The Complainant is Facebook Technologies, LLC, United States of America (“United States”), represented by Hogan Lovells (Paris) LLP, France.
The Respondents are Super Privacy Service LTD c/o Dynadot, Eugene Preston, Theda Folkerts, Theresa Chavez, Monica Davis, Echo lee, k m, Steven Holmes, azu seedorf, Daisy luck, Kxin Kxin, Douglas Hall, Linda Hamilton, Patricia Stryker, Paul Morefield, Erin Quintero, wills eldren, lucky017 lucky017, Roche Chu, TheIs Thdss, and Name Redacted, United States.
2. The Domain Names and RegistrarThe disputed domain names
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 19, 2021, with respect the disputed domain names above and two other domain names. On August 19, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On August 20, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrants and contact information for the disputed domain names, which differed from the named Respondents and contact information in the Complaint. The Center sent an email communication to the Complainant on August 30, 2021, providing the registrants 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 September 3, 2021, withdrawing the two other domain names from this proceeding and continuing with the disputed domain names above.
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 Respondents of the Complaint, and the proceedings commenced on September 13, 2021. In accordance with the Rules, paragraph 5, the due date for Response was October 3, 2021. The Respondents did not submit any response. Accordingly, the Center notified the Respondents’ default on October 4, 2021.
The Center appointed Evan D. Brown as the sole panelist in this matter on October 8, 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 BackgroundThe Complainant promotes and distributes various Virtual Reality headsets. It owns numerous trademark registrations for the terms OCULUS and QUEST in many jurisdictions around the world. Such trademark registrations include United States Trademark No. 4,891,157 for the mark OCULUS, registered on January 26, 2016, and United States Trademark No. 6,279,215 for the mark QUEST, registered on February 23, 2021.
The disputed domain names were registered on various dates from June through August 2021. The Respondents have used the disputed domain names to publish various similar websites purportedly offering the Complainant’s products for sale and having a similar “look and feel” to the Complainant’s official website. The associated websites have purportedly offered the Complainant’s products for sale at a discounted price and enabled Internet users to place orders directly via these websites by providing personal data, such as postal address and telephone number. According to the Complainant’s research, it appears that the amounts paid by internet users for the purported Oculus products were sent to various third party PayPal accounts via redirect domain names.
5. Parties’ Contentions A. ComplainantThe Complainant contends that the disputed domain names are identical or confusingly similar to the Complainant’s trademarks; that the Respondents have no rights or legitimate interests in respect of the disputed domain names; and that the disputed domain names were registered and are being used in bad faith.
B. RespondentsThe Respondents did not reply to the Complainant’s contentions.
6. Consolidation of Multiple RespondentsThe Complainant requests the Panel hear the present dispute – brought by one Complainant against 20 named Respondents – as a consolidated complaint. The Panel grants the request.
Paragraph 10(e) of the Rules states that a “[p]anel shall decide a request by a Party to consolidate multiple domain name disputes in accordance with the Policy and these Rules.” Paragraph 10(c) of the Rules provides, in relevant part, that “the [p]anel shall ensure that the administrative proceeding takes place with due expedition.”
Section 4.11.2 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) summarizes the consensus view of UDRP panels on the consolidation of multiple Respondents as follows:
Where a complaint is filed against multiple Respondents, panels look at whether (i) the domain names or corresponding websites are subject to common control, and (ii) the consolidation would be fair and equitable to all parties. Procedural efficiency would also underpin panel consideration of such a consolidation scenario.
Panels have considered a range of factors, typically present in some combination, as useful to determining whether such consolidation is appropriate, such as similarities in or relevant aspects of (i) the registrants’ identity(ies) including pseudonyms, (ii) the registrants’ contact information including email address(es), postal address(es), or phone number(s), including any pattern of irregularities, (iii) relevant IP addresses, name servers, or webhost(s), (iv) the content or layout of websites corresponding to the disputed domain names, (v) the nature of the marks at issue (e.g., where a registrant targets a specific sector), (vi) any naming patterns in the disputed domain names (e.g.,
In support of consolidation, the Complainant asserts that:
- All the disputed domain names were previously or are currently associated with highly similar websites purportedly offering the Complainant’s products for sale and having a similar “look and feel” to the Complainant’s official website.
- All of the disputed domain names were registered within 39 days of each other and many of the disputed domain names were registered on the same dates.
- All of the disputed domain names are registered with the same registrar.
-The WhoIs information shows that 25 of the disputed domain names have been registered using the same privacy registration service (Super Privacy Service LTD c/o Dynadot, based in California, United States), while the available registrant information for the other 28 disputed domain names indicates the same geographical location (i.e., California, United States), which strongly suggests that these disputed domain names may also be under the same registrar’s privacy registration shield.
- All the disputed domain names target the Complainant’s OCULUS and/or QUEST trademarks.
- Except for the disputed domain name
- Many of the disputed domain names are associated with the same IP address range.
- The WhoIs information shows a pattern of naming irregularities in the registration information.
