Moonshine Technology Private Limited v REGL Admin

WIPO Case No. D2023-2197

ARBITRATION

AND

MEDIATION CENTER

ADMINISTRATIVE PANEL DECISION

Moonshine Technology Private Limited v. REGL Admin,
Rhino Entertainment LTD

Case No. D2023-2197

1. The Parties

The Complainant is Moonshine Technology Private Limited, India, represented by DSK Legal, India.

The Respondent is REGL Admin, Rhino Entertainment LTD, Malta, represented by Lzafeer Ahmad B F

Lzafeer Ahmad B F, India.

2. The Domain Name and Registrar

The disputed domain name <bigbaazi.com> (the “Domain Name”) is registered with GoDaddy.com, LLC

(the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 19, 2023.

On May 19, 2023, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On May 19, 2023, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name, which differed from the named Respondent (White Star B.V.) and contact information in the Complaint. The Center sent an email communication to the Complainant on May 23, 2023, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on May 26, 2023.

The Center verified that the Complaint together with 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 and 4, the Center formally notified the Respondent of the the due date for Response was June 19, 2023. The Response was filed with the Center on June 19, 2023.

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The Center appointed Jeremy Speres, Meera Chature Sankhari, and Gareth Dickson as panelists in this matter on August 15, 2023. The Panel finds that it was properly constituted. Each member of 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 part of the Baazi Group of Companies, which has been trading in India in the online
gaming space, covering poker, casual games, fantasy sports, and card games, since 2014 under a family of

BAAZI-incorporating marks, including BAAZI GAMES, POKERBAAZI, BALLEBAAZI, RUMMYBAAZI, and

CARDBAAZI. Hereinafter references to the “Complainant” should be read as encompassing both the named

Complainant and its associated group companies.

The Complainant owns corresponding domain names for the foregoing marks, and operates the associated

platforms from the following websites: “baazigames.com”, “ “

“rummybaazi.com”, and “ The Complainant owns numerous Indian trade mark

registrations for its BAAZI family of marks, including Indian Trade Mark Registration No. 3623471 BAAZI
(word) in class 41 with a registration date of August 30, 2017.

The Respondent is part of a group of companies whose business is the provision of regulated online gaming through its wholly owned subsidiaries. The Respondent owns the trade marks and domain names under which such services are offered, which are licensed to its operating company White Star BV of Curaçao, which holds the requisite gaming licenses and has been providing regulated online gaming services since July 2020.

The Respondent’s group has various online casino game offerings, which are offered from its websites at

“casinodays.com”, “buustikasino.com”, “luckyspins.com” and “bigbaazi.com”, this last one corresponds to the

Domain Name. The Respondent owns corresponding European Union trade mark registrations, including Trade Mark Registration No. 018831489 BIG BAAZI (word) in classes 9, 28, 38, and 41 with a registration date of May 18, 2023.

The Domain Name was registered on January 20, 2022, and has been used by the Respondent since July

2022, for an online casino under the name BIG BAAZI, targeting users on the Indian sub-continent.

5. Parties’ Contentions

A. Complainant

The Complainant contends as follows. As a result of its longstanding and extensive use of BAAZI, the mark has come to be exclusively associated with the Complainant in relation to gaming services and related products in India, and the Complainant enjoys strong common law rights in the well-known mark as a result.

The Domain Name incorporates the Complainant’s well-known and registered mark BAAZI as its essential

and most prominent feature, and is confusingly similar to the Complainant’s mark as such.

The Respondent was well-aware of the Complainant’s well-known BAAZI mark when registering and using the Domain Name given that the Respondent targets users in the Complainant’s market of India in a closely

related field, and users are likely to be deceived into believing that the Complainant has moved into a new

vertical, namely casino gaming. The Respondent’s intention was thus to trade off the goodwill associated

with the Complainant’s mark, meaning that the second and third limbs of the Policy should be decided in the

Complainant's favour.

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B. Respondent

The Respondent contends as follows. This case falls beyond the limited scope of the UDRP given that it

involves complex questions of law concerning the parties’ competing rights, in light of the Respondent’s own

registered trade mark rights over a mark corresponding to the Domain Name, and in light of the Complainant the Complainant.

neglecting to adduce the pre-Complaint correspondence exchanged between the parties in which the

The Complainant cannot claim exclusive rights over the term “baazi” because it has common dictionary

meanings in Hindi: “1. Game, play; a game, contest 2. A game of chance; gambling. 3. Wager, bet, 4. Turn,

play (in a game).” Thus, “baazi” is inherently a descriptive word and is used as such by the Respondent.

