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Administrative panel decision take-Two Interactive Software, Inc V. Mason Evans


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ARBITRATION
AND
MEDIATION CENTER




ADMINISTRATIVE PANEL DECISION

Take-Two Interactive Software, Inc. v. Mason Evans

Case No. D2013-0787



1. The Parties

The Complainant is Take-Two Interactive Software, Inc. of New York, New York, United States of America, represented by Mitchell, Silberberg & Knupp LLP, United States of America.


The Respondent is Mason Evans of Hornchurch, Essex, United Kingdom of Great Britain and Northern Ireland.


2. The Domain Name and Registrar

The disputed domain name is registered with Crazy Domains FZ-LLC (the “Registrar”).




3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 2, 2013. On May 3, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 7, 2013, 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. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amended Complaint on May 13, 2013.


The Center verified that the amended 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 May 14, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was June 3, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 10, 2013.
The Center appointed Fleur Hinton as the sole panelist in this matter on July 9, 2013. 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 is in the business of developing, marketing and publishing interactive entertainment. Among other products, it develops and publishes video games designed for multiple platforms, including personal computers, mobile phones, “iOS” devices such as iPhone, iPad, handheld gaming units, such as Sony Playstation Portable and Nintendo DS and gaming console systems such as Microsoft Xbox 360, Sony Playstation, and Nintendo Wii, delivered through physical retail, digital download, online platforms and cloud streaming services. The Complainant describes itself as one of the world’s most famous and successful video game developers and publishers and has produced and continues to produce video games which are popular with the public.


One of the video game series produced by the Complainant through its wholly-owned subsidiary, Rockstar Games, Inc., is “Grand Theft Auto” or “GTA”. The first “GTA” video game was released in 1998 and, since that time the series has included “GTA London”, “GTA 2”, “Grand Theft Auto III”, “Grand Theft Auto: San Andreas”, “Grand Theft Auto: Vice City”, “Grand Theft Auto IV”, “Grand Theft Auto: Chinatown Wars”, “Grand Theft Auto: The Lost And The Damned”, and “Grand Theft Auto: The Ballad Of Gay Tony”. The “Grand Theft Auto” series provides the player with complex narratives which take place in large virtual worlds including all aspects of life in urban environments: politics, entertainment, race relations, and other relevant subjects. The Complainant describes them as interactive movies, in which the player is in the role of the main character and can influence the outcomes of the story. Each game has its own storyline and characters. The Complainant says that the main narrative of the most recent game – “Grand Theft Auto IV” – takes about 30 hours to play through. In addition to the main narrative, there are more than 70 hours of secondary story and material that the user may play through.
Both of the trademarks GRAND THEFT AUTO and GTA are registered by the Complainant with the United States Patent and Trademark Office (“USPTO”). The filing for GRAND THEFT AUTO dates from September 16, 1996 and the first use date for the GTA registration is September 30, 1999. The Complainant’s wholly owned subsidiary Rockstar Games owns a portfolio of domain names including , , , , , , , , , , , and .
The Complainant states that in this industry a product is considered to be very successful if it sells one million units. It claims that 112 million copies of the GTA series have been sold to date. In addition, the evidence shows that products bearing the trade mark GTA and/or GRAND THEFT AUTO are well-known generally in their market and to their consumers. They get large numbers of hits on Google searches and are frequently reviewed by experts in this field.



5. Parties’ Contentions

A. Complainant

The disputed domain name consists of the Complainant’s well-known trade mark GTA which is used by the Complainant and others with the numeral five expressed either as the Roman numeral “V” and by others often as “5” to express the fifth series or version of the GTA game. The Complainant states also that the use of the words “beta” and “keys” is descriptive and indicates that a pre-release limited access version of the game (or “keys” to unlock the game) is being offered at that website. For that reason, the Complainant argues, the “beta-keys” part of the disputed domain name is descriptive and should not be taken into account as a distinguishing factor when comparing the Complainant’s trade mark with the disputed domain name.


The Complainant submits that the fact that GTA V is not yet registered as a trade mark should not affect the issue as “V” merely indicates the next version after the 2008 version which was GTA IV. It submits further that the GTA trade mark in this industry is so well known that it has acquired a secondary meaning. For these reasons the Complainant argues that the disputed domain name is confusingly similar to a trade mark which it owns.
The Complainant also argues that the Respondent has no rights or legitimate interests in the disputed domain name as it has not been authorized by the Complainant to use it. Further, it has not made any use of the disputed domain name in such a way as to suggest that its use is either noncommercial or a fair use. Although the disputed domain name does not presently resolve to a website, there is no bona fide offering being made by the Respondent. In this case, the Complainant has made a prima facie case that there is no indication that the Respondent has no rights or legitimate interests in the disputed domain name and it is then up to the Respondent to refute that. It has made no attempt to do so. The only use which the Respondent has made of the disputed domain name is to encourage web browsers to visit its site in the mistaken belief that they are going to be offered a “Beta version” of the Complainant’s goods. Therefore, the Complainant says, the Respondent chose the disputed domain name with the intention of “piggybacking” on the Complainant’s reputation in its trade mark.
The Complainant submits that the disputed domain name was registered and is being used in bad faith. It says that the Respondent registered the disputed domain name:
- to take advantage of the Complainant’s goodwill in a trade mark which is confusingly similar to the Complainant’s by attempting to attract consumers to its website and;
- to prevent the Complainant from being able to register the disputed domain name itself, thereby disrupting the Complainant’s business activities.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.




