Complainant is Bytedance Ltd., United Kingdom, represented by Suryomurcito & Co., Indonesia.
Respondents are Stanley Billy and Natasha Selly, Indonesia. 2. The Domain Names and Registrar
The disputed domain names The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 3, 2020. On July 6, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Names. On July 6, 2020, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Names, which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on July 7, 2020 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on July 12, 2020. The Center verified that the Complaint together with the amended 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 Respondents of the Complaint, and the proceedings commenced on July 15, 2020. In accordance with the Rules, paragraph 5, the due date for Response was August 4, 2020. Respondents did not submit any response. Accordingly, the Center notified Respondents’ default on August 5, 2020. The Center appointed Christopher S. Gibson as the sole panelist in this matter on August 17, 2020. 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, founded in 2012, is an Internet technology company operating a range of content platforms that inform, educate and entertain people across languages, cultures and geographies. Dedicated to building global platforms of creation and interaction, Complainant has developed a portfolio of applications available in over 150 markets and 75 languages. Complainant has over 60,000 employees, 15 research and development centers, and offices in 126 cities around the world. As of May 2020, Complainant is reportedly worth over USD 100 billion. Complainant developed the video-sharing mobile applications that launched the TikTok app in China in September 2016 (known as Douyin) and outside of China in May 2017. TikTok is a leading online destination for short videos and allows everyone to be a creator directly from their smartphones and share creative expression through videos. TikTok has offices including Jakarta, Los Angeles, New York, London, Paris, Berlin, Dubai, Mumbai, Singapore, Seoul, and Tokyo. TikTok operates in Asian countries such as Indonesia, Cambodia, Japan, Malaysia, Thailand and Vietnam. In September 2017, TikTok was launched in Indonesia and attracted social media creators and users from channels such as YouTube, Facebook, and Instagram to set up their accounts on the TikTok app. The number of followers of these accounts exceeds 2 million. TikTok is a leader in short video and has gained popularity around the world, including in Indonesia, as the following statistics indicate: - In 2018, TikTok had 110 million registered new users. - In 2018, TikTok had 667 million first time downloads worldwide. - In 2018, TikTok ranked as the 4th most downloaded non-game app of the year. - As of the 1st quarter 2019, TikTok was the most downloaded app on the Apple App Store, with 33 million downloads in a single quarter, exceeding YouTube, Instagram, WhatsApp, and Facebook Messenger. - TikTok has 800 million active users worldwide, making it the 9th largest social network, ahead of LinkedIn, Twitter, Pinterest and Snapchat. - TikTok was downloaded about 112 million times in May 2020 and became the most downloaded non-game app globally. Complainant registered the TIK TOK trademark in a number of countries and regions, including Japan, Mexico, Hong Kong, China, the United States, and Australia, as indicated in the following table: Mark Trademark Registration No. Jurisdiction Application Date Registration Date TIK TOK 6064328 Japan November 29, 2017 July 20, 2018 TIK TOK 1909943 Mexico April 23, 2018 August 7, 2018 TIK TOK 304569373 Hong Kong, China June 20, 2018 November 11, 2018 TIK TOK 2043045 Mexico April 23, 2018 September 27, 2019 TIK TOK 5653614 United States of America April 23, 2018.04.23 January 15, 2019 TIK TOK 1949117 Australia August 17, 2018 April 24, 2019 Complainant has registered the domain name The Domain Names were registered on August 8, 2018. The Domain Names resolve to websites containing gambling contents. 5. Parties’ Contentions A. Complainant (i) Identical or confusingly similar Complainant has registrations for the TIK TOK trademark in a number of countries and regions that predate the registration of the Domain Names. Complainant states that through continuous use and advertising, the TIK TOK trademark has gained popularity and fame worldwide. The TIK TOK trademark is exclusively associated with Complainant and known primarily as an identifier of Complainant’s Tik Tok product and services. Internet search results generated by the keyword “tiktok” all direct to Complainant and its Tik Tok app. Complainant asserts it is a well-established principle that the generic Top-Level Domain (“gTLD”) suffixes “.biz” and “.org” are a necessity for a domain name and should be disregarded in assessing the similarity between a domain name and a mark in which a complainant has rights. Hence, the distinctive part of the Domain Names is “tiktokbet”, which consists of Complainant’s TIK TOK trademark in its entirety and the word “bet”. Complainant contends that the addition of the word “bet” has little effect on a determination of confusing similarity and cannot differentiate the Domain Names from Complainant’s TIK TOK trademark. Furthermore, Complainant claims that incorporating Complainant’s well-known and distinctive TIK TOK trademark in its entirety in the Domain Names in itself establishes that they are confusingly similar to the TIK TOK mark. The Domain Names are therefore confusingly similar to Complainant’s TIK TOK trademark. (ii) Rights or legitimate interests Complainant states it is well established that the mere registration of a domain name is insufficient for claiming rights or legitimate interests so as to avoid the application of paragraph 4(a)(ii) of the Policy. Thus, Respondents do not have rights or legitimate interests in respect of the Domain Names merely because of the registration. Complainant states that Respondents are not sponsored by or affiliated with Complainant in any way. Complainant has never authorized or licensed Respondents to use the TIK TOK trademark in any manner, including registering