The Complainant is Andrey Ternovskiy dba Chatroulette of Moscow, Russian Federation, represented by CSC Digital Brand Services AB, Sweden.
The Respondent is M W Bastings of Veenendaal, the Netherlands. 2. The Domain Name and Registrar
The disputed domain name is registered with AlpNames Limited (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on August 10, 2017. On the same date, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 11, 2017, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the Respondent's 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 August 14, 2017. In accordance with the Rules, paragraph 5, the due date for Response was September 3, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on September 4, 2017.
The Center appointed Kaya Köklü as the sole panelist in this matter on September 8, 2017. 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 is based in Moscow and operates since 2009 a popular online chat website that pairs random people from around the world together for real-time, webcam-based conversations.
The Complainant is the owner of the trademark CHATROULETTE, which is registered in various jurisdictions, i.a. with the European Union Intellectual Property Office ("EUIPO"), registered on December 4, 2012 (no. 008944076) for services in classes 35, 38 and 42.
The disputed domain name was registered on November 29, 2016.
According to the provided documentation in the case file (Annex 10 to the Complaint), the Respondent did not reply to various attempts of the Complainant to solve this dispute inter partes before initiating the present administrative proceeding.
At the time of the Decision, the disputed domain name does not resolve to an active website. However, as evidenced by the Complainant in Annex 4 to the Complaint, the disputed domain name was, for a certain period of time, used to redirect Internet users to a website offering visitors the opportunity "to win a $ 1,000 voucher" by filling out a survey, which at least requires the respective users to provide their email address, phone number and contact information, and also to websites displaying adult content. 5. Parties' Contentions A. Complainant
The Complainant requests the transfer of the disputed domain name.
The Complainant is of the opinion that the disputed domain name is confusingly similar to the Complainant's trademark CHATROULETTE.
Furthermore, the Complainant argues that the Respondent has no rights or legitimate interests in the disputed domain name and registered and used the disputed domain name in bad faith. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
According to paragraphs 14(a) and 15(a) of the Rules, the Panel shall decide the Complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable and on the basis of the Complaint where no Response has been submitted.
In accordance with paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements is satisfied:
(i) the disputed domain name is identical or confusingly similar to the trademarks in which the Complainant 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.
Paragraph 4(a) of the Policy states that the Complainant bears the burden of proving that all these requirements are fulfilled, even if the Respondent has not replied to the Complaint. Stanworth Development Limited v. E Net Marketing Ltd.,WIPO Case No. D2007-1228.
However, concerning the uncontested information provided by the Complainant, the Panel may, where relevant, accept the provided reasonable factual allegations in the Complaint as true. Belupo d.d. v. WACHEM d.o.o.,WIPO Case No. D2004-0110.
It is further noted that the Panel has taken note of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0") and, where appropriate, will decide consistent with the WIPO Overview 3.0. A. Identical or Confusingly Similar
The Panel finds that the disputed domain name is confusingly similar to the CHATROULETTE trademark of the Complainant.
First, the Panel confirms that the Complainant has satisfied the threshold requirement of having trademark rights in CHATROULETTE. As evidenced in the Complaint, the Complainant is the owner of a large number of word and figurative trademarks with regard to the CHATROULETTE mark in many jurisdictions worldwide.
Furthermore, the Panel finds that the disputed domain name is confusingly similar to the Complainant's trademark CHATROULETTE. The Panel believes that the additions to the Complainant's trademark in the disputed domain name are purely descriptive and do not create a new distinctiveness separate from the Complainant's CHATROULETTE trademark. Moreover, it is in the view of the Panel obvious that the disputed domain name directly targets the Complainant's customers and the trademark CHATROULETTE by using some additional text related to expressions in the Turkish language. The disputed domain name could be read and understood as a slogan like "buyer gets a roulette from direct chat". The almost unchanged inclusion of the Complainant's trademark to the disputed domain name in combination with the above mentioned text related to Turkish expressions are in view of the Panel indicating that the Respondent allegedly offers vouchers for the Complainant's online chat services and, hence, obviously tries to approach (misled) customers in this regard.
In view of the above, the Panel is satisfied that the Complainant has met the requirements under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
While the burden of proof remains with the Complainant, the Panel recognizes that proving a respondent lacks rights or legitimate interests may often result in the impossible task of proving a negative, requiring information that is often primarily within the knowledge of the respondent. Therefore, the Panel agrees with prior UDRP panels that the Complainant is required to make out a prima facie case before the burden of production of evidence shifts to the Respondent to show that it has rights or legitimate interests in the disputed domain name in order to meet the requirements of paragraph 4(a)(ii) of the Policy. Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455.
The Panel finds that the Complainant has satisfied this requirement, while the Respondent has failed to file any evidence or convincing argument to demonstrate a right or legitimate interest in the disputed domain name according to the Policy, paragraph 4(a)(ii) and 4(c).
With its Complaint, the Complainant has provided uncontested prima facie evidence that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
In the absence of a Response, there is no indication in the current record that the Respondent is commonly known by the disputed domain name. The Respondent has also failed to demonstrate any of the other
non-exclusive circumstances evidencing rights or legitimate interests under the Policy, paragraph 4(c) or any other evidence of a right or legitimate interest in the disputed domain name. Also, the Panel does not see any indication in the record for assessing a bona fide offering of goods or services by the Respondent.
Consequently, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
The Panel is further convinced that the Respondent has registered and is using the disputed domain name in bad faith.
The Panel concludes that the disputed domain name is likely to confuse Internet users into believing that the disputed domain name is affiliated or endorsed by the Complainant or that the use of the disputed domain name is at least authorized by the Complainant. The Panel is of the opinion that the Respondent deliberately attempted to confuse Internet users in relation to the Complainant's CHATROULETTE trademark, apparently for illegitimate purposes.
The Panel is particularly convinced that the Respondent must have been well aware of the Complainant's CHATROULETTE trademark when it registered the disputed domain name. At the date of registration of the disputed domain name, the Complainant's trademark was already registered and recognized for many years.
Additionally, the Panel shares the Complainant's view that the Respondent apparently tries to free ride on the Complainant's popular online chat services by attracting Internet users to its own website, and soliciting personal information, possibly for some illegitimate activities. The disputed domain name also has resolved to websites displaying adult content.
Furthermore, the Panel finds that the Respondent's failure to respond to the substance of the Complaint further supports the conclusion that it has registered and is using the disputed domain name in bad faith.
The fact that the disputed domain name seems to be currently not actively used and is parked only, does not change the Panel's view in this respect.
All in all, the Panel concludes that the disputed domain name was registered and is being used in bad faith and that the Complainant consequently has satisfied the third element of the Policy, namely, 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, the Panel orders that the disputed domain name be transferred to the Complainant.
Kaya Köklü
Sole Panelist
Date: September 22, 2017
Full & Egal Universal Law Academy