Oversee Domain Management, LLC, just lost a UDRP on the domain name OnlineBacarrat.com to Baccarat SA of Baccarat, France
The domain name OnlineBacarrat.com was registered on June 12, 2012
I have no idea of why Oversee would register this domain or pay for a three member panel to try to save it.
The domain is a typo of the casino game Baccarat
The domain is also a typo of the famous french glass maker Baccarat.
The domain was parked but the domain was inactivated after the UDRP was filed which the panel apparently didn’t like.
Oversee’s argument is pretty interesting considering they or a sister company owns the parking company where the domain was parked.
Here is what Oversee had to say on why they should keep the domain name:
“The Respondent submits that it acquired the Domain Name as part of its business practice identifying and registering descriptive domain names which can be populated with pay-per-click advertising or sold at a price higher than the costs of registration. ”
“In order to avoid the registration of domain names that arguably coincide with trademarks, the Respondent operates an automated filtering system and uses human reviewers to identify domain names as potentially ineligible for registration because of trademark infringement.”
“According to the Respondent because the Domain Name consists of two generic words “online” and “bacarrat” it has the right to register the Domain Name and use it in a manner consistent with its generic meaning. ”
“The Respondent submits that it has registered and holds the Domain Name in the hope that online gambling might one day be legal throughout the United States”.
“The Respondent further submits that the use of domain names for a PPC landing page is legitimate and establishes rights or legitimate interests in a domain name.”
“The Respondent concludes that since it has registered a generic domain name that it has used to host PPC advertising related to the card game Baccarat, it is offering a legitimate service to consumers and therefore has an own right or legitimate interest in the Domain Name.”
“The Respondent contends that there is no evidence that it knew of and targeted the Complainant when it registered the Domain Name. ”
“During the registration process neither its automated filtering system nor its human reviewers identified the Domain Name as potentially ineligible for registration because it infringed a third party trademark. ”
“The Respondent submits that the Complainant does not provide any evidence that the Respondent targeted the Complainant, nor that it intentionally provided hyperlinks to websites of competitors of the Complainant in order to frustrate the Complainant’s business. ”
“According to the Respondent, the screenshots of the website under the Domain name which it has submitted as evidence show links which appear when the landing page is first launched to either the Baccarat card game or items of general interest.”
Here is the relevant parts of the panel decision:
“The Domain Name resolves to a landing page which shows a visitor links to other websites which are generated by an advertising program to which the Respondent has subscribed. As the Respondent has indicated, it receives a share of the income generated by the clicks on the links on its landing page.”
“The Panel considers that as a professional domain name entrepreneur the Respondent is or should be aware of the workings of the advertising service he has contracted. ”
“Apparently, this generates PPC links which are tailored to the profile of the user laid down in cookies placed on his/her computer and/or shown by its behavior on the website. If that profile indicates an interest in, for instance, crystal wares or related goods, the advertising program generates links to websites containing products similar to those of the Complainant.”
“There is no evidence that, as the Respondent submits, these screenshots have been generated by other than normal behavior of the Complainant on the website or that the links shown have been unduly influenced by the Complainant.”
“The Respondent has not refuted that the links that a user would see are determined by the user’s profile, as set out above. Therefore, the Panel assumes that a user may be shown links to websites relating to crystal wares, if according to the advertising program that fits best with the profile of the user.”
Here is the relevant
“The Panel notes that the Respondent, apparently after these proceedings were initiated, has barred access to the website under the Domain Name, so that the Panel has not been able to verify the workings of the website. The Respondent has not given a reason for this behavior which complicates the fact finding by the Panel.”
“Taking all the above into account, the Panel concludes that it comes for the account of the Respondent that the website under the Domain Name shows some users links to websites containing products of the Complainant and its competitors.”
“Under the circumstances of this case, such a use of the Domain Name can not be considered to constitute a bona fide offering of goods and services.”
“Therefore, the Panel concludes that the Complainant has provided sufficient evidence that the Respondent has no rights or legitimate interests as set out in paragraph 4(c)(iii) of the UDRP.”
C. Registered and Used in Bad Faith
“The Respondent has not refuted that it was aware of the Trademarks when it registered the Domain Name.
