The Complainant is Multi Media, LLC of Las Vegas, Nevada, United States of America (“United States”), represented by Randazza Legal Group, United States.
The Respondent is Whois Agent, Whois Privacy Protection Service, Inc. of Kirkland, Washington, United States / Inga Ivanova of Tyumen, Russian Federation. 2. The Domain Name and Registrar
The disputed domain name is registered with N, Inc. (N LLC) (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 2, 2016. On June 2, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 2, 2016, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on June 3, 2016 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 amendment to the Complaint on June 9, 2016.
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 the Respondent of the Complaint, and the proceedings commenced on June 16, 2016. In accordance with the Rules, paragraph 5, the due date for Response was July 6, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 7, 2016.
The Center appointed Adam Samuel as the sole panelist in this matter on July 14, 2016. 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
The Complainant provides online streaming adult entertainment services through its domain name . The Complainant owns United States trademark No. 4288943, which was registered on February 12, 2013.
The disputed domain name was registered on May 18, 2015. The website at the disputed domain name resolves to a website offering very similar services to those of the Complainant’s website, with links to the Complainant’s competitors. 5. Parties’ Contentions A. Complainant
These are the Complainant’s contentions with which the Panel may or may not agree.
The disputed domain name was registered almost three years after the Complainant registered its trademark CHATURBATE and almost four years after the Complainant began using its domain name to offer similar services to those now offered by the Respondent through the disputed domain name.
The disputed domain name consists of the Complainant’s trademark and the generic Top-Level Domain (“gTLD”) “.video”.
The Respondent is not known by the disputed domain name. The Respondent is clearly using the disputed domain name for a commercial purpose, obtaining revenue from pay-per-click links to the Complainant’s competitors. The Respondent chose the disputed domain name to profit from the Complainant’s goodwill in its CHATURBATE trademark. The Respondent clearly knew of the Complainant’s activities when it registered the disputed domain name. The Respondent also acted in bad faith by using a privacy service.
The Respondent is offering the same services as the Complainant through a website to which the dispute domain name resolves and which has a similar layout to the Complainant’s website and the Complainant’s trademark prominently displayed on it. So, when Internet users arrive at the Respondent’s website, they may believe that they have arrived at the Complainant’s website or just remain on the Respondent’s site because it offers the same services. There is a clear potential for confusion between the website to which the disputed domain name resolves and the Complainant’s website. This is made worse by the fact that the Respondent’s website to which the disputed domain name resolves prominently displays the Complainant’s trademark without any disclaimer, offers the same services as the Complainant and has a similar layout to the Complainant’s website. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Under the Policy, the Complainant must prove that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which it has rights; and
(ii) the 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
The disputed domain name consists of the Complainant’s trademark, CHATURBATE, a made-up word with no ordinary meaning except as a way of reflecting the Complainant’s activity in combining conversation and sexual activity, and the gTLD “.video”. The disputed domain name is confusingly similar to the Complainant’s trademark. B. Rights or Legitimate Interests
The Respondent is not called “Chaturbate” or anything similar. There is no evidence that the Complainant has ever authorized the Respondent to use its trademark. For these reasons, and in the absence of any response on this point, notably one contradicting the Complainant’s claim that the Respondent has never been connected to it in any way, the Panel concludes that the Respondent has no rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith
The disputed domain name consists of the Complainant’s trademark, which is a made-up word with no independent meaning and the gTLD “.video” which reflects both the Complainant’s and the Respondent’s business. The Respondent’s website is very similar to the Complainant’s in its layout and apparent content. In the circumstances, the Panel concludes that the Respondent most likely registered the disputed domain name for the Complainant’s trademark value.
Without a substantive response to the Complaint, it is impossible to know exactly why the Respondent registered the disputed domain name. In this Panel’s view, one is left with three possible motives for the Respondent’s decision to register the disputed domain name: to disrupt the Complainant’s relationship with their customers or potential customers; attempt to attract Internet users for potential commercial gain; or persuade the Complainant to buy the disputed domain name from it for an amount in excess of the Respondent’s out-of-pocket expenses. These all constitute evidence of registration and use in bad faith. The Respondent’s motivation may have been more than one of these and perhaps all three.
In any event, the Panel notes that the website resolves to a webpage offering services in competition to the Complainant in the adult entertainment industry, which constitutes bad faith as per paragraph 4(b)(iv) of the Policy.
For all these reasons, the Panel concludes that the Respondent registered and is using the disputed domain name 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 disputed domain name be transferred to the Complainant.
Adam Samuel
Sole Panelist
Date: July 15, 2016
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