Complainant is Surecom Corporation NV of Willemstad, Curacao, Kingdom of the Netherlands, represented by Eidsness Law Offices, United States of America.
Respondent is Noone, Marco Meisner of Czech Republic. 2. The Domain Name and Registrar
The disputed domain name is which is registered with D, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 19, 2012. On July 19, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 19, 2012, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. The Center received informal email communications from Respondent on July 22, July 23 and July 24, 2012.
The Center verified that the 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 Respondent of the Complaint, and the proceedings commenced on July 25, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was August 14, 2012. Respondent did not submit any formal response. Accordingly, the Center notified the parties about the commencement of the panel appointment process on August 15, 2012.
The Center appointed Gerardo Saavedra as the sole panelist in this matter on August 22, 2012. This Panel finds that it was properly constituted. This 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
Complainant operates a free, live adult webcam site known as “C”.
Complainant has rights over the CAM4 trademark for which it holds some trademark registrations, such as: registration No. 4,062,460 with the United States Patent and Trademark Office, filed in December 2010, registered on November 29, 2011, classes 35 and 38, and stated first use in 2007; and registration No. 10,053,701 with the European Office for Harmonization in the Internal Market, registered on November 16, 2011, classes 35 and 41.
Complainant is the registrant of the domain name which was created in 1999.
The disputed domain name was created on March 2, 2012. 5. Parties’ Contentions A. Complainant
Complainant owns and operates a free, live adult webcam site known as “C”. In June of 2007, Complainant launched its adult webcam site utilizing the domain name (“Complainant’s Website”). Within one year of its launch Complainant’s Website exceeded 15 million page views per month and by September of this year it is generating over 162 million visits each month. As a result of hard work, massive investment of capital and effort, Complainant’s Website now enjoys a traffic ranking of 244 in the world, which means that of all the websites in the world, Complainant’s Website is the 244th most popular in terms of traffic, according to the Google Analytics “Visitors Overview” graphic.
The disputed domain name is identical or confusingly similar to the CAM4 mark in which Complainant has statutory and common law rights.
Respondent should be considered to have no rights or legitimate interests in respect of the disputed domain name. Respondent’s sole purpose in registering the disputed domain name was, and is, to steal away traffic that rightfully belongs to Complainant’s Website, thus causing a disruption of the business of a competitor. By using the disputed domain name, Respondent has intentionally attempted to attract for financial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the disputed domain name website.
Respondent has no trademark rights and has not been known by the disputed domain name, and there is no evidence whatsoever that Respondent was using or planning to use the disputed domain name in a bona fide offering of goods or services.
The disputed domain name exists in large part to upload videos of live broadcasts of Complainant’s Website performers, which is expressly prohibited in the terms of use of Complainant’s Website. Any user or viewer of Complainant’s Website agrees to be bound by these terms. At the present time, there are approximately 27,000 videos on the website associated to the disputed domain name that were pirated from Complainant’s Website.
A simple Google search enabled Complainant to find a conversation between Respondent and the publisher of the software Respondent uses to pirate Complainant’s Website broadcasts. In it, Respondent is discussing how many streams of video belonging to Complainant’s Website he can record at one time.
Respondent’s actions posting videos of Complainant’s Website performers is very disruptive to such performers who only desired to broadcast in real time on a web camera via Complainant’s Website service, not over and over again via video taken surreptitiously and posted on a site with which they have no contractual agreement, all in violation of their privacy rights and copyrights. Several complaints have been generated to Complainant’s Website from its performers, and many have quit broadcasting in light of their experience having their performances stolen by Respondent and uploaded to Respondent’s site, where Respondent profits from their performances.
Respondent has sent email messages to people making complaints, which state that for USD 30 their images will be removed from the disputed domain name website. However, many times the images are almost immediately re-posted after the complaining individual has sent his/her payment.
