The Complainant is AMA Multimedia, LLC (“AMA”), United States of America (“United States” or “U.S.”), represented by Randazza Legal Group, United States.
The Respondent is Withheld for Privacy Purposes, Privacy service provided by Withheld for Privacy ehf, Iceland / PASCAL lAURENT DEMMERLE, Benin. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 29, 2021. On March 30, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 31, 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 March 31, 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 amended Complaint on April 2, 2021. 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 the Respondent of the Complaint, and the proceedings commenced on April 9, 2021. In accordance with the Rules, paragraph 5, the due date for Response was April 29, 2021. The Respondent sent an informal email communication on April 9, 2021. The Respondent did not submit any formal response. Accordingly, the Center notified the Respondent’s default on April 30, 2021. The Center appointed Edoardo Fano as the sole panelist in this matter on May 6, 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. Having reviewed the communication records in the case file provided by the Center, the Panel finds that the Center has discharged its responsibility under the Rules, paragraph 2(a), “to employ reasonably available means calculated to achieve actual notice to the Respondent”. Therefore, the Panel shall issue its Decision based upon the Complaint, the Policy, the Rules and the Supplemental Rules and without the benefit of a formal response from the Respondent. The language of the proceeding is English, being the language of the Registration Agreement, as per paragraph 11(a) of the Rules. 4. Factual Background The Complainant is AMA Multimedia, LLC, a U.S. company providing online adult entertainment services and owning the following two trademark registrations for PORNPROS: - United States Trademark Registration No. 3,566,875 for PORNPROS, registered on January 27, 2009; - United States Trademark Registration No. 4,081,017 for PORNPROS, registered on January 3, 2012. The Complainant operates on the Internet on its website “www.pornpros.com”. The Complainant provided evidence in support of the above. According to the WhoIs records, the disputed domain name was registered on September 23, 2020, and the website at the disputed domain name is providing online adult entertainment services, by reproducing the Complainant’s trademark and logo. 5. Parties’ Contentions A. Complainant The Complainant states that the disputed domain name Moreover, the Complainant asserts that the Respondent has no rights or legitimate interests in respect of the disputed domain name since it is not commonly known by the disputed domain name and it is not making either a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name. The Complainant submits that the Respondent has registered the disputed domain name in bad faith, since the website at the disputed domain name offers the same services as the Complainant and reproduces the same logo and layout of the Complainant’s website. Therefore, the Respondent targeted the Complainant’s trademark at the time of registration of the disputed domain name and the Complainant contends that the use of the disputed domain name to intentionally attract, for commercial gain, Internet users by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation and/or endorsement of the Respondent’s associated website disrupts the Complainant’s business and qualifies as bad faith registration and use. B. Respondent The Respondent has made no formal reply to the Complainant’s contentions and is in default. In reference to paragraphs 5(f) and 14 of the Rules, no exceptional circumstances explaining the default have been put forward or are apparent from the record. A respondent is not obliged to participate in a proceeding under the Policy, but if it fails to do so, reasonable facts asserted by a complainant may be taken as true, and appropriate inferences, in accordance with paragraph 14(b) of the Rules, may be drawn (see, e.g., Reuters Limited v. Global Net 2000, Inc.,WIPO Case No. D2000-0441; Microsoft Corporation v. Freak Films Oy,WIPO Case No. D2003-0109; SSL INTERNATIONAL PLC v. MARK FREEMAN,WIPO Case No. D2000-1080; ALTAVISTA COMPANY v. GRANDTOTAL FINANCES LIMITED et. al.,WIPO Case No. D2000-0848; Confédération Nationale du Crédit Mutuel, Caisse Fédérale du Crédit Mutuel Nord Europe v. Marketing Total S.A.,WIPO Case No. D2007-0288). However, the Respondent submitted an informal email communication on April 9, 2021, in French and English, stating the following: “Bonjour cher client. Paragraph 4(a) of the Policy lists three elements, which the Complainant must satisfy in order to succeed: (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 finds that the Complainant is the owner of the trademark PORNPROS and that the disputed domain name Regarding the addition of the country name “france”, the Panel notes that it is now well established that the addition of descriptive terms or letters to a domain name does not prevent a finding of confusing similarity between the disputed domain name and the trademark (see, e.g., Aventis Pharma SA., Aventis Pharma Deutschland GmbH v. Jonathan Valicenti,WIPO Case No. D2005-0037; Red Bull GmbH v. Chai Larbthanasub,WIPO Case No. D2003-0709; America Online, Inc. v. Dolphin@Heart,WIPO Case No. D2000-0713). The addition of the term “france” does not therefore prevent the disputed domain name from being confusingly similar to the Complainant’s trademark. It is also well accepted that a generic Top-Level Domain (“gTLD”), in this case “.com”, may be ignored when assessing the similarity between a trademark and a domain name (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.11). The Panel finds that the Complainant has therefore met its burden of proving that the disputed domain name is confusingly similar to the Complainant’s trademark, pursuant to the Policy, paragraph 4(a)(i). B. Rights or Legitimate Interests The Respondent has failed to file a response in accordance with the Rules, paragraph 5. The Complainant in its Complaint, and as set out above, has established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. It asserts that the Respondent, who is not associated with the Complainant in any way, is not using the disputed domain name for a legitimate noncommercial or fair use or in connection with a bona fide offering of goods or services. The prima facie case presented by the Complainant is enough to shift the burden of production to the Respondent to demonstrate that it has rights or legitimate interests in the disputed domain name. However, the Respondent has not presented any evidence of any rights or legitimate interests it may have in the disputed domain name, and the Panel is unable to establish any such rights or legitimate interests on the basis of the evidence in front of it. Moreover, the Panel finds that the composition of the disputed domain name carries a risk of implied affiliation. See WIPO Overview 3.0, section 2.5.1. The Panel therefore finds that paragraph 4(a)(ii) of the Policy has been satisfied. C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy provides that “[…] for the purposes of paragraph 4(a)(iii) of the Policy, the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith: (i) circumstances indicating that [the Respondent has] registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of the Complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the domain name; or (ii) that [the Respondent has] registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that [the Respondent has] engaged in a pattern of such conduct; or (iii) that [the Respondent has] registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) that by using the domain name, [the Respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the Respondent’s] website or other online location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [the Respondent’s] website or location or of a product or service on [the Respondent’s] website or location”. Regarding the registration in bad faith of the disputed domain name, the Panel finds that the Respondent likely knew of the Complainant’s registered trademark PORNPROS and deliberately registered the disputed domain name, The Panel further notes that the disputed domain name is also used in bad faith since on the relevant website the Complainant’s PORNPROS trademark and logo are displayed in an attempt to pass off as the Complainant. The above suggests to the Panel that the Respondent intentionally registered and is using the disputed domain name in order to create confusion with the Complainant’s trademark and attract, for commercial gain, Internet users to its website in accordance with paragraph 4(b)(iv) of the Policy. The Panel finds that the Complainant has presented evidence to satisfy its burden of proof with respect to the issue of whether the Respondent has registered and is using the disputed domain name in bad faith. The Panel therefore finds that paragraph 4(a)(iii) of the Policy has been satisfied. 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 Edoardo Fano
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thank you”. 6. Discussion and Findings
Sole Panelist
Date: May 8, 2021
Full & Egal Universal Law Academy