domain names incorporating Complainant’s TIK TOK trademark. Further, Complainant contends that, in the present case, no plausible explanation exists as to indicate the possibility of any circumstances of the type specified in the Policy, or of any other circumstances giving rise to a right to or legitimate interests in the Domain Names. The Domain Names are under privacy protection, making it impossible that Respondents have been commonly known by the Domain Names. Complainant claims that the Domain Names currently resolve to websites containing contents concerning gambling, with an intention to gain commercial benefit through trading on the reputation of Complainant’s TIK TOK trademark. Such use of the Domain Names cannot be considered as a bona fide offering of goods or service or making a legitimate noncommercial or fair use under the Policy. To sum up, Complainant contends that Respondents have no rights or legitimate interests in respect of the Domain Names, and that it is well established that once a complainant establishes a prima facie case that a respondent lacks rights or legitimate interests in a domain name, the burden of production shifts to the respondent. (iii) Registered and Used in Bad faith (1) Respondents’ awareness of Complainant and its TIK TOK trademark suggests bad faith in registering the Domain Names. Complainant asserts that the TIK TOK trademark, through Complainant’s continuous and extensive use and advertising, has become well known worldwide, including in Indonesia where Respondents appear to operate the websites associated with the Domain Names. Given the high popularity of TikTok, Complainant finds it inconceivable that Respondents happened to register the Domain Names without actual notice of the TIK TOK trademark at the time of registration. Respondents had at least constructive notice of Complainant’s TIK TOK mark, as a simple Internet search on the date of the registration of the Domain Names would have revealed Complainant and its famous TIK TOK application and trademark. Complainant states that the website associated with the Domain Name Complainant claims that the choice of the Domain Names incorporating Complainant’s famous and distinctive trademark can in no way be the result of a mere coincidence, but suggests that Respondents acted with bad faith in registering the Domain Names to make illegitimate use of them. This amounts to opportunistic exploitation of inevitable Internet user confusion for Respondents’ own benefit. (2) Respondents have intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s TIK TOK trademark. Complainant states that the websites associated with the Domain Names offer gambling contents, such as lottery, online and live casino, and poker. By using the Domain Names, Respondents are trying to profit from the diversion of Internet users by confusion between the Domain Names and Complainant’s TIK TOK trademark. Complainant contends that Respondents’ purpose of registering the Domain Names is to trade on the fame of the well-known TIK TOK mark, to attract, for commercial gain, Internet users to visit the associated websites, by creating a likelihood of confusion with Complainant and the TIK TOK trademark. Respondents have traded on such confusion to direct traffic to their own sites and such use has caused de facto confusion and misidentification as to the affiliation with Complainant. (3) Respondents registered the Domain Names primarily for disrupting Complainant’s business. Complainant contends that Internet users who are not looking for a gambling website but instead looking for Complainant and its TikTok app are now being directed to Respondents’ websites and then exposed to Respondents’ gambling services, none of which has connection to Complainant or the TIK TOK trademark. Such viewer confusion resulting from the redirection injures Complainant, including tarnishing its TIK TOK mark and damaging Complainant’s reputation. Moreover, Complainant states that pursuant to Article 303 bis of the Indonesian Penal Code and Article 27(2), Chapter VII (Prohibited Actions) Law No. 11 of 2008 on Electronic Information and Transactions, any activities relating to gambling, including offering accessibility of the electronic information and/or the electronic document with gambling content, is illegal and strictly prohibited in Indonesia. Thus, Respondents’ acts, by their illegality, constitute bad faith under the Policy. In light of the above, Complainant urges that the Domain Names have been registered and are being used in bad faith by Respondents. B. Respondent Respondents did not reply to Complainant’s contentions. 6. Request for Consolidation Complainant contends that though the Respondents are differently named, it believes that each of the names for the registrant of the two Domain Names is an alias for a single person or entity, and the two Domain Names are subject to their joint control based upon the following reasons: (a) The same naming pattern is used for each of in the Domain Names, that is, the combination of the Complainant’s TIK TOK trademark with the word “bet”. (b) Both Domain Names are registered with the same registrar at the same time (on August 8, 2018). (c) Websites associated with the Domain Names are both offering gambling services related to TIKTOKBET. Both websites generate the same pop-up message window “LIVE CHAT TIKTOKBET”, from a Support Agent “Natalia Lie”, which is redirects visitors to TikTokBet at the same website with the same contact details. Complainant contends it is accordingly reasonable for Complainant to infer that the each of the names of the Respondents is an alias for a single person or entity and the Domain Names and associated websites are subject to common control. It is therefore appropriate in this case to allow a single proceeding under the Policy against multiple respondents. Section 4.11.2 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) states that “[w]here a complaint is filed against multiple respondents, panels look at whether (i) the domain names or corresponding websites are subject to common control, and (ii) the consolidation would be fair and equitable to all parties. Procedural efficiency would also underpin panel consideration of such a consolidation scenario.” Here, the Panel determines that, based on the information before in this case, it is highly likely that the Domain Names are under common control. Therefore, the consolidation of the proceedings against the named registrants is proper in the interests of fairness and efficiency. The Panel also observes that Respondent has not filed any response in this case to object to Complainant’s proposed consolidation request. 