The Complainant is Fenix International Limited c/o Walters Law Group, United States of America (“United States”), represented by Walters Law Group, United States.
The Respondent is Kenneth Condez, chatter, Philippines. 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 5, 2021. On February 8, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 9, 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 the Complainant on February 10, 2021 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on February 11, 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 the Respondent of the Complaint, and the proceedings commenced on February 15, 2021. In accordance with the Rules, paragraph 5, the due date for Response was March 7, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 9, 2021. The Center appointed George R. F. Souter as the sole panelist in this matter on March 15, 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 The Complainant owns and has operated for several years the website “www.onlyfans.com”, an online tool for YouTubers, fitness trainers, models, content creators, public figures and influencers, whereby users pay a small fee to see exclusive content and live streaming from their followers. The website is popular worldwide and according to Alexa Internet, it is the 1059th most popular website on the World Wide Web, and it is the 335th most popular website in the United States as of 2020. The Complainant owns several trademark registrations in the United States Patent and Trademark Office (“USPTO”), for example: ONLYFANS, United States Registration No. 5769267, registered on June 4, 2019, and ONLYFANS.COM, United States Registration No. 5769268, registered on June 4, 2019. The disputed domain name was registered on December 19, 2020 and resolved to a website offering pornographic content. At the time of this decision, the website in relation to the disputed domain name hosts a pay-per-click (“PPC”) advertising page. 5. Parties’ Contentions A. Complainant The Complainant alleges that the disputed domain name is confusingly similar to its ONLYFANS trademark, containing the ONLYFANS trademark in its entirety, together only with the descriptive or non distinctive element “live”. The Complainant alleges that the Respondent lacks rights or legitimate interests in the disputed domain name, in particular that it has never granted permission to the Respondent to use its ONLYFANS trademark in connection with registration of a domain name, or otherwise. The Complainant alleges that the disputed domain name was registered in bad faith, and is being used in bad faith in connection with a website offering pornographic content, which disrupts the Complainant's business, and damages its brand image. B. Respondent The Respondent did not respond to the Complaint. 6. Discussion and Findings Paragraph 4(a) of the Policy lists three elements that the Complainant must prove to merit a finding that the disputed domain name be transferred to the Complainant: (i) the disputed domain name is identical or confusingly similar to a trademark 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. A. Identical or Confusingly Similar The Panel is satisfied from the information provided that the Complainant has sufficient rights in its ONLYFANS trademark for the purposes of these proceedings, and that the ONLYFANS trademark enjoys furthermore considerable common law rights arising from trading for the purposes of these proceedings. It is well-established in prior decisions under the UDRP, with which the Panel agrees, that a generic Top-Level Domain (“gTLD”) is irrelevant when comparing a trademark with a disputed domain name. Accordingly, the Panel considers the gTLD “.net” to be irrelevant in the circumstances of the present case, and so finds. It is well-established in prior decisions under the Policy that the mere addition of a descriptive or non distinctive element to a clearly recognizable trademark is insufficient to avoid a finding of confusing similarity. In the circumstances of the present case, the Complainant’s ONLYFANS trademark is instantly recognizable in the disputed domain name, and the mere addition of the word “live”, which, in the Panel's opinion, is, in the field of commerce involved in this case, clearly a descriptive or non distinctive element, is, in the Panel's opinion, insufficient to avoid a finding of confusing similarity, and the Panel so finds. Accordingly, the Panel finds that the Complainant has satisfied the requirement of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests It is the consensus view of UDRP panels, with which the Panel agrees, that a prima facie case advanced by the complainant will generally be sufficient for the complainant to be deemed to have satisfied the requirement of paragraph 4(a)(ii) of the Policy, provided the respondent does not come forward with evidence demonstrating rights or legitimate interests in the domain name and the complainant has presented a sufficient prima facie case to succeed under paragraph 4(a)(ii) of the Policy. The Panel considers the submissions put forward by the Complainant as sufficient to be regarded as a prima facie case, and the Respondent did not take the opportunity to advance any claim of rights or legitimate interests in the disputed domain name to rebut this prima facie case. Accordingly, 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 of the view that the finding that a respondent has no rights or legitimate interests in a disputed domain name can lead, in appropriate circumstances, to a finding of registration of a disputed domain name in bad faith. The circumstance of the present case, in which the Panel regards it as self-evident that the Complainant’s ONLYFANS trademark was deliberately appropriated in the disputed domain name, are such that the Panel concludes that a finding of registration in bad faith is justified. Accordingly, the Panel finds that the disputed domain name is being used in bad faith. It is well-established in prior decisions under the Policy that the use of a disputed domain name in circumstances which would be likely to damage the reputation of a complainant’s trademark constitutes use in bad faith. In the circumstances of the present case, the Panel considers that the Complainant’s concerns as to disruption of its business and damage to its brand image by the use of the disputed domain name are entirely legitimate, and finds that the disputed domain name is being used in bad faith. Accordingly, the Panel finds that the Complainant has satisfied the requirements of 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 George R. F. Souter
Sole Panelist
Date: March 29, 2021
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