTLD ‘.info’ to a misspelled version of Complainant’s mark.”). Thus, the Panel finds that the disputed domain name is identical and/or confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant contends that Respondent does not have rights or legitimate interests in the disputed domain name because Respondent is not commonly known by the disputed domain name. Where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). The WHOIS information of record lists the registrant as “Robert Chris,” and no other information of record suggests Respondent is commonly known by the domain name. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Complainant also argues that Respondent fails to use the disputed domain name in connection to a bona fide offering of goods or services or a legitimate noncommercial or fair use and instead uses the disputed domain to impersonate Complainant and solicit payments. Use of a disputed domain name to pass off as a complainant for one’s own benefit is not considered to be a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Emerson Electric Co. v. Adilcon Rocha, FA 1735949 (Forum July 11, 2017) (finding that respondent’s attempt to pass off as complainant through emails does not constitute a bona fide offering of goods or services and, as such, respondent lacked rights or legitimate interests in the disputed domain name). Complainant claims that Respondent uses the disputed domain name to illegally convince consumers that Respondent is Complainant and request money from these confused consumers. Complainant provides a screenshot of an email relevant to this fraudulent use of the domain name. Thus, the Panel finds that this use does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii).
The Panel finds that Complainant has made out a prima facie case that arises from the considerations above. All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant argues that Respondent registered and uses the disputed domain name in bad faith because Respondent passes off as Complainant through email to solicit payments from Complainant’s customers. Use of a disputed domain name to impersonate a complainant in furtherance of a fraudulent scheme may constitute bad faith attraction for commercial gain under Policy ¶ 4(b)(iv). See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the <abbuie.com> domain name to impersonate Complainant’s CEO. Such use is undeniably disruptive to Complainant’s business and demonstrates bad faith pursuant to Policy ¶ 4(b)(iii), and/or Policy ¶ 4(b)(iv)”). Complainant claims that Respondent uses the disputed domain name to illegally convince consumers that Respondent is Complainant and request money from these confused consumers. Complainant provides a screenshot of an email relevant to this fraudulent use of the domain name. Therefore, the Panel agrees with Complainant and finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <pragmatlcplay.com> domain name be TRANSFERRED from Respondent to Complainant.
Ho Hyun Nahm, Esq., Panelist
Dated: March 23, 2021
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