The Complainant has always used “baazi” in composite form, together with other words in the form of, e.g.,

BALLEBAAZI, thus the Complainant’s common law rights, if any, do not extend to “baazi” on its own. The

term “baazi” is the subject of numerous other trade mark registrations and trading names used by third

parties in India unconnected to the Complainant, indicating that the term is not exclusively associated with

the Complainant.

The Respondent has rights and legitimate interests in its BIG BAAZI mark given that it commenced using the

mark for a bona fide business prior to being informed of the Complainant’s claims, and by virtue of its

European Union trade mark registration. The Respondent’s offering can be distinguished from the

Complainant’s in that the Respondent primarily offers games of chance under a unified brand umbrella BIG

BAAZI, whereas the Complainant offers different types of games, primarily games of skill, under distinct brands, which are descriptive of the type of game in question, e.g., POKERBAAZI.

The Respondent acted in good faith in registering and using the Domain Name as the BIG BAAZI name was

adopted for its descriptive qualities, with “big” emphasising the large number of games available on the

Respondent’s platform. Neither the Complainant nor the Respondent have ever adopted “baazi” on its own

and thus no confusion is likely.

The Respondent requests a finding that the Complaint was brought in bad faith, as Reverse Domain Name Hijacking, given that the Complainant: a) did not reveal the earlier correspondence between the parties; b) filed a Complaint that is beyond the jurisdiction of the UDRP; c) filed a Complaint knowing full well of the

Respondent’s rights and legitimate interests in the Domain Name; and d) filed a Complaint involving a

dictionary term over which it knew it could not claim exclusivity.

6. Discussion and Findings

A. Identical or Confusingly Similar

The Complainant plainly has registered rights in a mark, BAAZI, that is wholly contained within the Domain domain name will normally be considered confusingly similar to that mark (WIPO Overview of WIPO Panel

Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) at section 1.7). The Complainant

has satisfied the requirements of paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

The Respondent owns a registered European Union trade mark for a mark corresponding to the Domain

Name, and the Respondent has, since before being informed of the Complainant’s claims, used that mark in

relation to an offering hosted at the Domain Name. Prima facie, the Respondent therefore has an arguable
case in respect of rights and/or legitimate interests, under paragraphs 4(c)(i) and (ii) or otherwise.

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However, the existence of a respondent trade mark does not automatically confer rights or legitimate interests on the respondent. For example, panels have generally declined to find respondent rights or legitimate interests in a domain name on the basis of a corresponding trade mark registration where the overall circumstances demonstrate that such trade mark was obtained primarily to circumvent the application

of the UDRP or otherwise prevent the complainant’s exercise of its rights (even if only in a particular

jurisdiction) (WIPO Overview 3.0 at section 2.12.2).

In Madonna Ciccone, p/k/a Madonna v. Dan Parisi and “Madonna.com”, WIPO Case No. D2000-0847, the

panel held as follows:

“However, it would be a mistake to conclude that mere registration of a trademark creates a legitimate

interest under the Policy…To establish cognizable rights, the overall circumstances should demonstrate that

the registration was obtained in good faith for the purpose of making bona fide use of the mark in the jurisdiction where the mark is registered, and not obtained merely to circumvent the application of the

Policy.”

The Respondent registered its trade mark in the European Union, however, its platform would appear to exclusively target users in India. No evidence has been produced showing that the Respondent has sought registration of its mark in India, and no explanation has been provided for this discrepancy either.

In light of this, and considering what is discussed below in relation to bad faith, although the case is finely

balanced in this respect, in the Panel’s view it is more likely than not that the Respondent’s intention in registering and using its trade mark and the Domain Name was to take advantage of the Complainant’s

reputation in the BAAZI mark.

The Respondent’s registration and usage of its trade mark and the Domain Name in these circumstances

bona fide

cannot represent a offering of goods or services under paragraph 4(c)(i) of the Policy and cannot mere registration of trade marks and domain names could simultaneously confer rights or legitimate interests. The Complainant has satisfied paragraph 4(a)(ii) of the Policy.

confer rights or legitimate interests (Sistema de Ensino Poliedro Vestibulares Ltda., Editora Poliedro Ltda. v.

C. Registered and Used in Bad Faith

The Complainant presented evidence of longstanding, extensive use of a family of BAAZI-incorporating

marks in relation to the online gaming space in India since 2014. The Complainant’s evidence included

significant sales and marketing expenditure figures, national media coverage, public partnerships with well-
known Indian celebrities, and social media engagement, amongst others.

