The Complainant is Take-Two Interactive Software, Inc., United States of America (“United States”), represented by Kelley Drye & Warren, LLP, United States.
The Respondent is Carolina Rodrigues, Fundacion Comercio Electronico, Panama. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 2, 2021. On April 6, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 6, 2021, the Registrar transmitted by email to the Center its verification 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 April 7, 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 8, 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 did not submit any response. Accordingly, the Center notified the Respondent’s default on April 30, 2021. The Center appointed Andrew F. Christie as the sole panelist in this matter on May 10, 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 is a leading publisher, developer, and distributor of interactive entertainment software and accessories, including video and computer games and a wide array of related goods and services, which are developed, marketed and sold to consumers throughout the world. The Complainant is the parent company of the video game publishing label Rockstar Games, Inc. (“Rockstar Games”). Rockstar Games is one of the best-recognized and most successful game developers in the world, with a Google search for the phrase “Rockstar Games” performed on March 3, 2021, resulting in 14,200,000 hits. Beginning in 1999, the Complainant, through its Rockstar Games subsidiary, has continuously and prominently used the Complainant’s ROCKSTAR trademarks to designate its entertainment software, computer and video games, and related products and services. The Complainant is the owner of many trademark registrations for the word trademarks ROCKSTAR and ROCKSTAR GAMES, including United States Registration No. 5639907 (registered on January 1, 2019) for the word trademark ROCKSTAR, and United States Trademark Registration No. 2456387 for the word trademark ROCKSTAR GAMES (registered on May 29, 2001). The disputed domain name was registered on February 5, 2021. The Complainant has provided a screenshot, dated March 15, 2021, showing that the disputed domain name resolved to a website containing pay-per-click links that direct to third party websites that are not associated with the Complainant and/or that purport to offer goods and services that are identical or confusingly similar to the Rockstar goods and services. 5. Parties’ Contentions A. Complainant The Complainant contends that the disputed domain name is confusingly similar to a trademark in which it has rights because: (i) it is a textbook example of typosquatting, consisting of a mere common, obvious, and/or intentional misspelling of the Complainant’s ROCKSTAR GAMES trademark; (ii) the Complainant has extensive and exclusive rights in the well-known and incontestable ROCKSTAR and ROCKSTAR GAMES trademarks throughout the world in connection with interactive entertainment software and related goods and services which predate the Respondent’s registration of the disputed domain name; (iii) the disputed domain name contains the entirety of the Complainant’s ROCKSTAR and ROCKSTAR GAMES trademarks, and is essentially identical visually and phonetically to such trademarks and the Complainant’s own domain name The Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain name because: (i) the disputed domain name is not the trade name or company name of the Respondent, and the Respondent is not commonly known by that name, is not a licensee of the Complainant, and is not otherwise authorized to use the Complainant’s ROCKSTAR and ROCKSTAR GAMES trademarks; (ii) the Respondent’s sole intention clearly was to benefit financially from, and/or unlawfully trade upon, the renown associated with the Complainant’s trademarks; (iii) given the renown and prior use by the Complainant of its trademarks for many years before the disputed domain name was registered, there can be no doubt that the Respondent was well aware of the Complainant’s rights in the ROCKSTAR and ROCKSTAR GAMES trademarks at the time it registered the disputed domain name, and that it did so for illegitimate purposes; and (iv) the use of the Complainant’s ROCKSTAR and ROCKSTAR GAMES trademarks in the disputed domain name does not bear any legitimate relationship to the Respondent’s business, but rather seeks to create a false association with the Complainant, and was clearly intended to attract visitors seeking the Complainant’s goods or services for the Respondent’s own commercial gain by increasing traffic and revenue to the disputed domain name, thereby allowing the Respondent to profit from the Complainant’s rights in its marks by redirecting visitors to monetized unaffiliated websites. The Complainant contends that the disputed domain name was registered and is being used in bad faith because: (i) given the fame, popularity and extensive and long-standing use of the Complainant’s ROCKSTAR and ROCKSTAR GAMES trademarks since as early as 1998, the Respondent was undoubtedly aware of the Complainant’s rights in the ROCKSTAR and ROCKSTAR GAMES trademarks at the time the disputed domain name was registered in February 2021; (ii) the Respondent uses other of the Complainant’s trademarks in the website resolving from the disputed domain name; (iii) the Respondent is intentionally attempting to attract visitors to its website by utilizing the Complainant’s ROCKSTAR and ROCKSTAR GAMES trademarks, only thereafter to redirect or refer users seeking legitimate information regarding the Complainant or its offerings to the websites of third parties unaffiliated with the Complainant’s trademarks; (iv) upon information and belief, the Respondent earns a commission or otherwise receives payment for redirecting to third party sites offering competing goods or displaying third party links, and/or from monetized purchases or illegal downloads of the Complainant’s goods from unaffiliated third party websites; and (v) the Respondent has an extensive history of adverse UDRP decisions predicated on the Respondent’s bad faith typosquatting, with approximately 20 Panels since January 1, 2021, ordering the transfer from the Respondent to various complainants of domain names incorporating the entirety or a slight misspelling of the complainant’s trademark and adding descriptive or generic terms thereto. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar Once the generic Top-Level Domain (“gTLD”) “.com” is ignored (which is appropriate in this case), the disputed domain name consists of the whole of the Complainant’s registered word trademark ROCKSTAR GAMES with the letter “g” replaced by the letter “c”. A typical Internet user either will not notice the letter substitution or will read the letter substitution as a misspelling of “games”. The misspelling does not prevent a finding of confusing similarity of the disputed domain name with the Complainant’s word trademark. As provided in section 1.9 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), a domain name which consists of a common, obvious, or intentional misspelling of a trademark is considered by panels to be confusingly similar to the relevant mark for purposes of the first element. Accordingly, the Panel finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights. B. Rights or Legitimate Interests The Respondent is not a licensee of, or otherwise affiliated with, the Complainant, and has not been authorized by the Complainant to use its ROCKSTAR GAMES word trademark. The Respondent has not provided any evidence that it has been commonly known by, or has made a bona fide use of, the disputed domain name, or that it has, for any other reason, rights or legitimate interests in the disputed domain name. The evidence provided by the Complainant shows that the disputed domain name was used to resolve to a website with pay-per-click links to third party websites for various goods and services. Given the confusing similarity of the disputed domain name to the Complainant’s trademark and the absence of any relationship between the Respondent and the Complainant, such a use of the disputed domain name is neither a bona fide use nor a legitimate noncommercial or fair use of the disputed domain name. The Complainant has put forward a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, and the Respondent has not rebutted this. Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith The disputed domain name was registered many years after the Complainant first registered its ROCKSTAR GAMES word trademark. It is inconceivable that the Respondent registered the disputed domain name ignorant of the existence of the Complainant’s ROCKSTAR GAMES trademark, given that the Complainant’s trademark has been heavily used and that the disputed domain name consists of the Complainant’s word trademark with the mere replacement of the letter “g” with the letter “c”. Furthermore, the evidence on the record provided by the Complainant indicates that the Respondent has used the disputed domain name to attract, for commercial gain, Internet users to a website by creating confusion in the minds of the public as to an association between the website and the Complainant. Accordingly, the Panel finds that the disputed domain name has been registered and is being used in bad faith. 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, Andrew F. Christie
Sole Panelist
Date: May 24, 2021
Full & Egal Universal Law Academy