Overdrive Marketing, Inc. v. biriz sevim
Claim Number: FA2201001981659
Complainant is Overdrive Marketing, Inc. (“Complainant”), represented by Dwayne K. Goetzel, Texas, USA. Respondent is biriz sevim (“Respondent”), Turkey.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <oddstraderbetstation.com>, registered with Dynadot, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 24, 2022; the Forum received payment on January 24, 2022.
On January 25, 2022, Dynadot, LLC confirmed by e-mail to the Forum that the <oddstraderbetstation.com> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, 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 January 25, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 14, 2022 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@oddstraderbetstation.com. Also on January 25, 2022, 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 February 18, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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
Complainant states that it uses its ODDSTRADER mark to offer sports gambling services. Complainant asserts rights in the ODDSTRADER mark based upon its registration in the United States on February 16, 2021. Complainant has sought registration of the ODDSTRADER BETSTATION mark as well.
Complainant alleges that the disputed domain name is confusingly similar to its ODDSTRADER mark because it incorporates the mark in its entirety, merely adding the generic/descriptive term “bet station” and the generic top-level domain (“gTLD”) “.com”.
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not licensed or authorized to use Complainant’s ODDSTRADER mark and is not commonly known by the disputed domain name. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent offers the disputed domain for sale for a price above Respondent’s out-of-pocket costs.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent offers the disputed domain name for sale for a price in excess of out-of-pocket costs. Respondent registered the disputed domain name with knowledge of Complainant’s ODDSTRADER mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns rights in the mark ODDSTRADER and uses it to provide gambling services.
Complainant’s rights in its mark date back to at least February 2021.
The disputed domain name was registered in December 2021.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name is offered for sale at a price in excess of out-of-pocket costs.
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”).
The disputed domain name incorporates Complainant’s ODDSTRADER mark in its entirety, merely adding the generic/descriptive term “bet station” and the generic top-level domain (“gTLD”) “.com”. The addition of generic or descriptive terms and gTLDs to a mark does not distinguish the disputed domain name from the mark incorporated therein per Policy ¶ 4(a)(i). See Vanguard Group Inc. v. Proven Fin. Solutions, FA 572937 (Forum Nov. 18, 2005) (holding that the addition of both the word “advisors” and the gTLD “.com” did not sufficiently alter the disputed domain name to negate a finding of confusing similarity under Policy ¶ 4(a)(i)); see also Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognizable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”). Thus the Panel finds that the <oddstraderbetstation.com> domain name is confusingly similar to Complainant’s ODDSTRADER mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its ODDSTRADER mark. Respondent is not commonly known by the disputed domain name: where a response is lacking, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). Here, the WHOIS information for the disputed domain name lists the registrant as “biriz sevim.” Therefore the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Respondent offers to sell the disputed domain name for sale at a price exceeding its out-of-pocket expenses. An offer to sell a disputed domain name for a price in excess of out-of-pocket costs is not a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii) and can lead to a finding that a respondent lacks rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). See Altria Group, Inc. v. Stacey Scott / Baldwin Inc., FA1410001584163 (Forum Nov. 12, 2014) (finding that the respondent’s only use of the resolving website was to advertise the sale of the associated domain name indicated that the respondent lacked rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii)); see also University of Rochester v. Park HyungJin, FA1410001587458 (Forum Dec. 9, 2014) (“The Panel finds Respondent’s willingness to sell this <perifacts.com> domain name in excess of out-of-pocket registration costs weighs against Respondent’s case for rights or legitimate interests in the domain name.”). Therefore the Panel finds that Respondent fails to used the disputed domain name to make a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent offers the disputed domain name for sale for a price in excess of out-of-pocket costs. A general offer to sell a domain name can be evidence the respondent intended to make such an offer at the time it registered the name, supporting a finding of bad faith per Policy ¶ 4(b)(i). See Airbnb, Inc. v. Super Privacy Service LTD c/o Dynadot, FA 1821386 (Forum Jan. 10, 2019) (“Complainant argues that Respondent registered and uses the <airbnbb.com> domain name in bad faith by offering it for sale. The Panel agrees and finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(i).”); see also Airbnb, Inc. v. 张昕 / 何青玉, FA 1786279 (Forum June 18, 2018) (“Complainant provides a screenshot of the disputed domain name’s resolving webpage, where Respondent offers to sell the domain name for €9,999 [. . .] The Panel therefore finds that Respondent registered and is using the <airbnb.pro> domain name in bad faith per Policy ¶ 4(b)(i).”); see also Staples, Inc. v. lin yanxiao, FA1505001617686 (Forum June 4, 2015) (“Respondent’s offering to sell the disputed domain name to a third party (in this case, the general public) supports a finding of bad faith registration and use.”); see also Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Forum Sept. 30, 2003) (“Respondent's general offer of the disputed domain name registration for sale establishes that the domain name was registered in bad faith under Policy ¶ 4(b)(i).”). Thus the Panel finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(i).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <oddstraderbetstation.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: February 18, 2022
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page