Decision for dispute CAC-UDRP-108860

The Panel is not aware of any other legal proceedings which are pending or decided and which relate to the disputed domain name.

The Complainant bases its Complaint, among others, on the following trademarks:

• Australian national trademark “WS WIN SPIRIT”, no. 2473926, registered on 13 August 2024, for services in class 41;
• Estonian national trademark “WS WIN SPIRIT”, no. 63557, registered on 7 October 2024, for services in class 41.

The Complainant contends that the requirements of the Policy have been met and that the disputed domain name should be transferred to it.

The Complainant's contentions are the following:

(i) the disputed domain name <auwinspiritcasino.com> is confusingly similar to the Complainant's trademark WS WIN SPIRIT, as it incorporates in their entirety the distinctive and dominant word element WIN SPIRIT from the Complainant's registered mark WS WIN SPIRIT;

(ii) that the Respondent lack rights or legitimate interests in the disputed domain name for a number of reasons, among which that (a) the Respondent has never been authorised, licensed or permitted by the Complainant to use the WS WIN SPIRIT mark or to register any domain name incorporating it, (b) there is no relationship of any kind between the Complainant and the Respondent, (c) the Respondent is not commonly known by the name WinSpirit, (d) the use made of the disputed domain name is not a bona fide offering of goods or services, and is not a legitimate non-commercial or fair use. In the Complainant's view, a website that presents itself as the trade mark owner's official site is impersonation, as such presents itself as the "Official Site Australia" of the Complainant's brand. Impersonation and passing off constitute illegal activity, and such use can never confer rights or legitimate interests. Moreover, the disputed website routes visitors to four competing gambling operators for commission. In the Complainant’s view, the true purpose of the Respondent’s website corresponding to the disputed domain name is affiliate monetisation; and that

(iii) the disputed domain name was registered and is being used in bad faith for a number of reasons, among which that (a) the disputed domain name was registered on 20 December 2025, after the Complainant's Australian trademark registration WS WIN SPIRIT as of 13 August 2024 and its Estonian trademark registration WS WIN SPIRIT as of 7 October 2024, and more than thirteen years after the Complainant began continuous operation of its website www.winspirit.com. In the Complainant’s view, the Respondent did not merely adopt the words WIN SPIRIT which are the dominant part of its WS WIN SPIRIT, combining them with the geographical indicator “au” and with the descriptive term “casino”, which correspond to the Complainant's services, but it also reproduced the Complainant's logo and visual design, and titled the resulting page the Complainant's "Official Site Australia". Knowledge of the mark and deliberate targeting of it are the only available explanation in the Complainant’s view, and where a domain name is used to host an impersonation of the Complainant, bad faith is presumed, (b) the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the website corresponding to the disputed domain name by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation or endorsement of that website, as the disputed domain name reproduced the Complainant’s WS WIN SPIRIT mark with a geographical and a descriptive addition, and the website expressly claimed to be the Complainant's official Australian site, and among others, had four captured chains, each routed through a commercial affiliate network and each carrying commission-tracking parameters, three of them terminating on a competitor's registration page, (c) in the Complainant’s view, the fact that the Respondent states on the website corresponding to the disputed domain name that it does not operate a casino, that it retains full editorial independence, and that commercial considerations never influence its content, while selling its visitors to four gambling operators for commission, is not acting in good faith.

