Complainant is Fenix International Limited c/o Walters Law Group, United States of America (“United States”), represented by Walters Law Group, United States.
Respondent is Whois Privacy Protection Service, Inc., United States, / Wrenn Taylor, United States. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 4, 2021. On February 5, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 5, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name, which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on February 8, 2021, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amendment to the Complaint on February 10, 2021. The Center verified that the Complaint together with the amendment to 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 February 17, 2021. In accordance with the Rules, paragraph 5, the due date for Response was March 9, 2021. Respondent filed an informal Response with the Center on February 22, 2021. The Center sent Commencement of Panel Appointment Process on March 10, 2021. The Center appointed Phillip V. Marano as the sole panelist in this matter on March 16, 2021. 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 is the owner and operator of the Respondent registered the disputed domain name on December 18, 2020. At the time of this Complaint, the disputed domain name resolved to a website featuring Complainant’s ONLY FANS stylized design trademark, and advertising “[s]haring free access to the premium accounts with the best #OnlyFans hack link. While thousands of people pay for OnlyFans subscriptions, you can enjoy your daily dose of happiness with once-in-a-lifetime [sic] opportunity to access Free Unlimited Content!”. 5. Parties’ Contentions A. Complainant Complainant asserts ownership of the ONLY FANS trademark and has adduced evidence of trademark registrations in the United Kingdom and the United States, as well as evidence of common law trademark rights, with earliest priority dating back to July 4, 2016. The disputed domain name is confusingly similar to Complainant’s ONLY FANS trademark, according to Complainant, because it consists of Complainant’s exact ONLY FANS trademark with the addition of the words “free”, “leaked”, and “accounts”. Complainant further asserts that Respondent lacks any rights or legitimate interests in the disputed domain name based on: Respondent’s misappropriation of Complainant’s trademark and logo on Respondent’s website; Respondent’s use of the disputed domain name in connection with a website that phishes for user personal information; and the lack of any evidence that Respondent is known by the ONLY FANS trademark, particularly in light of Respondent’s hiding its identity behind a WhoIs privacy service. Complainant argues that Respondent has registered and used the disputed domain name in bad faith for numerous reasons, including: Complainant’s prior use of the ONLY FANS trademark four years earlier than Respondent registered the disputed domain name; Respondent hiding its identity behind a WhoIs privacy service; Respondent’s use of the disputed domain name in connection with content reproduced from Complainant’s website and a fraudulent application to access Complainant’s paywall protected services and content; Respondent’s use of the disputed domain name in connection with a website that phishes for user personal information; and Respondent’s failure to reply to Complainant’s cease and desist correspondence. B. Respondent Respondent submitted an informal email response asserting, “No idea what you guys are taking [sic] about, I see you complaining or whatever but about what? Doesn’t make sense .. I bought the domain fair and square :)” 6. Discussion and Findings To succeed in its Complaint, Complainant must establish in accordance with paragraph 4(a) of the Policy: i. The disputed domain name is identical or confusingly similar to a trademark 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 has been registered and is being used in bad faith. Although Respondent did not submit a formal Response to Complainant’s contentions, the burden remains with Complainant to establish by a balance of probabilities, or a preponderance of the evidence, all three elements of paragraph 4(a) of the Policy. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 4.3 (“A respondent’s default would not by itself mean that the complainant is deemed to have prevailed; a respondent’s default is not necessarily an admission that the complainant’s claims are true. UDRP panels have been prepared to draw certain inferences in light of the particular facts and circumstances of the case, e.g. where a particular conclusion is prima facie obvious, where an explanation by the respondent is called for but is not forthcoming, or where no other plausible conclusion is apparent.”); The Vanguard Group, Inc. v. Lorna Kang,WIPO Case No. D2002-1064 (“The Respondent’s default does not automatically result in a decision in favor of the complainant. The Complainant must still prove each of the three elements required by Policy paragraph 4(a)”). A. Identical or Confusingly Similar Ownership of a nationally or regionally registered trademark serves as prima facie evidence that Complainant has trademark rights for the purposes of standing to file this Complaint. WIPO Overview 3.0 , section 1.2.1 . Complainant submitted evidence that the ONLY FANS trademark has been registered the United States (where Respondent is located according to registration data submitted by Respondent, with priority dating back to July 7, 