The Complainant is Idle Media, Inc. of Leesport, Pennsylvania, United States of America, represented by Adelman Matz P.C., United States of America.
The Respondent is Andrew Wisdom of Pattaya, Thailand. 2. The Domain Name and Registrar
The disputed domain name is registered with PDR Ltd. d/b/a PublicDomainR (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 24, 2016. On September 26, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 27, 2016, the Registrar transmitted by email to the Center its verification response confirming that the 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 the Respondent of the Complaint, and the proceedings commenced on October 5, 2016. In accordance with the Rules, paragraph 5, the due date for Response was October 25, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 26, 2016.
The Center appointed Desmond J. Ryan as the sole panelist in this matter on November 11, 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 disputed domain name was registered on March 11, 2016.
The Complainant states that it is an online media and entertainment company focused on developing innovative applications at its website “www.DatP”. It owns registrations of its DATPIFF trademark in the United States of America, International registrations and registrations in the European Union in several international classes including Classes, 35, 41, 25, 48 and 42. It also owns registrations of its trademark in a distinctive logo form.
The Complainant claims to have used its DATPIFF word trademark since November 2005 and its logo trademark since November 2008. It claims to have attracted over 3 million unique visitors and to be the top new music destination for artists, DJs and fans of Hip-Hop music. It also advertises its services through various social media outlets including Facebook and Twitter and claims to have over 1.6 million “likes” and 490,000 “followers” on those sites respectively. In addition to providing music, entertainment and information services it also markets articles of clothing bearing its DATPIFF trademark and logo.
The website at the disputed domain name replicates corresponding pages from the Complainant’s website at “www.DatP”. For example the Respondent’s Homepage imitates the Complainant’s Homepage; the Respondent’s Singles page imitates the Complainant’s Singles page; the Respondent’s Mixtapes page imitates the Complainant’s Mixtapes page, and so forth. In each case the webpage at the disputed domain name prominently features the Complainant’s DATPIFF logo, its taglines and reproduces the Complainant’s “Privacy”, “Terms”, “DCMA”, “Contact” and “Advertise with Datpiff” links. 5. Parties’ Contentions A. Complainant
The Complainant contends that:
- the disputed domain name is identical to its long established and well-known trademark DATPIFF;
- the Respondent has no rights or legitimate interests in the disputed domain name; its only interest is to impersonate the Complainant in an effort to divert customers and pass off its services for financial gain;
- the Respondent’s actions in copying the Complainant’s website without permission and using it for commercial gain cannot be considered a bona fide offering of goods or services nor a legitimate non commercial or fair use of the disputed domain name;
- the Complainant has not authorized the Respondent to use its trademark in the disputed domain name;
- the Respondent is not commonly known by the disputed domain name;
- the Respondent is pretending to be the Complainant for the purpose of disrupting the Complainant’s business;
- the Respondent is using the website at the disputed domain name to impersonate the Complainant and pass off its services as those of the Complainant and is intentionally trying to attract for commercial gain, Internet users to its website by creating a likelihood of confusion and that such conduct is evidence of use and registration in bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The Complainant has established that it has rights in the trademark DATPIFF by virtue of its registration of the trademark in block letters and in logo form in the United States of America, the European Union and under the Madrid Agreement. The disputed domain name contains only the Complainant’s trademark with the addition of the gTLD “.info”. That addition serves only to define the domain in which the name is used. It does not affect the identity of the disputed domain name for the purpose of the Policy, seePandora Jewelry, LLC v. Whois Privacy Protection Service, Inc. / naiyang ren,WIPO Case No. D2010-1841.
The Panel therefore finds that the disputed domain name is identical to a trademark in which the Complainant has rights. B. Rights or Legitimate Interests
To satisfy the requirements of paragraph 4(a)(ii) of the Policy the Complainant is required to make a prima facie showing that the Respondent lacks rights or legitimate interests in respect of the disputed domain name. It is then for the Respondent to rebut that showing. Here the Complainant has asserted that it has not authorized the Respondent to use its trademark in the disputed domain name and has clearly demonstrated that the use which the Respondent is making of the disputed domain name does not constitute a bona fide offering of goods or services. There is no evidence that the Respondent is commonly known by the disputed domain name and the use being made by the Respondent of the disputed domain name is not a legitimate noncommercial or fair use. On the contrary it appears to be intended to deceive consumers and misleadingly solicit advertisers to advertise on the Respondent’s website. It also appears to harvest personal and contact data from persons who respond to its links.
The Respondent has not attempted to rebut the Complainant’s showing.
The Panel therefore finds that the Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
The Complainant has been using its trademark DATPIFF in an online forum for more than ten years prior to the registration by the Respondent of the disputed domain name. The Complainant’s evidence shows that use of its trademark has been well and widely known. The trademark is an unusual invented word and it is inconceivable that the Respondent could have adopted the disputed domain name without having knowledge of the Complainant’s trademark. The clear inference is that the Respondent registered the disputed domain name with the intention of using it to capitalize upon the reputation of the Complainant. Its subsequent conduct in using the disputed domain name to point to a website which replicates the Complainant’s website in almost every respect, including the use of the Complainant’s distinctive logo, further evidences that intention.
The Respondent has purposely set up a website at the disputed domain name which was plainly designed to deceive Internet users and to lead them to believe that by using the disputed domain name they had reached the website of the Complainant. Having reached the website they are invited to “advertise with DatPiff” and to contact the Respondent by email at “@”.
The Respondent is by using the disputed domain name intentionally attempting to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation and endorsement of the Respondent’s website. This is precisely the conduct which the Policy was created to redress.
The Panel therefore finds that the disputed domain name was 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 disputed domain name, be transferred to the Complainant.
Desmond J. Ryan AM
Sole Panelist
Date: November 22, 2016
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