The Complainant is Facebook, Inc., United States of America (“United States”), represented by Hogan Lovells (Paris) LLP, France.
The Respondent is Haythem Chihi, Tunisia, represented by Law Office of Dmitriy Chyrkin, Ukraine. 2. The Domain Names and Registrar
The disputed domain names The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 19, 2021. On June 21, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On June 23, 2021, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that 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 July 2, 2021. In accordance with the Rules, paragraph 5, the due date for Response was July 22, 2021. On July 19, 2021, the Respondent requested an extension of the due date for the Response. On July 19, 2021, the Center granted to the Respondent the automatic four calendar day extension for Response under Paragraph 5(b) of the Rules, and the due date for Response became July 26, 2021. The Response was filed with the Center on July 26, 2021. The Center appointed Assen Alexiev as the sole panelist in this matter on August 3, 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 provider of online social media and social-networking services, which are provided in more than 70 languages. It was founded in 2004 and as of December 2020 had about 2.8 billion monthly active users and 1.84 billion daily active users worldwide. The Complainant’s main website at the domain name The Complainant is the owner of the following trademark registrations for the sign FACEBOOK (the “FACEBOOK trademark”): − the United States trademark FACEBOOK with registration No. 3,041,791, registered on January 10, 2006 for services in International Classes 35 and 38; The Complainant is the owner of the following trademark registrations for the sign FB (the “FB trademark”): − the European Union trademark FB with registration No. 008981383, registered on August 23, 2011 for services in International Class 45; and The Complainant is also the owner of the domain names The disputed domain names were registered on the following dates: Disputed domain name Date of registration May 5, 2013 November 1, 2017 May 29, 2012 October 26, 2017 December 10, 2017 February 19, 2018 October 26, 2017 October 26, 2017 February 23, 2018 February 19, 2018 February 23, 2018 February 23, 2018 October 26, 2017 November 1, 2017 February 23, 2018 April 13, 2018 April 13, 2018 April 13, 2018 April 13, 2018 April 13, 2018 April 13, 2018 April 13, 2018 July 20, 2019 October 5, 2013 At the time of filing of the Complaint the disputed domain names According to the Complainant, the Respondent’s website at “www.fbdown.net” to which the disputed domain names The Complainant states that the disputed domain names are confusingly similar to its FACEBOOK and FB trademarks, because they incorporate these trademarks in their entirety with the addition of the descriptive terms “down” and “videoz”. The FACEBOOK and FB trademarks are clearly recognizable as the leading elements of the disputed domain names, and the terms “down” and “videoz” do not prevent the confusing similarity between the disputed domain names and the trademarks, which remain clearly recognizable in the disputed domain names. According to the Complainant, the Respondent has no rights or legitimate interests in respect of the disputed domain names, because it is not known under them and has not been authorized by the Complainant to use the FACEBOOK and FB trademarks, and the Complainant has not had any prior business relationship with the Respondent. The Complainant points out that the Respondent is not using the disputed domain names in connection with a bona fide offering of goods or services within the meaning of paragraph 4(c)(i) of the Policy, but is targeting the Complainant and has not included on its website any disclaimer that it was not operated by, sponsored by, or affiliated with the Complainant and has not provided any contact information. The use of the disputed domain names The Complainant contends that the disputed domain names were registered and are being used in bad faith. According to it, as FACEBOOK and FB trademarks are highly distinctive and the Respondent must have had prior knowledge of them at the time it registered the disputed domain names between 2013 and 2019, especially as the Complainant had already amassed more than 1 billion users at the end of 2012. Moreover, the content of the Respondent’s website containing commercial links shows that the Respondent had the Complainant in mind when registering the disputed domain names The Complainant further contends that the Respondent’s use of the disputed domain names According to the Respondent, the abbreviation “fb” is a generic term which has many different meanings, including, but not limited to “followed by”, “first base”, “foreign body”, “fullback”, “frame buffer”, “forward backward”, “front back”, “first best”, “front to back”, “flash back”, “friendship book”, “funny bunny”, “flat back”, and there are about 160 online definitions for “fb”. “FB” is therefore a generic abbreviation to which the Complainant cannot claim exclusivity, and it is well-settled by UDRP Panels that common words and descriptive terms are legitimately subject to registration as domain names on a “first-come, first-served” basis. The Respondent submits that it has been using the disputed domain names for a long period of time without consumer confusion which proves that confusion with Complainant’s trademarks is unlikely. The fact that the disputed domain names are generic and usable for any variety of generic purposes further establishes the Respondent’s legitimate interest in the disputed domain names. The Respondent further states that providing support services may establish rights or legitimate interests in a domain name. According the Respondent, the services offered by it are not in competition with the Complainant, as the Respondent primarily focuses on providing help to the Complainant’s followers. The Respondent claims that he did not register the disputed domain names for the purpose of preventing “the owner of the trademark or service mark from reflecting the mark in a corresponding domain name,” because the Respondent