“There is ample evidence submitted by the Complainant of the longstanding and widespread reputation of the Trademarks and the other BACCARAT trademarks, which have been used by the Complainant since at least 1860.
In fact, the Respondent mainly submits that its automated filtering system nor its human reviewers identified the Domain Name as potentially ineligible because it would infringe a third party trademark. Clearly, given the Respondent’s business of commercializing generic domain names any flaw in that system or misjudgement, resulting in registering an infringing domain name, comes for the account of the Respondent.
“As to the question of bad faith registration, the case revolves around the question whether the Respondent was targeting the Complainant when he registered the Domain Name.
“In this context “targeting” means not only whether the Respondent was or should have been aware of the Trademarks, but also whether it was or should have been aware of the likelihood that users visiting the website under the Domain Name would be presented with links to websites displaying the products of the Complainant and/or its competitors.
As set out above under section 7B, that is the case. The Respondent has chosen the particular mechanism for his PPC website and is responsible for the fact that it generates links to websites related to crystal wares.
Therefore, the Respondent targeted the Trademarks when he registered the Domain Name as he knew (or should have known) that it was similar to the Trademarks and that it was likely that, when used in the context of its PPC business, it would “trigger” links to websites for the same products as the Complainant sells.
These facts, taken together, lead the Panel to conclude that the Domain Name was registered in bad faith.
As to bad faith use of the Domain Name, the facts show that the Respondent is using the Domain Name also to attract Internet users who believe that the website under the Domain Name relates to products of the Complainant.
In the opinion of the Panel, the fact that the Respondent, upon request of the Complainant, locked certain keywords relating to the website under the Domain Name- and is willing to lock others if so requested by the Complainant , does not remove the bad faith from the use of the Domain Name. On the contrary, the fact that the Respondent did not of itself block such keywords, but only after it was notified thereof by the Complainant, underlines the bad faith intent.
For all the foregoing reason the Panel concludes that the Domain Name has been registered and is being used in bad faith.”
i’m not a smart man… if i was i’d sue anybody who used the word rat in their name.
i missed the point. what is the problem with registering two generic words and giving results related to someone who has a trademark on them? is it the typo? i mean, in which way online bacarrat is confusing with the tradmark? what about online casino? if a company is named casino them they have right to it?
Parking isn’t dead. It’s just getting killed.
Yes, it’s a mystery why they wanted this domain. Maybe they didn’t
know it was a ‘typo’, and thought it was the correct spelling?!
Michael Berkens says
Its s typo of the casino game and it seems the results showed for a period links related to the glass maker. Oversee is saying they forced the results by using the search box on the DS page to change the results to the glass maker but DS should have blocked that from happening
Sorry for the dumb question, but where does the parking company get the link on the site that leads to Baccarat SA of Baccarat, France?
Meaning, in order for a websites to display the products of the Complainant it needs to get approval from someone? So somewhere along the food chain the french company agreed for search engines to publicize their products. Hence its just how the system works. I mean big G makes nice money from this. Its a legit business and in addition in order for a link to lead to someone it had to have gotten permission from someone along the line. Pls explain my misunderstanding.
Michael Berkens says
“but where does the parking company get the link on the site that leads to Baccarat SA of Baccarat, France? ”
The parking company like Google trys to understand what people are searching for when they land on a parked page and DomainSponsor has always had a search box on the parked page. So if visitors go the to the parked page and type in Baccarat glass that link will appear and it could be the glass manufacturer that is advertising on Google that the links go to or stores carry Baccarat or compositors that are buying ads under the keyword Baccarat
@ Berkens – So clearly it is part of the cycle, and therefore by advertising on Google they allow it to be used in links. It is part of business and should not be used against Oversee. I assume there is a clause by Google that allows this. So why come and go at Oversee. They should be thankful that it links to their site. They get business by it, and by them agreeing to advertising on Google they are in affect agreeing to this as part of the process..
Michael Berkens says
If you haven’t followed it before its hard to understand especially because it makes no logical sense, but through years of case law is its perfectly fine for Google to sell ads under trademarks to the TM holder or competitors of the TM holder but domain holders can lose domains if they display ads for the TM term
Do you know what happened to iPhoneTester.com? I used to enjoy that site. It just expired. Then the site went away.
just noticed that onlinebaccarat.com was also lost to the same complainant…