The Respondent has filed an administratively compliant Response, contending, among others, that: (i) the website corresponding to the disputed domain name was created as an independent informational and SEO-oriented resource concerning online casino services for the Australian market. It was not created to operate a casino, collect customer deposits, obtain user credentials, or impersonate the Complainant for the purpose of fraud, (ii) the website associated with the disputed domain name was developed as an informational and promotional resource concerning online gambling services, (iii) the Respondent does not operate the WINSPIRIT casino or any independent gambling platform through the disputed domain name, mentioning several aspects referring to the operation of the website. In the Respondent’s view, links from the website to external gambling operators should not be confused with operation of those third-party services by the Respondent and that the existence of commercial or affiliate links does not, by itself, demonstrate that the disputed domain name was registered for fraudulent purposes, (iv) the Respondent specifically rejects any suggestion that the disputed domain name was operated for phishing or credential harvesting. The website does not contain a mechanism designed to capture WINSPIRIT usernames or passwords and does not collect users' financial credentials under the guise of being the Complainant. The Respondent further alleges that where a user follows an external link, any subsequent registration process takes place on the relevant third-party website rather than through the Respondent's website. In the Respondent’s view, the mere existence of redirects or affiliate tracking parameters should not be treated as evidence that the Respondent itself collects credentials or conducts phishing, (v) the Respondent acknowledged that certain wording or visual elements previously appearing on the website corresponding to the disputed domain name may have been capable of creating ambiguity concerning the relationship between the informational website and the WINSPIRIT brand. However, in the Respondent’s view, such elements do not establish an intention to defraud users or impersonate the Complainant for the purpose of obtaining personal or financial information. The Respondent further alleges that the website's purpose was informational and promotional rather than to substitute itself for the Complainant's actual gambling platform. The Respondent further mentioned that such is also prepared to remove or replace visual elements or wording that could reasonably create an incorrect impression of official affiliation, (vi) the Respondent made mentioned that the Complainant relied upon trademark rights in particular jurisdictions and that such are not valid in the jurisdiction identified for the Respondent, (vii) the Respondent recognized in the filed response that the disputed domain name contains the term "winspirit" together with the terms "au" and "casino", but the similarity between a domain name and a trademark does not, standing alone, establish all three elements required by the UDRP, (viii) the Respondent alleged that affiliate tracking parameters are routinely used to attribute referrals and do not themselves demonstrate phishing, credential theft, or other fraudulent activity, (ix) the Respondent further alleged that the use of a registrar-provided privacy service is a standard domain-registration practice and should not independently be treated as evidence of bad faith, (x) the Respondent mentioned though the filed response that such is willing to modify the website to eliminate any reasonable possibility of confusion concerning affiliation with the Complainant. Such measures as per the remarks of the Respondent may include removing potentially confusing branding or visual elements, removing wording suggesting official status, and displaying a clear statement that the website is an independent informational resource and is not operated or endorsed by the Complainant, (xi) the Respondent denied through the filed response that such is operating a phishing service, is harvesting WINSPIRIT credentials, is collecting financial information while impersonating the Complainant, is operating a fraudulent gambling platform through the disputed domain name, or that such registered the disputed domain name for the purpose of selling it to the Complainant or preventing the Complainant from registering its trademark as a domain name.

The Respondent therefore requested for the Complaint to be denied and for such to retain the disputed domain name.

The Complainant has, to the satisfaction of the Panel, shown the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights (within the meaning of paragraph 4(a)(i) of the Policy).

The Complainant has, to the satisfaction of the Panel, shown the Respondent to have no rights or legitimate interests in respect of the disputed domain name (within the meaning of paragraph 4(a)(ii) of the Policy).

The Complainant has, to the satisfaction of the Panel, shown the disputed domain name has been registered and is being used in bad faith (within the meaning of paragraph 4(a)(iii) of the Policy).

The Panel is satisfied that all procedural requirements under UDRP were met and there is no other reason why it would be inappropriate to provide a decision.

1. Identity/Confusing Similarity

The Panel agrees that the disputed domain name <auwinspiritcasino.com> is confusingly similar to the Complainant's trademark WS WIN SPIRIT, as the dominant word elements WIN SPIRIT from the Complainant’s trademark WS WIN SPIRIT are included in their entirety in the disputed domain name, with the addition in front of them of the term “au”, which corresponds to the country code of Australia, and after them, of the term “casino”, which corresponds to the services provided by the Complainant under its WS WIN SPIRIT trademark, which is not sufficient to prevent the finding that the domain name is confusingly similar to the Complainant’s trademark.

The extension “.com” is not to be taken into consideration when examining the similarity between the Complainant’s trademark and the disputed domain name (WIPO Case No. D2005-0016, Accor v. Noldc Inc.). The mere adjunction of a generic Top-Level Domain (“gTLD”) such as “.com” is irrelevant as it is well established that the generic Top Level Domain is insufficient to avoid a finding of confusing similarity (WIPO Case No. 2013-0820, L’Oréal v Tina Smith, WIPO Case No. D2008-0820 Titoni AG v Runxin Wang and WIPO Case No. D2009-0877, Alstom v. Itete Peru S.A.).

