Complainant is Andrey Ternovskiy dba Chatroulette, of Sliema SLM, Malta, represented by CSC Digital Brand Services AB, Sweden.
Respondent is Domain Admin, Whois Privacy Corp., Ocean Centre, Montagu Foreshore, East Bay Street, Nassau, New Providence, Bahamas. 2. The Domain Name and Registrar
The disputed domain name is registered with Internet Domain Service BS Corp (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 8, 2018. On October 8, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 9, 2018, 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 October 18, 2018. In accordance with the Rules, paragraph 5, the due date for Response was November 7, 2018. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on November 8, 2018.
The Center appointed Georges Nahitchevansky as the sole panelist in this matter on November 20, 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
Complainant, Andrey Ternovskiy d/b/a Chatroulette, is the creator and owner of an online chat website by the name of Chatroulette that pairs random people from around the world together for real-time, webcam-based conversations. Complainant created the Chatroulette website and service in 2009. Complainant is the owner of several trademark registrations for the CHATROULETTE mark in connection with Complainant’s services, including, inter alia, in the European Union (Registration No. 008944076), which issued on December 4, 2012; the United States of America (Registration No. 4445843), which was filed on January 10, 2011 and issued December 10, 2013; Switzerland (Registration No. 600401), which issued on May 14,2010; and Germany (Registration No. 302010003706), which issued on February 21, 2013. Complainant has owned and used the domain name as its primary domain name for its website since November 2009.
Respondent’s true identity is unknown. The disputed domain was first created on February 17, 2010, but it appears to have been acquired by Respondent in or about April 2013. Respondent has used the disputed domain name with a web page with links to offerings to games, online services and/or other products and services. Currently the disputed domain name resolves to various third party websites on a rotating basis.
On September 3, 2018, Complainant’s representative sent Respondent a demand letter regarding Respondent’s activities related to the disputed domain name. A subsequent demand letter was sent to Respondent on September 10, 2018. Respondent did not respond to either letter. 5. Parties’ Contentions A. Complainant
Complainant contends that he is the exclusive owner of all rights in the CHATROULETTE mark, which he adopted and has been using since 2009 in connection with Complainant’s online chat website. Complainant maintains that the Chatroulette service has become well known on account of its popularity and high-profile reputation internationally with fans, the media and competitors, and that as a result it is one of the most popular video chat sites in the world.
Complainant argues that the disputed domain name is confusingly similar to Complainant’s CHATROULETTE mark as it merely consists of an intentional misspelling of CHATROULETTE by replacing the letter “l” with the letter “i,” which creates the same visual impression with the CHATROULETTE mark.
Complainant argues that Respondent has no rights or legitimate interests in the disputed domain name as Respondent (i) is not commonly known by the disputed domain name, (ii) has obtained no authorization or license from Complainant to register and use a domain name based on Complainant’s CHATROULETTE mark, (iii) acquired the disputed domain name well after Complainant had registered and started using the domain name in 2009 for his online chat services, and (iv) has not made a bona fide use of the disputed domain name, as Respondent has only used the disputed domain name for profit by redirecting web users to a website featuring links to third party offerings and/or to third party websites.
Lastly, Complainant contends that Respondent has registered and is using the disputed domain name in bad faith as Respondent (i) has knowingly created a confusingly similar domain name for purposes of attracting and redirecting web users to a web page with links to third party websites, (ii) has offered to sell the disputed domain name for a price well in excess of Respondent’s registration costs, and (iii) has ignored Complainant’s attempts to resolve the matter by failing to respond to Complainant’s demand letters. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
Under paragraph 4(a) of the Policy, to succeed Complainant must satisfy the Panel that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name was registered and is being used in bad faith.
Here, although Respondent has failed to respond to the Complaint, the default does not automatically result in a decision in favor of Complainant, nor is it an admission that Complainant’s claims are true. The burden remains with Complainant to establish the three elements of paragraph 4(a) of the Policy by a preponderance of the evidence. A panel, however, may draw appropriate inferences from a respondent’s default in light of the particular facts and circumstances of the case, such as regarding factual allegations that are not inherently implausible as being true. See section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”); see also The Knot, Inc. v. In Knot We Trust LTD,WIPO Case No. D2006-0340. A. Identical or Confusingly Similar
Ownership of a trademark registration is generally sufficient evidence that a complainant has the requisite rights in a mark for purposes of paragraph 4(a)(i) of the Policy. WIPO Overview 3.0 at section 1.2.1. Complainant has provided evidence that he owns and obtained trademark registrations for the CHATROULETTE mark in multiple jurisdictions prior to the date that Respondent acquired the disputed domain name.