The Complainant also adduced a judgment of the High Court of Delhi, dated January 31, 2022, in which the High Court ruled, at the interim relief stage, on a trade mark infringement and passing off action instituted by the Complainant against defendants based in India offering an online gaming platform under a name

incorporating “BAAZI”. In ruling against the defendants, the High Court held as follows (comments added by

the Panel in italics and square brackets):

“These figures would show that the plaintiff’s business is a thriving business and they have established their

popularity as an online gaming platform. It is not evident that any other competitor was using ‘Baazi’,
throughout this time period [since 2015] and therefore, prima facie it does appear that ‘Baazi’ is a brand

indicating the name of the provider of the services, namely, the plaintiff… surely ‘Baazi’ is not a word apt to

describe gaming or wagering services online or as a mobile App. Thus it is a clever and creative use of a

common word by the plaintiff for its services. There is nothing on record to indicate that the word ‘Baazi’ is
commonly used in the industry.”

Albeit a decision at an interim stage, the case was apparently decided with the benefit of evidence being led by both sides and the benefit of argument from counsel. The decision has not been seriously gainsaid by

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the Respondent in these proceedings.

Based on the evidence before it as well as its own limited Internet searches, the Panel’s view is that,

although there is an element of descriptiveness about the Complainant’s BAAZI mark in the context of online

gaming, the mark has not been widely adopted in the industry in its descriptive sense, and is more
associated with the Complainant, in this specific industry in the Indian market, than with its descriptive

meaning. This was more likely than not the position when the Respondent registered the Domain Name in

January 2022, based on the evidence in the record as well as the Panel’s own Internet searches specifically

limited to websites published in India prior to the registration date of the Domain Name. The BAAZI mark
also has multiple meanings, not all of which are descriptive, or purely descriptive, in this context. BAAZI is
therefore more akin to a suggestive rather than a purely descriptive mark, which is reflected in the High Court
judgment quoted above. Accordingly, the Panel is satisfied that the Complainant enjoys a reputation and
common law rights in the BAAZI mark, which was well-known in its industry in India prior to the registration of
the Domain Name. It is noteworthy that the High Court judgment, finding similarly, was delivered a mere 11

days after registration of the Domain Name.

The Respondent’s adoption of BAAZI in the same industry as the Complainant (or one very closely aligned

to it but nevertheless competitive with it to some degree), targeting the very same territory where the

Complainant’s BAAZI mark was and is well-known, is an indicator that the Respondent intended to take

advantage of the Complainant’s reputation. UDRP panels have consistently found that registration of a

domain name that is confusingly similar to a well-known trade mark by an unaffiliated entity can by itself
create a presumption of bad faith (WIPO Overview 3.0 at section 3.1.4).

The Respondent did not deny knowing of the Complainant before registering and using the Domain Name, nor can it credibly do so in the circumstances. Of course, knowledge is not the same as bad faith targeting, but it is a prerequisite which is clearly fulfilled in this case.

The Respondent defends its registration and use of the Domain Name on the basis that the Respondent

adopted and has used “baazi” descriptively. There are two problems with this argument. Firstly, the

Respondent does not itself use “baazi” descriptively. Its only use of the term appears to be as part of its

brand name, which it sought to register as a trade mark. Instead of using “baazi” the Respondent has itself

used terms such as “bet”, “betting”, “wager” and “wagering” on its website. Secondly, as confirmed by the

foregoing High Court decision and the Panel’s own searches, “baazi” is not widely used in the industry in

India in a descriptive sense, with terms such as “bet” and “wager” being preferred. Internet searches for

“baazi” coupled with terms descriptive of the online gaming space, limited to Indian websites, reveal results

largely associated with the Complainant, which bears out when such searches are limited to Indian websites
published prior to registration of the Domain Name.

The Respondent, in pre-Complaint correspondence, offered to include a disclaimer on its website dissociating its offering from that of the Complainant. Where the overall circumstances of a case point to a

respondent’s bad faith, as they do in this case, the mere existence of a disclaimer cannot cure such bad

faith. In such cases, panels may consider the respondent’s use of a disclaimer as an admission by the

respondent that users may be confused (WIPO Overview 3.0 at section 3.7). On balance, considering the

cumulative effect of the factors addressed above, the Panel finds that the Respondent’s offer of a disclaimer

is a tacit admission of the Complainant’s prior goodwill and the likelihood of confusion.

On balance, the Panel’s view is that it is more likely than not that the Respondent sought to register and use

the Domain Name in order to take advantage of the Complainant’s reputation. The Complainant has

satisfied paragraph 4(a)(iii) of the Policy.

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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 Domain Name, <bigbaazi.com> be transferred to the Complainant.

/Jeremy Speres/

Jeremy Speres

Presiding Panelist

/Meera Chature Sankhari/

Meera Chature Sankhari

Panelist

/Gareth Dickson/

Gareth Dickson

Panelist
Date: August 29, 2023