The Complainant is Andrey Ternovskiy dba Chatroulette of Sliema, Malta, represented by CSC Digital Brand Services AB, Sweden.
The Respondent is Domain Administrator, Fundacion Privacy Services LTD of Panama City, Panama. 2. The Domain Name and Registrar
The disputed domain name (the "Disputed Domain Name") is registered with Media Elite Holdings Limited dba Register Matrix (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on May 3, 2018. On May 3, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On May 4, 2018, 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 May 11, 2018. In accordance with the Rules, paragraph 5, the due date for Response was May 31, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on June 1, 2018.
The Center appointed John Swinson as the sole panelist in this matter on June 8, 2018. 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 Andrey Ternovskiy dba Chatroulette. Chatroulette is an online chat website that pairs people from around the world together for real-time, webcam-based conversations. The Complainant created the Chatroulette service and website in November 2009. Chatroulette experienced strong growth after the website launch, receiving over 50,000 visitors per day by January 2010.
The Complainant holds a registered trade mark for CHATROULETTE in a number of jurisdictions including the Russian Federation, the European Union, Germany and the United States. See, for example, registration number 429957 filed on March 11, 2010 and registered on February 10, 2011 in the Russian Federation, and registration number 4445843 filed on January 10, 2011 and registered on December 10, 2013 in the United States ("the Trade Mark").
The Respondent is Domain Administrator, Fundacion Privacy Services Ltd of Panama City. No response was received therefore there is little information known about the Respondent. The Respondent is a privacy service, in the business of monetizing domain names. The Respondent registered the Disputed Domain Name on January 30, 2010. The website at the Disputed Domain Name currently features an assortment of pay-per-click ("PPC") links. 5. Parties' Contentions A. Complainant
The Complainant makes the following submissions. Identical or Confusingly Similar
The Complainant has registered trade marks for CHATROULETTE in various jurisdictions. The Disputed Domain Name varies from the Trade Mark by only one letter. The Respondent has removed the letter "a" and replaced it with the letter "s". The Disputed Domain Name is a purposeful misspelling of the Trade Mark and is therefore considered confusingly similar to the Trade Mark. This is a typical example of typosquatting, a deliberate misspelling of a trade mark registered as a domain name, which is intended to confuse Internet users. According to the WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0") at section 1.9 "a domain name which consists of common, obvious or intentional misspelling of a trade mark is considered by panels to be confusingly similar to the relevant mark for purposes of the first element". Rights or Legitimate Interests
The Complainant has registered trade mark rights and therefore has an exclusive right to use the Trade Mark in commerce. The Complainant has not given the Respondent permission to use the Trade Mark in any manner. The Complainant has not licensed, authorized or permitted the Respondent to register domain names incorporating the Trade Mark.
The Respondent is not commonly known by the Disputed Domain Name, which demonstrates a lack of rights or legitimate interests. The WhoIs information identifies the Registrant as "Domain Administrator, Fundacion Privacy Services LTD" which does not resemble the Disputed Domain Name in any manner. As the Respondent is not commonly known by the Disputed Domain Name it cannot be regarded as having acquired rights or legitimate interests in the Disputed Domain Name. At the time of filing of the Complaint the Respondent was using a privacy WhoIs service, which past UDRP panels have found to equate to a lack of legitimate interests.
The Respondent is using the Disputed Domain Name to redirect Internet users to a website featuring PPC links, some of which directly compete with the Complainant's business. Presumably, the Respondent receives fees from the linked websites, which demonstrates a lack of rights or legitimate interests. Registered and Used in Bad Faith
The Complainant registered its domain name on November 16, 2009 and established its Chatroulette service and website shortly after. This was prior to the Respondent's registration of the Disputed Domain Name on January 30, 2010.
At the time of the registration of the Disputed Domain Name, the Respondent knew, or at least should have known, of the existence of the Complainant's "www." website. Although the Complainant had no registered trade marks at the time the Respondent registered the Disputed Domain Name, the popularity of the site grew exponentially in a short space of time. By February 2010 the site had over 4 million Internet users and had attracted significant media attention.
If circumstances indicate that a respondent's intent in registering a disputed domain name was to profit in some way or otherwise exploit the complainant's trade mark, UDRP panels will typically find bad faith on the part of the respondent. Typosquatting itself has been taken as evidence of bad faith registration and use by past UDRP panels. In this case, the Disputed Domain Name has been intentionally designed to closely mimic the Complainant's Trade Mark and trade off the Complainant's reputation. The Respondent uses the Disputed Domain Name for PPC links to create revenue, which is further evidence of bad faith. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
To succeed, the Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied, namely:
(i) the Disputed Domain Name is identical or confusingly similar to a trade mark or service mark 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.