With Complainant’s rights in CHATROULETTE mark established, the remaining question under the first element of the Policy is whether the disputed domain name (typically disregarding the generic Top-Level Domain (“gTLD”) such as “.com”) is identical or confusingly similar with Complainant’s mark. See B & H Foto & Electronics Corp. v. Domains by Proxy, Inc. / Joseph Gross,WIPO Case No. D2010-0842. The threshold for satisfying this first element is low and generally panels have found that fully incorporating the identical mark in a disputed domain name is sufficient to meet the threshold.
In the instant proceeding, the disputed domain name is confusingly similar to Complainant’s CHATROULETTE mark as the disputed domain name is merely a typo version or misspelling of the CHATROULETTE mark that replaces the letter “l” with the letter “i,” which can easily be seen as being a lower case “l.” The Panel therefore finds that Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy in establishing its rights in Complainant’s CHATROULETTE mark and in showing that the disputed domain name is identical or confusingly similar to that trademark. B. Rights or Legitimate Interests
Under paragraph 4(a)(ii) of the Policy, the complainant must make at least a prima facie showing that the respondent possesses no rights or legitimate interests in a disputed domain name. Malayan Banking Berhad v. Beauty, Success & Truth International,WIPO Case No. D2008-1393. Once the complainant makes such a prima facie showing, the burden of production shifts to the respondent, though the burden of proof always remains on the complainant. If the respondent fails to come forward with evidence showing rights or legitimate interests, the complainant will have sustained its burden under the second element of the UDRP.
Based on the evidence submitted in this proceeding, and Respondent’s failure to file a response, the Panel concludes that Respondent lacks rights or legitimate interests in the disputed domain name. Since acquiring the disputed domain name, which was on a date well after Complainant had secured rights and notoriety in the CHATROULETTE mark, Respondent has used the disputed domain name for profit by attracting and redirecting web users to either a web page with links to third party offerings or to a rotating series of third party websites. Such use of the disputed domain name, which is based on nothing more than a misspelling of the CHATROULETTE mark, does not constitute a legitimate use and is opportunistic. This is particularly so as the disputed domain is visually similar to the CHATROULETTE mark in overall appearance and is likely to be mistakenly seen by consumers as related to Complainant and the Chatroulette service.
Given that Complainant has established with sufficient evidence that it owns rights in the CHATROULETTE mark, and given Respondent’s above noted actions and failure to file a response, the Panel concludes that Respondent does not have a right or legitimate interest in the disputed domain name and that none of the circumstances of paragraph 4(c) of the Policy are evident in this case. C. Registered and Used in Bad Faith
In view of Respondent’s actions, and failure to appear in this proceeding, it is easy to infer that Respondent’s registration and use of the disputed domain name, which is merely a typo version of Complainant’s CHATROULETTE mark, has been done opportunistically and in bad faith for purposes of redirecting web users to a website with links to third party offerings or to a rotating series of third party websites. Respondent acquired the disputed domain name after Complainant had established rights in the CHATROULETTE mark in connection with its online chat website, and after Complainant had obtained trademark registrations for the CHATROULETTE mark in connection with it services. Given that Respondent expressly registered a typo version of the CHATROULETTE mark for purposes of capturing web traffic that might otherwise be looking for Complainant, it appears more probable than not that Respondent was fully aware of Complainant and its CHATROULETTE service and mark when Respondent registered the disputed domain name. As such, Respondent’s actions were in bad faith and knowingly meant to take advantage of the goodwill associated with Complainant’s CHATROULETTE mark.
Additionally, the fact that Respondent failed to respond to two demand letters sent by Complainant’s representative regarding the registration and use of the disputed domain name, and thereafter continued using the disputed domain name to profit from web traffic redirect through the disputed domain name further underscores Respondent’s bad faith in this matter.
The Panel thus finds that Complainant succeeds under this 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 Complainant.
Georges Nahitchevansky
Sole Panelist
Date: December 3, 2018
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