7. Discussion and Findings In order to succeed on its Complaint, Complainant must demonstrate that the three elements set forth in paragraph 4(a) of the Policy have been satisfied. These elements are that: (i) the Domain Names registered by Respondents are identical or confusingly similar to a trademark or service mark in which Complainant has rights; (ii) Respondents have no rights to or legitimate interests in respect of the Domain Names; and (iii) Respondents have registered and are using the Domain Names in bad faith. A. Identical or Confusingly Similar The Panel finds that Complainant has established rights in its TIK TOK trademarks, based on ownership of the trademarks’ registrations in numerous countries and use of the marks in commerce. Further, the Panel determines that the Domain Names are confusingly similar to the TIK TOK marks. Section 1.8 of the WIPO Overview 3.0 states in relevant part that “[w]here the relevant trademark is recognizable within the disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element.” Here, the Panel determines that the Domain Names are confusingly similar to Complainant’s TIK TOK trademarks. The Domain Names add the descriptive word “bet” to the mark, which does not prevent a finding of confusing similarity. See Valero Energy Corporation and Valero Marketing and Supply Company v. Valero Energy,WIPO Case No. D2017-0075. Moreover, incorporating Complainant’s well-known TIK TOK trademark in its entirety in the Domain Names supports a finding of confusing similarity. See Hoffmann-La Roche Inc. v. Wei-Chun Hsia,WIPO Case No. D2008-0923 (“wrapping a well-known mark with merely descriptive or generic words is a doomed recipe for escaping a conclusion that the domain name is confusingly similar to the well-known mark”). The use of the gTLDs “.biz” and “.org” does not alter this analysis. Accordingly, the Panel finds that that the Domain Names are confusingly similar to a trademark in which Complainant has rights, in accordance with paragraph 4(a)(i) of the Policy. Complainant has satisfied the first element of the Policy. B. Rights or Legitimate Interests Regarding the second element of the Policy, WIPO Overview 3.0, section 2.1, states that “where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element.” Here, Complainant has provided evidence to establish that it has registered trademark rights in its TIK TOK trademarks in a number of countries and that it has a large presence in the online social media market in Indonesia where Respondents are located. Moreover, Complainant has confirmed that it has not authorized or licensed the use of its TIK TOK trademarks to Respondents, nor are Respondents affiliated with or sponsored by Complainant. Complainant’s assertion that Respondents are not commonly known by the Domain Names appears to be correct. In addition, the Domain Names currently resolve to websites containing gambling contents, where it appears the intent is to gain commercial benefit by trading on the reputation of Complainant’s TIK TOK marks. Respondents’ use of the Domain Names in this manner does not give rise to any rights or legitimate interests in them. The Panel finds this use of the Domain Names is not a bona fide offering of goods or service or making a legitimate noncommercial or fair use under the Policy Accordingly, the Panel finds that Complainant has made a prima facie showing of Respondents’ lack of rights or legitimate interests in respect of the Domain Names, which has not been rebutted by Respondents. The Panel therefore finds that Complainant has established the second element of the Policy in accordance with paragraph 4(a)(ii). C. Registered and Used in Bad Faith The third element of paragraph 4(a) of the Policy requires that Complainant demonstrate that Respondents registered and are using the Domain Names in bad faith. WIPO Overview 3.0, section 3.1, states that “bad faith under the UDRP is broadly understood to occur where a respondent takes unfair advantage of or otherwise abuses a complainant’s mark”. Here, the Panel determines that the Domain Names were registered and are being used in bad faith. Based on the evidence, there is little doubt that Respondents were was aware of Complainant and its well-known TIK TOK mark, and intentionally targeted that mark, when registering the Domain Names. The Panel observes that Respondents registered the Domain Names, which incorporate Complainant’s distinctive TIK TOK trademark in its entirety, along with the descriptive word “bet”. Given the fame of the TIK TOK trademark and the fact that the Domain Names are so obviously connected with Complainant’s mark, the Panel considers that the only logical conclusion is that Respondents targeted Complainant and its TIK TOK marks when registering the Domain Names. Parfums Christian Dior v. Javier Garcia Quintas and Christiandior.net,WIPO Case No. D2000-0226 (where a domain name is “so obviously connected with such a well-known name and products, […] its very use by someone with no connection with the products suggests opportunistic bad faith”). This point is further confirmed by Respondents’ use of the Domain Names in connection with websites offering gambling content. In addition, the website associated with the Domain Name In conclusion, in this case, where Respondent failed to submit a reply to Complainant’s contentions, the Panel determines that, for all of the above reasons, the Domain Names were registered and are being used in bad faith. Accordingly, Complainant has satisfied the third element of the Policy 8. 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 Names, Christopher S. Gibson
Sole Panelist
Date: September 5, 2020
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