believed that the abbreviation “fb” is generic, and no one has exclusive right to use this word. The Respondent did not intend to create a likelihood of confusion or disrupt the Complainant’s business, but is a good faith registrant of the disputed domain names. The Respondent maintains that the disputed domain names have not been registered and are not being used in bad faith. To the extent that the Complainant has made a prima facie case sufficient to shift the burden of proof to the Respondent in this matter, the Respondent submits that it has rebutted these assertions. The Complainant has only made general statements that the Respondent has no legitimate interests in the disputed domain names and that registration was in bad faith but has not submitted sufficient evidence to establish either, in particular bad faith by the Respondent. There is no evidence that the Respondent has registered the disputed domain names with the intent to sell them to the Complainant or to a competitor. As to the disputed domain names The Respondent also submits that its website contains a disclaimer, which eliminates any possibility that the Respondent was attempting to infer an affiliation with the Complainant and its trademark. The disclaimer on the Respondent’s website states: “FBDOWN is a Social Media Services website and is not associated by any means to Facebook or the Facebook brand and doesn’t have anything to do with Facebook, Inc.” This disclaimer was allegedly activated on May 10, 2021, before receiving the Complaint. The Respondent further states that if the Complainant truly believed that the disputed domain names were being used in conflict with its trademark rights, it would have acted long ago, as the Respondent has been actively using the disputed domain names since 2012. The Respondent submits that the Complainant has abused the administrative proceeding in an attempt to deprive the Respondent of the disputed domain names. The Complainant had no bona fide basis for commencing this proceeding under the UDRP. It must have known prior to the filing of the Complaint that its registered trademarks provide no rights to domain names that have been used by the Respondent in connection with a bona fide offering of services, and that the generic word “fb” would not have protection under UDRP. 6. Discussion and Findings Pursuant to the Policy, paragraph 4(a), the Complainant must prove each of the following to justify the transfer of the disputed domain names: (i) the disputed domain names are identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (ii) the Respondent has no rights or legitimate interests in respect of the disputed domain names; and (iii) the Respondent has registered and is using the disputed domain names in bad faith. A. Identical or Confusingly Similar The Complainant has provided evidence and has thus established its rights in the FACEBOOK and FB trademarks for the purposes of the Policy. The Panel notes that a common practice has emerged under the Policy to disregard in appropriate circumstances the Top-Level Domain (“TLD”) section of domain names for the purposes of the comparison under the Policy, paragraph 4(a)(i). See section 1.11.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). The Panel sees no reason not to follow the same approach here, so it will disregard the TLD sections of the disputed domain names. The relevant part of all of the disputed domain names apart from In view of the above, the Panel finds that the disputed domain names are confusingly similar to the FACEBOOK and FB trademarks in which the Complainant has rights. B. Rights or Legitimate Interests While the overall burden of proof in UDRP proceedings is on the complainant, UDRP panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often-impossible task of “proving a negative”, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element. See section 2.1 of the WIPO Overview 3.0. The Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain names, as it is not commonly known by them and has not been authorized by the Complainant to use them. The Complainant submits that the Respondent is not using the disputed domain names for a bona fide offering of goods or services, as the Respondent is seeking to unduly benefit from the Complainant’s goodwill and create confusion as to the entity providing the downloading services offered on the website to which some of the disputed domain names refer, which has the same “look and feel” as the Complainant’s website, while the websites associated to the other disputed domain names attempt to generate click-through revenue from PPC links. With regard to the disputed domain name The Respondent submits that “fb” is a generic abbreviation with many different meanings so the Complainant cannot claim exclusivity to it, and it can be legitimately registered as a domain name on a “first-come, first-served” basis. According to the Respondent, the fact that the disputed domain names are generic and usable for any variety of generic purposes further establishes the Respondent’s legitimate interests in them. The Respondent further submits that providing support services may establish rights or legitimate interests in a domain name, and the services offered by the Respondent are not in competition with the Complainant, as the Respondent primarily focuses on providing help to the Complainant’s followers. The Panel is not convinced by the arguments of the Respondent. As noted by it, “fb” may be an abbreviation with different meanings unrelated to the Complainant and its trademarks, but the Respondent has not shown that it has registered and used the disputed domain names for any purpose unrelated to the Complainant. Rather, the evidence in the case, which has not been disputed by the Respondent, shows that the disputed domain names refer to the Complainant. On June 18, 2021, the disputed domain names “FBDOWN.net is a Free to use website that helps Facebook users download their favorite videos off Facebook and save them for offline viewing by generating direct links to the Facebook video. PS: Beware of other websites that may use our brand name (FBDOWN) or website design to fool some users. The only