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 Marouan Elmarchoum, Marouan, Morocco. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 21, 2021. On the same day, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On the same day, 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 May 26, 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 June 1, 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 June 3, 2021. In accordance with the Rules, paragraph 5, the due date for Response was June 23, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 6, 2021. The Center appointed Matthew Kennedy as the sole panelist in this matter on July 9, 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 operates the OnlyFans social media platform at “www.onlyfans.com” where users can post and subscribe to view audiovisual content. The Complainant registered the domain name - European Union trademark registration number 017912377, registered on January 9, 2019, specifying goods and services in classes 9, 35, 38, 41 and 42; and - United States trademark registration number 5,769,267, registered on June 4, 2019, with a claim of first use in commerce on April 7, 2016, specifying services in class 35. The above trademark registrations remain current. According to evidence provided by the Complainant, Alexa Internet rated the Complainant’s OnlyFans social media platform among the 500 websites with the most global Internet traffic and engagement during a 90-day period ending on May 20, 2021. The Respondent is an individual resident in Morocco. The disputed domain name was registered on January 2, 2021. It formerly resolved to a webpage in English offering a so-called “Official WhatsApp Spy Tool”. Visitors to the site were invited to enter a WhatsApp user’s phone number in order to spy on that user’s texts, images and videos, allegedly for free, and then to click a “connect” button. At the time of this Decision, the disputed domain name does not resolve to any active website. The Registrar confirmed that the Registration Agreement is in English. 5. Parties’ Contentions A. Complainant The disputed domain name is confusingly similar to the Complainant’s ONLYFANS mark. The disputed domain name consists of that exact mark with the addition of the descriptive word “plus” after a hyphen. The Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent is not a licensee of the Complainant nor is the Respondent otherwise authorized to use the Complainant’s ONLYFANS marks for any purpose. On information and belief, the Respondent is not commonly known by the disputed domain name. The Respondent is using an identical or confusingly similar domain name to redirect Internet users to a website offering illegal services for commercial gain. The disputed domain name was registered and is being used in bad faith. The Complainant had been using its marks for more than four years before the Respondent registered the disputed domain name. The Complainant had both registered rights in the marks and common law rights that had acquired distinctiveness by that date. The disputed domain name directs to a website that purports to provide a spy tool, which constitutes bad faith use. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 4(a) of the Policy provides that the Complainant must prove each of the following elements: (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 Based on the evidence submitted, the Panel finds that the Complainant has rights in the ONLYFANS mark. The disputed domain name wholly incorporates the ONLYFANS mark as its initial element. It adds the element “-plus”, consisting of a hyphen and the dictionary word “plus”. Given that the mark remains recognizable within the disputed domain name, the Panel does not consider that the addition of this dictionary word prevents a finding of confusing similarity. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.8. The disputed domain name includes a generic Top-Level Domain (“gTLD”) suffix (“.site”), which is a technical requirement of domain name registration. A gTLD suffix is normally disregarded in the comparison between a disputed domain name and a trademark for the purposes of the first element of the Policy. Therefore, the Panel finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights. The Complainant has satisfied the first element in paragraph 4(a) of the Policy. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy sets out the following circumstances which, without limitation, if found by the panel, shall demonstrate that the respondent has rights to, or legitimate interests in, a disputed domain name, for the purposes of paragraph 4(a)(ii) of the Policy: (i) before any notice to [the respondent] of the dispute, [the respondent’s] use of, or demonstrable preparations to use, the [disputed] domain name or a name corresponding to the [disputed] domain name in connection with a bona fide offering of goods or services; or (ii) [the respondent] (as an individual, business, or other organization) [has] been commonly known by the [disputed] domain name, even if [the respondent has] acquired no trademark or service mark rights; or (iii) [the respondent is] making a legitimate noncommercial or fair use of the [disputed] domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue. As regards the first and third circumstances set out above, the disputed domain name, which wholly incorporates the Complainant’s ONLYFANS trademark, formerly resolved to a webpage offering a tool to spy on WhatsApp messages. The Complainant submits that the Respondent is not a licensee of the Complainant nor otherwise authorized to use the Complainant’s ONLYFANS trademark. The website claimed that the tool was an “official” WhatsApp tool, which was patently false. The website also claimed that the tool allowed unauthorized access to (i.e., hacking of) private messages. The evidence on record does not show whether the tool actually hacked accounts, as claimed, or whether it simply extracted information about WhatsApp user numbers, most likely as part of a scam. Either way, use of the disputed domain name in connection with hacking or scamming activities cannot ever confer legitimate rights or interests on a respondent. See WIPO Overview 3.0, section 2.13.1. At the time of this Decision, the disputed domain name is passively held. In view of these circumstances, the Panel does not consider any of these uses of the disputed domain name to be in connection with a bona fide offering of goods or services within the terms of paragraph 4(c)(i) of the Policy. Nor is the Respondent making a legitimate noncommercial or fair use of the disputed domain name within the terms of paragraph 4(c)(iii) of the Policy. As regards the second circumstance, the Respondent’s name is listed in the Registrar’s WhoIs database as “Marouan Elmarchoum, Marouan”. There is no evidence indicating that the Respondent has been commonly known by the disputed domain name as envisaged by paragraph 4(c)(ii) of the Policy. In summary, the Panel considers that the Complainant has made a prima facie case that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent failed to rebut that prima facie case because he did not respond to the Complaint. Therefore, based on the record of this proceeding, the Panel finds that the Complainant has satisfied the second element in paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy provides that certain circumstances shall be evidence of the registration and use of a domain name in bad faith. The fourth of these is as follows: (iv) by using the [disputed] 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] web site or location or of a product or service on [the respondent’s] website or location. With respect to registration, the disputed domain name was registered in 2021, after the registration of the Complainant’s ONLYFANS trademark. The disputed domain name wholly incorporates the ONLYFANS mark. The evidence shows that the Complainant’s ONLYFANS mark had already acquired a considerable reputation online through use in connection with the Complainant’s social media platform by the time at which the disputed domain name was registered. Moreover, the disputed domain name incorporates ONLYFANS as a single term separated by a hyphen from the word “plus”, indicating that it incorporates the mark rather than the two dictionary words of which that mark is composed. Despite having received notice of the Complaint, the Respondent offered no explanation of his choice to register the disputed domain name. In view of these circumstances, the Panel finds that the Respondent had the Complainant’s mark in mind when he registered the disputed domain name. With respect to use, the disputed domain name combines the ONLYFANS trademark with the word “plus”, separated by a hyphen, implying that it will resolve to a website that provides an additional feature for use with the Complainant’s social media platform. However, the disputed domain name formerly resolved to a website that had no connection to the OnlyFans social media platform at all. The website falsely claimed that it offered an “official” WhatsApp tool. The tool either hacked WhatsApp user accounts, as claimed, or extracted information about WhatsApp user numbers, most likely as part of a scam. Either way, such behavior is manifestly evidence of bad faith. See WIPO Overview 3.0, section 3.1.4. In view of these circumstances, the Panel finds that the disputed domain name is being used in bad faith within the terms of paragraph 4(b)(iv) of the Policy. The Panel notes that the use of the disputed domain name has recently changed and that it no longer resolves to an active website. This change in use does not alter the Panel’s conclusion; if anything, it constitutes a further indication of bad faith. Therefore, the Panel finds that the disputed domain name has been registered and is being used in bad faith. The Complainant has satisfied the third element in paragraph 4(a) 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 Matthew Kennedy
Sole Panelist
Date: July 21, 2021
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