- Consolidation is equitable because the arguments for all of the disputed domain names are similar, and causing the Complainant to file a separate case for each disputed domain name would require the Complainant to incur substantial additional cost.
The Respondents have not replied to these assertions. The Panel accepts these arguments in favor of consolidation and grants the request to consolidate.
7. Discussion and FindingsTo succeed, the Complainant must demonstrate that all of the elements listed in paragraph 4(a) of the Policy have been satisfied:
(i) the disputed domain names are identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) the Respondents have no rights or legitimate interests in respect of the disputed domain names; and
(iii) the disputed domain names have been registered and are being used in bad faith.
The Panel finds that all three of these elements have been met in this case.
A. Identical or Confusingly SimilarThe incorporation of a trademark in its entirety is sufficient to establish that a disputed domain name is identical or confusingly similar to the Complainant’s registered mark. See, Britannia Building Society v. Britannia Fraud Prevention, WIPO Case No. D2001-0505. In this case, the disputed domain names contain the Complainant’s trademarks OCULUS and QUEST in their entireties. The additional words, such as “factory,” “gear(s)”, “company”, “rifts”, “official”, “outlet”, and “product” in certain of the disputed domain names in this context do not eliminate any confusing similarity. Similarly, the geographic terms or acronyms such as “usa” or “us”, do not prevent a finding of confusing similarity. See WIPO Overview of WIPO Pane Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.8.
A registered trademark provides a clear indication that the rights in the mark shown on the trademark certificate belong to its respective owner. See, Advance Magazine Publishers Inc., Les Publications Conde Nast S.A. v. Voguechen, WIPO Case No. D2014-0657. The Complainant has demonstrated its rights because it has shown that it is the owner of trademark registrations for the marks OCULUS and QUEST as noted above.
Accordingly, the Complainant has shown that the disputed domain names are identical or confusingly similar to trademarks in which the Complainant has rights and has prevailed on this first element of the Policy.
B. Rights or Legitimate InterestsA complainant succeeds under this element if it makes a prima facie showing that a respondent lacks rights or legitimate interests in the disputed domain name, and that prima facie showing remains unrebutted by the respondent.
The Complainant presents a number of arguments under this element:
- The Respondents are not authorized dealers, distributors, or licensees of the Complainant, nor have they been otherwise allowed by the Complainant to make any use of the OCULUS and QUEST trademarks, including in domain names.
- The Respondents cannot assert that, prior to any notice of this dispute, they were using, or had made demonstrable preparations to use, the disputed domain names in connection with a bona fide offering of goods or services. As described above, all the disputed domain names were previously or are currently being used to point to highly similar websites prominently displaying the Complainant’s marks and having a similar “look and feel” to the Complainant’s official website, without any visible disclaimer at the bottom of the homepage.
- The Respondents’ previous or current use of the disputed domain names to offer the Complainant’s products for sale at a significantly lower price strongly suggests that the disputed domain names may be used in connection with a fraudulent scheme, where unsuspecting internet users were deceived into paying for the Complainant’s products, which were never intended to actually be supplied.
- The Respondents cannot claim any nominative fair use by using the disputed domain names incorporating the Complainant’s trademarks to distribute the Complainant’s products as per the requirements outlined in the test set forth in Oki Data Americas, Inc. v. ASD, Inc.,WIPO Case No. D2001-0903).
- The Respondents cannot conceivably claim that they are commonly known by the disputed domain names.
- The Respondents cannot assert that they have made or are currently making a legitimate noncommercial or fair use of the disputed domain names, without intent for commercial gain to misleadingly divert consumers.
These assertions establish the Complainant’s prima facie case. The Respondents have not addressed the Complainant’s arguments under this second Policy element. Seeing no other basis in the record to tilt the balance in the Respondents’ favor, the Panel finds that the Complainant has satisfied this second Policy element.
C. Registered and Used in Bad FaithThe Policy requires a complainant to establish that a disputed domain name was registered and is being used in bad faith. The Policy describes several non-exhaustive circumstances demonstrating a respondent’s bad faith registration and use. Under paragraph 4(b)(iv) of the Policy, a panel may find bad faith when a respondent “[uses] the domain name to intentionally attempt to attract, for commercial gain, Internet users to [respondent’s] website or other online location, by creating a likelihood of confusion with complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [respondent’s] website or location or a product or service on [respondent’s] website or location”.
The Complainant’s OCULUS and QUEST marks are well known and distinctive. It is not plausible that the Respondents were not aware of these marks when they registered the disputed domain names. This targeting is made clear from the way in which the Respondents used the disputed domain names to mimic the Complainant and set up commercial websites purporting to offer the Complainant’s goods for sale. The fact that a large number of the disputed domain names also included the acronym “vr” (i.e., “virtual reality”), further reinforces the Respondents’ intention to target and benefit from the reputation associated with the Complainant’s marks. These facts clearly establish bad faith registration and use of the disputed domain names. Accordingly, the Complainant has satisfied this third UDRP element.
8. DecisionFor the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain names,
Evan D. Brown
Sole Panelist
Date: October 29, 2021