Therefore, the Panel is satisfied that the first condition under the Policy is met.

2. Lack of Respondent's rights or legitimate interests

The Complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, the burden of proof shifts to the respondent to come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the disputed domain name. If the respondent fails to come forward with such appropriate allegations or evidence, a complainant is generally deemed to have satisfied paragraph 4(a)(ii) of the Policy.

Based on the available evidence, the Respondent does not appear to be known by the disputed domain name as such is not identified in the WHOIS database as the disputed domain name or by the term “auwinspiritcasino”. The Complainant has never authorised, permitted, or otherwise granted consent to the Respondent to make use of its WS WIN SPIRIT trademark, nor of a confusingly similar trademark in the disputed domain name.

Moreover, based on the evidence submitted by the Complainant and not refuted by the Respondent, the Complainant has never had any business, commercial, or contractual relationship with the Respondent.

Furthermore, the disputed domain name which incorporates the dominant word elements WIN SPIRIT from the Complainant’s trademark WS WIN SPIRIT, with the addition in front of them of the term “au”, which corresponds to the country code of Australia, and after them, of the term “casino”, which corresponds to the services provided by the Complainant under its WS WIN SPIRIT trademark, resolved, as per the evidence filed by the Complainant, to a website that had the mention "WinSpirit Casino AU [star emoji] Win spirit Official Site Australia" and which reproduced the Complainant's WS WIN SPIRIT logo, the WINSPIRIT name and the Complainant's visual design, website which routed visitors to four competing gambling operators, and although the Respondent mentioned in his filed response that the website was created as an independent informational and SEO-oriented resource concerning online casino services for the Australian market, such did not disclose in a clear and prominent manner the lack of relationship with the Complainant and its business, creating thus the impression of being affiliated with, authorised by, or endorsed by the Complainant in relation to its WS WIN SPIRIT trademark.

The above does not amount to a bona fide offering of goods or services, or to a legitimate noncommercial or fair use of the disputed domain name.

The aspects claimed in the response filed by the Respondent in the file do support a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name.

Therefore, the Panel is satisfied that also the second requirement under the Policy is met.

3. Bad Faith

Based on the available evidence, the Complainant's WS WIN SPIRIT mark predates the registration date of the disputed domain name. Thus, the Respondent has chosen to register the disputed domain name incorporating the dominant word elements WIN SPIRIT from the Complainant’s trademark WS WIN SPIRIT, with the addition in front of them of the term “au”, which corresponds to the country code of Australia, and after them, of the term “casino”, which corresponds to the services provided by the Complainant under its WS WIN SPIRIT trademark, in order to create a confusion with such trademark. Therefore, the Panel concludes that at the time of registration of the disputed domain name, the Respondent was well aware of the Complainant’s WS WIN SPIRIT trademark and has intentionally registered the disputed domain name in order to create confusion with such trademark.

In the present case, the following factors should be considered:

(i) the Complainant's WS WIN SPIRIT mark predates the registration date of the disputed domain name;

(ii) the Respondent failed to submit any evidence of actual or contemplated good faith use of the disputed domain name through the filed response;

(iii) the Respondent registered the disputed domain name incorporating the dominant word elements WIN SPIRIT from the Complainant’s trademark WS WIN SPIRIT, with the addition in front of them of the term “au”, which corresponds to the country code of Australia, and after them, of the term “casino”, which corresponds to the services provided by the Complainant under its WS WIN SPIRIT trademark;

(iv) the Respondent was not authorised to use a domain name identical / similar to the Complainant's WS WIN SPIRIT trademark;

(v) the disputed domain name resolved to a website that had the mention "WinSpirit Casino AU [star emoji] Win spirit Official Site Australia", and which reproduced the Complainant's WS WIN SPIRIT logo, the WINSPIRIT name and the Complainant's visual design, website which routed visitors to four competing gambling operators, and although the Respondent mentioned in his filed response that the website was created as an independent informational and SEO-oriented resource concerning online casino services for the Australian market, such did not disclose in a clear and prominent manner the lack of relationship with the Complainant and its business.

In light of the foregoing, the Panel concludes that the Respondent has registered and has been using the disputed domain name in bad faith. Thus, also the third and last condition under the Policy is satisfied.