Complainant is IFPI Secretariat of London, United Kingdom of Great Britain and Northern Ireland ("United Kingdom") and IFPI, International Federation of the Phonographic Industry of Zurich, Switzerland internally represented.
Respondent is Alexander Ulanov, FunkySouls of Moscow, Russian Federation. 2. The Domain Name and Registrar
The disputed domain name (the "Domain Name") is registered with GoD, LLC (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on August 25, 2016. On August 25, 2016, the Center transmitted by e-mail to the Registrar a request for registrar verification in connection with the Domain Name. On August 25, 2016, 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 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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on September 1, 2016. In accordance with the Rules, paragraph 5, the due date for Response was September 21, 2016. Respondent sent informal communication on August 31, 2016 and September 3, 2016. The Response was filed with the Center on September 20, 2016.
The Center appointed Robert A. Badgley as the sole panelist in this matter on September 30, 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
Complainants are related companies who have represented the recording industry for several decades, operating in 57 countries. According to the Complaint, Complainants "are seen as the most authoritative source of market research, information and advice concerning the recording industry internationally, providing a comprehensive range of global industry statistics". Complainants assert that they provide such services under the IFPI mark, and have done so for decades. Complainants have submitted into the record evidence of a number of their trademark registrations, including registrations in the United Kingdom, Switzerland, China, and the Russian Federation (Respondent's location on record) during the 1990s, for the IFPI mark in connection with various goods and services including: records, tapes, CDs, discs, videos, films, recording media, printed matter, magazines, periodicals, professional consultancy and support services, and so forth. In this context, Complainant IFPI, International Federation of the Phonographic Industry has inter alia international trademark registration no. 643692 for IFPI, registered on September 20, 1995.
Complainants also own several domain names featuring the IFPI mark, including and .
The Domain Name was registered on May 12, 2006. The Domain Name is redirected to a website operated by Respondent at . The website is a mix of English and Russian language, and offers music downloads. According to Complainants, these downloads are not authorized by Complainants or IFPI member recording artists or associations, and they constitute piracy. 5. Parties' Contentions A. Complainants
Complainants assert that they have established all three elements required under the Policy for a transfer of the Domain Name. B. Respondent
Respondent's brief Response, repeating the statements made in his informal communication of September 3, 2016, states in full:
"There is a mistake in that complain [sic] as far as I see. I is not used to associate with IFPI organisation. It is not used for any website at all (it only redirects to some sites. If you wish, we can redirect it to anything else). I own it for 10 (TEN) years! The purpose of that domain is a mail service: there is 10+ email accounts. We cannot transfer our business mails from that domain. And I can't understand why wasn't anyone interested in that domain for 10 years while we were developing our business contacts with that address????" 6. Discussion and Findings
Paragraph 4(a) of the Policy lists the three elements which Complainants must satisfy with respect to the Domain Name:
(i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainants have 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. A. Identical or Confusingly Similar
The Panel concludes that Complainants clearly hold rights, through registration and use, in the mark IFPI. The Panel also finds the Domain Name to be identical to the IFPI mark. The generic Top-Level Domain ("gTLD") ".info" is largely disregarded under the first UDRP element confusing similarity test.
Complainants have established Policy paragraph 4(a)(i). B. Rights or Legitimate Interests
Pursuant to paragraph 4(c) of the Policy, Respondent may establish its rights or legitimate interests in the Domain Name, among other circumstances, by showing any of the following elements:
(i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services; or
(ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the Domain Name, even if you have acquired no trademark or service mark rights; or
(iii) you [Respondent] are 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 or service mark at issue.
The Panel concludes that Respondent has no rights or legitimate interests in respect of the Domain Name. The Domain Name is redirected to a website under Respondent's control ("If you wish, we can redirect it to anything else") where illegal musical downloads are offered. This is obviously not a bona fide use of the Domain Name, and the fact that Respondent also appears to be using the Domain Name for email addresses cannot overcome the taint arising from the illicit downloading activity made possible by the website.
Complainants have established Policy paragraph 4(a)(ii). C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides that the following circumstances, "in particular but without limitation," are evidence of the registration and use of the Domain Name in "bad faith":
(i) circumstances indicating that Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of its documented out of pocket costs directly related to the Domain Name; or
(ii) that Respondent has registered the Domain Name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or
(iii) that Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) that by using the Domain Name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent's website or other on line location, by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of Respondent's website or location or of a product or service on Respondent's website or location.
On this record, the Panel finds it more likely than not that Respondent registered the Domain Name primarily to attract, for commercial gain, Internet users by creating confusion among Internet users as to the source of the music being offered for download at Respondent's website. This conduct constitutes bad faith registration and use within the meaning of Policy paragraph 4(b)(iv).
Complainants have established Policy paragraph 4(a)(iii). 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 Complainants.
Robert A. Badgley
Sole Panelist
Date: October 3, 2016
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