The disputed domain name should be considered as having been registered and used in bad faith. Respondent clearly picked “cam4” to usurp Complainant’s rights, in bad faith, as it cannot possibly argue that it was only registering generic or surname words, with no particular interest in targeting Complainant’s mark.
Respondent has intentionally attempted to attract, for commercial gain, Internet users to its own website, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website. Internet users are very likely to be confused, mistaken or deceived into erroneously believing that Respondent’s website at the disputed domain name is authorized, sponsored, licensed or endorsed by or otherwise associated with Complainant, when in fact it is not.
The disputed domain name was registered 13 years after Complainant’s domain name was first registered and five years after Complainant’s Website began its meteoric rise to become one of the most popular websites today.
As early as March of this year, Complainant became aware of the disputed domain name, which at that time was hosted by Certified Hosting, and registered by “noname” Florian Trooger. Notices of the trademark infringement and copyright violations were sent to the registrant of the disputed domain name at that time, and ultimately a dialogue was begun with the attorney for the hosting site, Certified Hosting. Content was removed from the disputed domain name website, but then the website shifted domain name registrars and the content was reposted, clearly in bad faith defiance of the legitimate rights and concerns of Complainant.
Complainant requests that the disputed domain name be transferred to Complainant. B. Respondent
Respondent did not reply to Complainant’s contentions. Respondent’s informal email communications to the Center (i) of July 22, 2012, arise out from the Center’s request for registrar verification and in it Respondent claims to be named Marco Meisner, which is the name appearing in the Registrar’s response and in the WhoIs report; (ii) of July 22, 23 and 24, 2012, just state “I did not know that c exists when I have registered my domain. The “4” in cam4-rec stands for “for” so “cam for rec”. “rec” means record. I did not intend and similarity to any existing webpage. The purpose was solely to share recorded cam videos. Also I want to point out that the design of my page and the logo are completely different from c. please let me know what I can do to get the domain unlocked again”. 6. Discussion and Findings
Paragraph 15(a) of the Rules instructs the Panel to “decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”.
The informal email communications from Respondent referred to above cannot be deemed as an official response since they do not comply with the requirements set forth in the Rules, paragraph 5(b). Eventhough after such email communications from Respondent the Center formally notified Respondent of the Complaint and set forth a period to file a response, Respondent chose not to file any formal response. Thus this Panel has decided not to take into account such email communications from Respondent.1
The lack of a proper response from Respondent does not automatically result in a favorable decision for Complainant.2 The burden for Complainant, under paragraph 4(a) of the Policy, is to show: (i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; (ii) that 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
It is undisputed that Complainant has rights in the CAM4 trademark.
The disputed domain name entirely incorporates the CAM4 trademark, adding the suffix “-rec”. The addition of such suffix is not enough to avoid similarity, nor does it add anything to avoid confusion. Prior UDRP panel decisions support this Panel’s view (see Nokia Corporation v. N a.k.a. IBCC,WIPO Case No. D2000-0102; Sony Kabushiki Kaisha aka Sony Corporation v. A. Smith,WIPO Case No. D2006-0652; LEGO Juris A/S v. Masayuki Sato,WIPO Case No. D2011-1639).
Therefore, this Panel finds that the disputed domain name is confusingly similar to Complainant’s CAM4 trademark. B. Rights or Legitimate Interests
Complainant has alleged and Respondent has failed to deny that Respondent has no rights or legitimate interests in respect of the disputed domain name.
While submitting other supporting materials, Complainant did not, however, submit screenshots of the website at the disputed domain name and of Complainant’s Website. As set forth in other UDRP cases, this Panel reiterates that it is not its role to look for evidence not supplied by the parties. Notwithstanding the aforesaid, due to such lack of submission of screenshots and the lack of a proper Response, in this particular case this Panel decided to access the website at the disputed domain name and Complainant’s Website.3 This Panel found that (i) both the website at the disputed domain name and Complainant’s Website feature pornographic materials, and (ii) at the bottom of the disputed domain name website it appears the following legend: “Copyright 2010 Cam4-R C Cam4 videos Webcam”.