domain names that we own (currently) are: FBDOWN.NET - FBDOWN.COM - FBDOWN.BIZ - FBDOWN.CC - FBDOWN.CO.IN - FBDOWN.CO.UK - FBDOWN.COMPANY - FBDOWN.DOWNLOAD - FBDOWN.FR - FBDOWN.DE - FBDOWN.LTD - FBDOWN.ME.UK - FBDOWN.MOBI - FBDOWN.ORG - FBDOWN.PRO - FBDOWN.SPACE - FBDOWN.STORE - FBDOWN.TECH - FBDOWN.US - FBDOWN.WEBSITE - FBDOWN.WS - FBDOWN.CH - FBDOWN.SOLUTIONS - FBDOWN.GURU - FBDOWN.BE - FBDOWN.CENTER - FBDOWN.WORK - FBDOWN.TIPS - FBDOWN.NEWS - FBDOWN.TODAY”. This text cannot be regarded as a disclaimer for the lack of relationship with the Complainant. Rather, it shows that the Respondent’s website and all of the disputed domain names target the Complainant and were registered and are being used not in relation to any generic meaning, unrelated to the Complainant, but with the purpose to be used for offering services related to the Complainant’s platform and for posting of advertising links for commercial gain. Thus, the disputed domain names, all of them being confusingly similar to the Complainant’s trademarks, actually trade-off the Complainant’s trademark rights. As discussed in section 2.10.1 of the WIPO Overview 3.0, panels acting under the Policy have recognized that merely registering a domain name comprised of a dictionary word or phrase does not by itself automatically confer rights or legitimate interests on the respondent; panels have held that mere arguments that a domain name corresponds to a dictionary term/phrase will not necessarily suffice. In order to find rights or legitimate interests in a domain name based on its dictionary meaning, the domain name should be genuinely used, or at least demonstrably intended for such use, in connection with the relied-upon dictionary meaning and not to trade off third-party trademark rights. The Panel is also not convinced by the Respondent’s other argument that it has rights and legitimate interests in the disputed domain names, because it is providing help and support services to the Complainant’s followers, and these services are not in competition with the Complainant. Such activities in the circumstances of this case cannot therefore be regarded as legitimate and giving rise to rights and legitimate interests of the Respondent in the disputed domain names. In view of the above, and in the lack of any contrary evidence, the Panel accepts that the Respondent, being aware of the goodwill of the Complainant and of its FB trademark, has registered and used the disputed domain names All of the disputed domain names It appears from the evidence in the case file that the disputed domain name Taking all the above into account, the Panel finds that the Complainant’s prima facie case has not been rebutted and the Respondent does not have rights or legitimate interests in the disputed domain names. C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy lists four illustrative alternative circumstances that shall be evidence of the registration and use of a domain name in bad faith by a respondent, namely: “(i) circumstances indicating that you have registered or you have 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 that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or (ii) you have 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 you have engaged in a pattern of such conduct; or (iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your 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 your website or location or of a product or service on your website or location.” All of the disputed domain names except The Respondent has submitted an explanation about the registration and use of the disputed domain names which refers to various descriptive meanings of the abbreviation “fb” that are not related to the Complainant. However, the actual use of the disputed domain names by the Respondent, as evident from the case file, disproves such explanation and shows that they in fact target the Complainant and create the risk that Internet users may be led to wrongly believe that the disputed domain names and the services featured on the website to which they redirect are related to or endorsed by the Complainant. The large number of these disputed domain names supports a finding that the Respondent has engaged in a pattern of conduct targeting the Complainant and its trademark rights. The Respondent states that it is not itself receiving revenue form the PPC links appearing on the websites at the disputed domain names. However, as discussed in section of the WIPO Overview 3.0, particularly with respect to “automatically” generated PPC links, panels have held that a respondent cannot disclaim responsibility for content appearing on the website associated with its domain name, and neither the fact that such links are generated by a third party such as a registrar, nor the fact that the respondent itself may not have directly profited, would by itself prevent a finding of bad faith. Taking the above into account, the Panel accepts that the Respondent has registered and used the disputed domain names with knowledge of the Complainant and targeting the FB trademark in an attempt to attract traffic to the websites to which the disputed domain names redirect and to the commercial links posted on them by deceiving Internet users that the disputed domain names and the services and links featured on the websites to which they redirect are related to or endorsed by the Complainant. This supports a finding that the disputed domain names have been registered and used in bad faith. The fact that the disputed domain name
− the European Union trademark FACEBOOK with registration No. 005722392, registered on April 29, 2008 for goods in International Classes 18, 25, and 28;
− International trademark FACEBOOK with registration No. 1232015, registered on December 15, 2014 for goods in International Class 12; and
− Tunisian trademark FACEBOOK with registration No. TN/E/2016/204, registered on June 6, 2017 for goods and services in International Classes 9, 35, 36, 38, 41, 42, and 45.
− the United States trademark FB with registration No. 4,659,777, registered on December 23, 2014 for services in International Class 35.
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