6. Discussion and Findings




The Policy requires that the Panel make its finding on the basis of the following:



(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and

(iii) the disputed domain name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

The disputed domain name contains the Complainant’s trade mark GTA together with the descriptive indicators “5”, the number of the most recent series in the Complainant’s game and “beta keys” which has meaning in this context as the key to unlock the most recent version of a game not yet released publicly. The Panel accepts that “5” and “beta keys” have a descriptive significance when used in this context and in conjunction with the trade mark GTA. The Complainant’s trade mark GTA is registered and the evidence shows that it is a well-known trade mark within the industry of computer games. For these reasons the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trade mark GTA.



B. Rights or Legitimate Interests

The Respondent has not replied to the Complainant’s contentions and has not lodged a Response to the Complaint. The Respondent has not, therefore provided any information as to any rights or legitimate interests in the disputed domain name. Therefore, the Complainant need only establish a prima facie case that the Respondent has neither rights nor legitimate interests in the disputed domain name. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions (“WIPO Overview 2.0”), paragraph 2.1.


In The Vanguard Group, Inc. v. Lorna Kang, WIPO Case No. D2002-1064 the panel found that:
“To satisfy the requirements of Policy paragraph 4(c)(i), the Respondent’s use of the disputed domain name must be in connection with a “bona fide” offering of goods or services. In some circumstances, a website advertising and selling financial magazines or financial products and services may constitute a bona fide offering of goods or services. In the circumstances of this case, however, the Respondent’s use of the disputed domain name is not “bona fide” within the meaning of Policy paragraph 4(c)(i) because: (a) the disputed domain name is confusingly similar to the Complainant’s well known trademark and its domain name; (b) there is no apparent connection or relationship between the disputed domain name and the Respondent or its websites or their content; and (c) there is no other apparent legitimate justification for the Respondent’s registration and use of the disputed domain name for its websites. In addition, the Panel draws an adverse inference from the Respondent’s failure to provide any explanation or rationale for its use of the disputed domain name for its websites.”
The Complainant has stated that it has not authorized the Respondent to use the disputed domain name. Once the Complainant has made out a prima facie case in this regard, the Respondent has the onus of proving that it does have rights or legitimate interests. The Respondent has not lodged any response to this Complaint and therefore, has not shown that it has any rights or legitimate interests.
In view of the confusing similarity of the disputed domain name to the Complainant’s trade mark and the fact that the Respondent has chosen not to participate in these proceedings, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name.

C. Registered and Used in Bad Faith

The onus is on the Complainant to establish that the disputed domain name was registered and is being used in bad faith. The Complainant has established that the disputed domain name is confusingly similar to the Complainant’s trade mark, that the Respondent has no rights or legitimate interests in the disputed domain name and that it has declined to take part in these proceedings.


The fact that the Respondent’s registration of the disputed domain name prevents the Complainant from using it will not suffice for a finding of bad faith registration and use unless there is a pattern of such conduct (paragraph 4(b)(ii) of the Policy). The Complainant has also argued that its registration disrupts the Complainant’s business but there is no real evidence in the case record of that since the Complainant was already conducting its business through other websites and has been doing so for some time.

At the time of this decision it appears that the Respondent’s use of the disputed domain name does not resolve to a website and, indeed the entering of that domain name into the browser does not show any use. Without more, that is not sufficient to allow a finding of registration in bad faith. However, in Intel Corporation v. The Pentium Group WIPO Case No. D2009-0273, the panel referred to the cases of Veuve Clicquot Ponsardin, Maison Fondée en 1772 v. The Polygenix Group Co., WIPO Case No. D2000-0163; General Electric Company v. CPIC NET and Hussain Syed, WIPO Case No. D2001-0087 and; Microsoft Corporation v. Montrose Corporation, WIPO Case No. D2000-1568 and accepted that the registering of a domain name incorporating a well-known trade mark with “no plausible explanation for doing so may be, in and of itself, an indication of bad faith”. In addition to that, the Panel notes that in this case the Respondent has not provided evidence of any actual or contemplated good faith use by it of the disputed domain name.


In view of all the specific circumstances of this case the Panel finds that the Respondent’s use and registration of the disputed domain name was in bad faith.

7. Decision



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 be transferred to the Complainant.

Fleur Hinton

Sole Panelist



Date: August 8, 2013



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