The onus of proving these elements remains on the Complainant even though the Respondent has not filed a Response. A. Procedural Issues
The Respondent's failure to file a Response does not automatically result in a decision in favor of the Complainant (see, e.g., Airbus SAS, Airbus Operations GmbH v. Alesini Pablo Hernan / PrivacyP,WIPO Case No. D2013-2059). However, the Panel may draw appropriate inferences from the Respondent's default. B. Identical or Confusingly Similar
Paragraph 4(a)(i) of the Policy provides that the Complainant must establish that the Disputed Domain Name is identical or confusingly similar to the Trade Mark.
The Disputed Domain Name is a misspelling of the Trade Mark as it differs from the Trade Mark only by one letter. The Respondent has changed the "a" to the adjacent letter on the keyboard "s". A domain name which consists of a common, obvious, or intentional misspelling of a trade mark is considered by UDRP panels to be confusingly similar to the relevant mark for purposes of the first element.
The Panel considers that the Disputed Domain Name is confusingly similar to the Trade Mark and that this is clear case of typosquatting. The Complainant succeeds on the first element of the Policy. C. Rights or Legitimate Interests
Paragraph 4(a)(ii) of the Policy provides that the Complainant must establish that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. The Complainant is required to make out a prima facie case showing that the Respondent lacks rights or legitimate interests.
The Panel considers the Complainant has made out a prima facie case. This finding is based on the following:
- The Respondent has not used, or made demonstrable preparations to use, the Disputed Domain Name in connection with a bona fide offering of goods or services. The website at the Disputed Domain Name features a PPC link page. These links relate to online web chat services, dating services and gaming sites, including the Complainant's competitors. In the circumstances, this is not a bona fide use of the Disputed Domain Name under the Policy.
- The Panel accepts the Complainant's submission that the Complainant has not authorized or otherwise given the Respondent permission to use the Disputed Domain Name.
- There is no evidence that the Respondent has been commonly known by the Disputed Domain Name, or has registered or common law trade mark rights in relation to this name.
- The Respondent has not been making a legitimate noncommercial or fair use of the Disputed Domain Name without intent for commercial gain. It is likely that the Respondent is receiving click-through revenue from the PPC links on the website at the Disputed Domain Name.
- As previous UDRP panels have found, typosquatting does not constitute a legitimate use of the Disputed Domain Name (see, e.g., E, Inc. v. Yingkun Guo, dba This domain is 4 sale,WIPO Case No. D2006-0694; Barnes & Noble College Bookstores, Inc. v. Oleg Techino,WIPO Case No. D2006-1537).
The Respondent had the opportunity to demonstrate its rights or legitimate interests, but did not do so. As such, the prima facie case established by the Complainant has not been rebutted and the Complainant succeeds on the second element of the Policy. D. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy provides that the Complainant must establish that the Respondent registered and subsequently used the Disputed Domain Name in bad faith.
The Complainant concedes that the Respondent registered the Disputed Domain Name prior to the Complainant registering the Trade Mark. Where a respondent registers a domain name before the complainant's trade mark rights accrue, UDRP panels will not normally find bad faith on the part of the respondent. However, in certain limited circumstances where the facts of the case establish that the respondent's intent in registering the domain name was to unfairly capitalize on the complainant's nascent (typically as yet unregistered) trade mark rights, UDRP panels have been prepared to find that the respondent has acted in bad faith. This may include where there has been significant media attention (see WIPO Overview 3.0, section 3.8).
In this case, the Complainant has provided evidence that at the time of the registration of the Disputed Domain Name, the "www." website had already attracted significant media attention, as well as a rapid growth in Internet traffic. By February 2010 "www." had already attracted 4 million users. As such, the Panel considers that the Complainant had common law trade mark rights in CHATROULETTE when the Disputed Domain Name was registered. It is also highly likely that the Respondent knew of the Complainant's trade mark when registering the Disputed Domain Name.
Previous UDRP panels have also found that if a respondent has engaged in typosquatting, that may be sufficient to establish registration and use in bad faith (Barnes & Noble College Bookstores, Inc. v. Oleg Techino,WIPO Case No. D2006-1537; E, Inc. v. Yingkun Guo, dba This domain is 4 sale,WIPO Case No. D2006-0694; Sephora v. WhoisGuard,WIPO Case No. D2006-0845).
This is a clear case of typosquatting having regard to the minor difference between the Disputed Domain Name and the Trade Mark. In the circumstances, the Panel considers it likely that the Respondent registered the Disputed Domain Name, as a misspelling of the Trade Mark, to trade off the Complainant's reputation. By using the Disputed Domain Name in connection with a PPC page, the Panel finds that the Respondent is intentionally attempting to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant's Trade Mark.
The Panel finds that this constitutes bad faith registration and use under paragraph 4(b)(iv) of the Policy. The Complainant succeeds on the third element 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.
John Swinson
Sole Panelist
Date: June 26, 2018
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