2016, nearly four years before the disputed domain name was registered by Respondent). Thus, the Panel finds that Complainant’s rights in the ONLY FANS trademark have been established pursuant to the first element of the Policy. The remaining question under the first element of the Policy is whether the disputed domain name is identical or confusingly similar to Complainant’s ONLY FANS trademark. In this Complaint, the disputed domain name is confusingly similar to Complainant’s ONLY FANS trademark because, disregarding the “.com” generic Top-Level Domain (“gTLD”), the trademark is contained in its entirety within the disputed domain name. WIPO Overview 3.0 , section 1.7 . (“This test typically involves a side-by-side comparison of the domain name and the textual components of the relevant trademark to assess whether the mark is recognizable within the domain name … [I]n cases where a domain name incorporates the entirety of a trademark, or where at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered confusingly similar...”). gTLDs, such as “.com” in the disputed domain name, are generally viewed as a standard registration requirement and are disregarded under the first element. WIPO Overview 3.0 , section 1.11 . This confusing similarity is not dispelled by combination with the prefix “free” and the suffixes “leaked” and “accounts”. Indeed, such terms merely describe the content on Respondent’s website, which as discussed below, is emblematic of Respondent’s bad faith attempts to create a likelihood of confusion with Complainant under the Policy. WIPO Overview, section 1.8 (Additional terms “whether descriptive, geographic, pejorative, meaningless, or otherwise” do not prevent a finding of confusing similarity where the relevant trademark is recognizable within the disputed domain name); see also AT&T Corp. v. WorldclassMedia.com, WIPO Case No. D2000-0553 (“Each of the domain names in dispute comprises a portion identical to [the ATT trademark] in which the Complainant has rights, together with a portion comprising a geographic qualifier, which is insufficient to prevent the composite domain name from being confusingly similar to Complainant’s [ATT trademark]”); OSRAM GmbH v. Cong Ty Co Phan Dau Tu Xay Dung Va Cong Nghe Viet Nam,WIPO Case No. D2017-1583 (“[T]he addition of the letters ‘hbg’ to the trademark OSRAM does not prevent a finding of confusing similarity between the Disputed Domain Name and the said trademark.”). In view of Complainant’s registration for the ONLY FANS trademark, and Respondent’s incorporation of that trademark in its entirety in the disputed domain name, the Panel concludes that Complainant has established the first element of the Policy. B. Rights or Legitimate Interests Complainant must make out a prima facie case that Respondent lacks rights or legitimate interests in the disputed domain name, shifting the burden of production on this element to Respondent to come forward with evidence demonstrating such rights or legitimate interests. Where, as in this Complaint, Respondent fails to come forward with any relevant evidence, Complainant is deemed to have satisfied the second element of the Policy. WIPO Overview , section 2.1. It is evident that Respondent, identified by registration data for the disputed domain name as “Wrenn Taylor”, is not commonly known by the disputed domain name (or Complainant’s ONLY FANS trademark). UDRP panels have categorically held that use of a domain name for illegal activity—including phishing for personal information and other types of fraud—can never confer rights or legitimate interests on a respondent. Circumstantial evidence can support a credible claim made by Complainant asserting Respondent is engaged in such illegal activity, including that Respondent has masked its identity to avoid being contactable, or that Respondent’s website has been suspended by its hosting provider. WIPO Overview 3.0 , section 2.13 . See e.g., Graybar Services Inc. v. Graybar Elec, Grayberinc Lawrenge,WIPO Case No. D2009-1017 (“Respondent has used the domain name to pretend that it is the Complainant and in particular to create false emails pretending that they are genuine emails coming from the Complainant and one of its senior executives”). See also The Commissioners for HM Revenue and Customs v. Name Redacted,WIPO Case No. D2017-0501 (“In addition, the disputed domain names … have had their web hosting suspended as a result of fraudulent activities. This is evidence of bad faith registration and use of the disputed domain names.”) Here, Complainant has adduced credible evidence that Respondent’s website makes fraudulent offers to visitors for free access to otherwise paywall-protected content on Complainant’s website as part of an illicit scheme to misappropriate visitor personal data. Complainant contends that Respondent has shielded its identity through a proxy registration service, and misappropriated Complainants stylized design trademarks, all in furtherance of this illicit scheme. Respondent’s informal email reply of February 22, 2021, does not attempt to deny these claims, but merely feigns ignorance and asserts “I bought the domain fair and square:)” In view of the absence of any evidence supporting any rights or legitimate interests in the disputed domain name, Respondent’s attempts to confuse Internet users and trade off the goodwill of the ONLY FANS trademark, Complainant’s credible argument that Respondent’s website merely phishes for sensitive financial data, and Respondent’s use of a