This Panel considers that Complainant has established prima facie that Respondent has no rights or legitimate interests in the disputed domain name4. In the file there is no evidence of circumstances of the type specified in paragraph 4(c) of the Policy, or of any other circumstances, giving rise to a possible right to or legitimate interest in the disputed domain name by Respondent. In the absence of any explanation from Respondent as to why it might consider it has a right or legitimate interest in using a domain name which entirely incorporates Complainant’s CAM4 trademark, this Panel considers that Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
Complainant contends that Respondent’s registration and use of the disputed domain name is in bad faith, which Respondent chose not to rebut.
Taking into consideration that Complainant’s registration and use of its CAM4 trademark and domain name preceded the creation of the disputed domain name, Complainant’s Internet presence and the content of the website associated to the disputed domain name, this Panel is of the view that Respondent should have been fully aware of the existence of Complainant’s Website at the time Respondent obtained the disputed domain name.
Respondent is using Complainant’s mark at the disputed domain name website without Complainant’s authorization. Further, the use of the disputed domain name for a website that displays materials generically similar to those featured in Complainant’s Website constitutes an improper use of Complainant’s mark and is enough for this Panel to establish Respondent’s bad faith for purposes of the Policy.5
Further, this Panel considers that in using the disputed domain name Respondent has sought to create a likelihood of confusion with Complainant and Complainant’s mark as to the sponsorship or source or affiliation or endorsement of the website associated to the disputed domain name, when in fact there is no such connection.
In light of all the above, this Panel finds that Complainant has satisfied paragraph 4(a)(iii) of the Policy. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, this Panel orders that the disputed domain name be transferred to Complainant.
Gerardo Saavedra
Sole Panelist
Dated: September 5, 2012
1 Similar situations in LEGO Juris A/S v. Charlie Carmichael,WIPO Case No. D2010-1507 and in World Wrestling Entertainment, Inc. v. Ki Sung,WIPO Case No. DMX2009-0005, where this Panel also declined to take into account as official response an email communication.
2 See Berlitz Investment Corp. v. Stefan Tinculescu,WIPO Case No. D2003-0465, where it is established: “the panel finds that as a result of the default, Respondent has failed to rebut any of the factual assertions that are made and supported by evidence submitted by Complainant. The panel does not, however, draw any inferences from the default other than those that have been established or can fairly be inferred from the facts presented by Complainant and that, as a result of the default, have not been rebutted by any contrary assertions or evidence”.
3 See Sensis Pty Ltd., Telstra Corporation Limited v. Yellow Page Marketing B.V.,WIPO Case No. D2011-0057: “UDRP panels frequently avail themselves of resources not supplied or mentioned by the parties, when these are publicly available and have a high degree of credibility for a relevant purpose [...] such resources may include the [...] websites associated with the domain names [...] The panel will use these resources, for example, to [...] fill in the factual gaps left by a silent respondent, or test the credibility and completeness of the parties’ statements”.
4 See Intocast AG v. Lee Daeyoon,WIPO Case No. D2000-1467: “For methodical reasons it is very hard for the Complainant to actually prove that Respondent does not have rights or legitimate interests in respect of the domain name, since there is no strict logical means of verifying that a fact is not given [...] Many legal systems therefore rely on the principle negativa non sunt probanda. If a rule contains a negative element it is generally understood to be sufficient that the complainant, by asserting that the negative element is not given, provides prima facie evidence for this negative fact. The burden of proof then shifts to the respondent to rebut the complainant’s assertion”.
5 See The Body Shop International plc v. A-Team/ Lasse Nygaard,WIPO Case No. DAS2003-0001; Spice Entertainment Inc. v. AWOS and Steve Fleming,WIPO Case No. D2006-0114; Swarovski Aktiengesellschaft v. fangfei,WIPO Case No. D2012-0747.
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