Complainant is Twitter, Inc. of San Francisco, California, United States of America, represented by The GigaLaw Firm, Douglas M. Isenberg, Attorney at Law, LLC, United States of America.
Respondent is Whois Agent, Whois Privacy Protection Service, Inc. of Kirkland, Washington, United States of America / Domain Support of Hong Kong, China. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with eNom (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 20, 2015. On August 21, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On August 21, 2015, 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 and contact information in the Complaint. The Center sent an email communication to Complainant on August 27, 2015 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amendment to the Complaint on August 28, 2015.
The Center verified that the Complaint together with the amendment to 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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on August 28, 2015. In accordance with the Rules, paragraph 5, the due date for Response was September 17, 2015. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on September 18, 2015.
The Center appointed Dinant T. L. Oosterbaan as the sole panelist in this matter on September 28, 2015. The Panel finds that it was properly constituted. 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
Complainant operates a real-time global information network. Complainant’s Twitter service is available in more than 35 languages and is among the world’s most popular social media platforms. Complainant operates a website using the domain name which was created on January 21, 2000.
According to the evidence submitted by Complainant, Complainant is the owner of numerous trademark registrations for TWITTER, including the trademark TWITTER registered with the United States Patent and Trademark Office under number 77166246, first used in commerce on August 31, 2006, with a filing date of April 26, 2007 and a registration date of May 12, 2009.
The Domain Name was registered on April 29, 2007. 5. Parties’ Contentions A. Complainant
Complainant submits that the Domain Name is confusingly similar to its TWITTER trademarks as it contains the well-known TWITTER trademark in its entirety. The addition of the word “tour” is not sufficient to distinguish the Domain Name from the TWITTER trademark.
According to Complainant, Respondent has no rights or legitimate interests in respect of the Domain Name. Respondent is not commonly known by the Domain Name and has not acquired any trademark or service mark rights in the Domain Name. According to Complainant, Respondent is using the Domain Name to redirect users to websites that falsely convey the impression that the users’ computers have been hacked or their information compromised as part of a common phishing scheme also known as “tech support scam pop-up”. According to Complainant, Respondent has failed to create a bona fide offering of goods or services and is not making a legitimate noncommercial or fair use of the Domain Name.
Complainant submits that Respondent has registered and is using the Domain Name in bad faith, in particular as Respondent is using the Domain Name as part of a common phishing scheme. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
Paragraph 15(a) of the Rules instructs this 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”.
Paragraph 4(a) of the Policy requires that Complainant proves each of the following three elements to obtain an order that the Domain Name should be transferred or cancelled:
(i) the Domain Name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith.
The Panel will proceed to analyze whether the three elements of paragraph 4(a) of the Policy are satisfied in this proceeding. A. Identical or Confusingly Similar
Pursuant to paragraph 4(a)(i) of the Policy, Complainant must first of all establish rights in a trademark or service mark and secondly that the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights.
Complainant has established that it is the owner of numerous trademark registrations for TWITTER. The Domain Name incorporates the entirety of the widely-known TWITTER trademark as its distinctive element. Many UDRP decisions have found that a disputed domain name is confusingly similar to a complainant’s trademark where the disputed domain name incorporates the complainant’s trademark in its entirety. The addition of the generic and non-distinctive element “tour” is insufficient to avoid a finding of confusing similarity.
The Panel finds that Complainant has proven that the Domain Name is confusingly similar to Complainant’s trademark. B. Rights or Legitimate Interests
In the opinion of the Panel, Complainant has made a prima facie case that Respondent lacks rights or legitimate interests in the Domain Name. Respondent is not commonly known by the Domain Name nor has it acquired trademark rights. Complainant has not licensed or otherwise permitted Respondent to use any of its trademarks or to register the Domain Name incorporating its marks. Respondent is not making a legitimate noncommercial or fair use of the Domain Name without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark of Complainant. Based on the evidence provided by Complainant, Respondent only uses the Domain Name as part of a common phishing scheme known as “tech support scam pop-up”; such tech support scam presents itself to the user while browsing the web in the form of a pop-up message saying that a virus or other suspicious activity has been detected, often providing a phone number which the user can call to get “support” for the problem. Obviously, such phishing scam cannot be considered a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the Domain Name. Respondent did not submit any response.
Under these circumstances, the Panel finds that Respondent has no rights or legitimate interests in the Domain Name. C. Registered and Used in Bad Faith
The Panel finds that the Domain Name has been registered and is being used in bad faith. While Complainant’s TWITTER trademark matured to registration after the Domain Name’s registration, it was used in commerce before the Domain Name’s registration. Noting the widely-known status of the TWITTER mark and the overall circumstances of this case, the Panel finds it more likely than not that Respondent knew or should have known that the Domain Name included Complainant’s widely-known TWITTER trademark.
The Panel notes that Respondent’s use of the website at the Domain Name which incorporates Complainant’s trademark in its entirety indicates that Respondent possibly registered the Domain Name with the intention to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the trademark of Complainant as to the source, sponsorship, affiliation, or endorsement of its website or location or of a service on its website or location, as per paragraph 4(b)(iv) of the Policy. Furthermore, the Panel accepts Complainant’s undisputed submission that bad faith registration and use of the Domain Name is further indicated by the fact that there is strong suspicion of Respondent using the Domain Name in an elaborate common phishing scam.
The Panel finds that Complainant has proven that the Domain Name has been registered and is being used in bad faith. 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 be transferred to Complainant.
Dinant T. L. Oosterbaan
Sole Panelist
Date: October 6, 2015
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