proxy registration service to mask its identity, the Panel concludes that Complainant has established the second element of the Policy. C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy proscribes the following non-exhaustive circumstances as evidence of bad faith registration and use of the disputed domain name: i. Circumstances indicating that Respondent has registered or Respondent has acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the disputed domain name registration to Complainant who is the owner of the trademark to a competitor of that Complainant, for valuable consideration in excess of Respondent’s documented out of pocket costs directly related to the disputed domain name; or ii. Respondent has registered the disputed domain name in order to prevent the owner of the trademark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or iii. Respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or iv. By using the disputed domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other online location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location. Wrongful use of others' trademarks to extort information from unsuspecting and unwary people, by using the disputed domain name for phishing activity, is considered abusive registration of the disputed domain name under the Policy. See CareerBuilder, LLC v. Stephen Baker, WIPO Case No. D2005-0251; The Boots Company, PLC v. The programmer adviser, WIPO Case No. D2009-1383. See e.g., WSI Holdings Ltd. v. WSI House,WIPO Case No. D2004-1089 (“Respondent appears to be engaged in ‘phishing’ for mistaken potential employees of the Complainant … Respondent (1) has adopted a confusingly similar domain name, (2) it has used the trade dress of the Complainant’s website, and (3) it has sought to attract users to its site by creating confusion between its site and the Complainant’s. It has clearly engaged in activity which fulfils the bad faith requirements of Paragraph 4(b)(iv) of the Policy.”) See e.g., Go Daddy Operating Company, LLC v. Wu Yanmei, WIPO Case No. D2015-0177 (emails sent by the respondent from domain names using the complainant's trademark in an attempt to obtain complainant's customer information was held to be use of the disputed domain name for a phishing scheme and consequently bad faith under the Policy); AB Electrolux v. Piotr Pardo,WIPO Case No. D2017-0368 (engaging in fraudulent email phishing activities through unauthorized use of a trademark for obtaining data or deriving information is construed as bad faith under the Policy). Here, as discussed above, Respondent’s website clearly misappropriates Complainant’s trademark to lure in unsuspecting website visitors with promises of free access to otherwise paywall-protected content on Complainant’s website. Respondent has not attempted to defend its unauthorized use of Complainant’s ONLY FANS trademark on Respondent’s website, nor has it attempted to offer any legitimate interest in the personal data its website collects from visitors. In addition, where it appears that a respondent employs a privacy or proxy service merely to avoid being notified of a UDRP proceeding filed against it, UDRP panels tend to find that this supports an inference of bad faith. WIPO Overview 3.0 , section 3.6 . Use of a privacy or proxy registration service to shield a respondent’s identity and elude or frustrate enforcement efforts by a legitimate complainant demonstrates bad-faith use and registration of a disputed domain name. See Fifth Third Bancorp v. Secure Whois Information Service,WIPO Case No. D2006-0696 (the use of a proxy registration service to avoid disclosing the identity of the real party in interest is also consistent with an inference of bad faith when combined with other evidence of evasive, illegal, or irresponsible conduct). Based on Respondent’s website content and informal email reply, it is evident that they have no interest in answering bad faith allegations made against them, and in all likelihood, as the Panel sees it, the proxy registration service was intended to obfuscate enforcement efforts against Respondent. The Panel further concludes that failure by Respondent to answer Complainant’s cease and desist letter “suggests that Respondent was aware that it has no rights or legitimate interests in the disputed domain name, and that the disputed domain name has been registered and is being used in bad faith”. See America Online, Inc. v. Antonio R. Diaz,WIPO Case No. D2000-1460 (internal citations omitted). See also Spyros Michopoulos S.A. v. John Tolias, ToJo Enterprises,WIPO Case No. D2008-1003. Furthermore, the failure of Respondent to answer this Complaint or take any part in the present proceedings, in the view of the Panel, is another indication of bad faith on the part of Respondent. See Bayerische Motoren Werke AG v. (This Domain is For Sale) Joshuathan Investments, Inc.,WIPO Case No. D2002-0787. In view of Complainant’s credible argument that Respondent’s website merely phishes for sensitive financial data – which is also borne out by the composition of the disputed domain name bearing the “leaked accounts” verbiage, Respondent’s failure to respond to Complainant’s cease and desist correspondence or this Complaint, and Respondent’s use of a proxy registration service to mask its identity, the Panel concludes that Complainant has established 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, Phillip V. Marano
Sole Panelist
Date: March 30, 2021
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