2.1In dit kort geding staat het volgende, als enerzijds gesteld en anderzijds niet of onvoldoende gemotiveerd weersproken, vast:
a. a) Eiseres is op grond van overdracht, licentie dan wel sublicentie gerechtigd tot de
exclusive worldwide live streaming rights for betting purposesmet betrekking tot de volgende sportwedstrijden:
- The World Snooker Tour
Tennis:
- The ATP Chalienger Tour
Basketbal:
- The Turkish Airlines Euroleague
- The Eurocup competitions
Voetbal:
- The Community Shield
- England Men's senior Team international friendly home matches
- The FA Cup matches
- England U21 Men's team home matches
- Major League Soccer
Badminton:
- The World Championships
- Sudirman Cup
- Thomas/Uber Cup
- The World Superseries
- The Grand Prix Gold Series
b) Gedaagde legt zich toe op het aanbieden van
online sports gaming and gambling services. Zij doet dit via haar website
www.1xbet.com. Op die website zijn - via
embedded linkswaarmee binnen de website van gedaagde een venster wordt geopend - sportwedstrijden te zien waarop gegokt kan worden.
c) Eiseres heeft gedaagde herhaaldelijk gesommeerd de openbaarmaking van beeld- en geluidsverslagen waartoe eiseres (auteurs)rechthebbende is te staken.
d) Eiseres heeft ook Curacao eGaming N.V., welke vennootschap aan gedaagde een online-gaming sublicentie heeft verschaft, aangeschreven inzake deze inbreuken.Bij e-mail van 13 oktober 2016 heeft gedaagde Curacao Gaming N.V. onder meer als volgt bericht:
“As you aware of the fact that our company is operate under Curacao e-Gaming Sublicense more than 2 years using 1xbet.com domain.
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In this regard, let me describe in more details the history of relations IxCorp NV and IMG, as you can make an objective conclusion on the situation and were able to help us in solving the issue.
In September, 2014 it was the first time when IMG contacted us. It was e-mail with the complaint about the availability of online video content 1xbet.com (broadcasts of sporting events), which is assigned to IMG. We have prepared a detailed response that all video content which available on 1xbet.com was provided to us under the License Agreement between Videostream and 1xCorp. At the same time we from our side present on the site only a place where to put the window with the player, and all the other technical and organizational issues (content selection and the formation of the video stream itself, the addition of animated elements, navigation etc.) are solved by our partner Videostream on their side. Also under the License Agreement Videostream assume all the legal responsibilities of cleanliness provided content, as well as the full responsibility in case of any violations. Moreover, Videostream strongly recommended forwarding any dispute or appealing issues of the third parties regarding copyright to them immediately.
As well as in a letter and later at the meeting we explained to the representatives of IMG, that we were not provided with the content, only with the service "as is" and do not have the technical ability to intervene into the video stream to remove any content.
In addition, as previously we had no relationship with IMG we didn't find the exhaustive information about the company and its expertise in the publicity available source. We asked representatives of IMG to provide us with a list of events that are subject to their rights, as well as copies of documents or other materials, confirming the existence of rights of IMG. This is completely normal and reasonable procedure would allow clarifying and resolving the issue. However, the requested information wasn't provided to us without assigning any reasons.
Along with it, we contacted Videostream, which confirmed the presence of ifs rights to the provided content. We have also provided the IMG with all contact details of Videostream and asked to discuss all the further issues directly with them.
After that, during the 2014-2016 we repeatedly received similar letters from the representatives of IMG, however, to provide us with the information confirming that they have rights, as well as a complete list of events, they were not able.
We have asked them to provide us with their commercial offer with the list of contents an unlimited number of times, as well as to provide with fees, but we have not provided with it yet At last, we have notified the IMG that we are ready to keep dialogue going if we will provided with the requested information.
Thus, we believe we have taken all possible measures for the peaceful and constructive resolution of the issue. We acted exclusively within the legal framework, and didn't expose to risk the reputation of our company and more over the reputation of Curacao e-Gaming.
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Of course, you have better experience in resolving such disputes than we do. So we have full confidence in your competent opinion and are willing to follow all your advices and recommendations regarding this issue, up to the complete elimination of video stream from the site for the duration of the proceedings. We believe that you will treat the situation with understanding and the fact that the removing of the video stream from the site will entail for our company's reputation and financial losses.
We hope for your professional assistance in this regards and we are willing to take all the costs related to the protection of the reputation and interests of 1 xCorp and Curacao e-Gaming.”