ARBITRATION AND MEDIATION CENTER ADMINISTRATIVE PANEL DECISION Fenix International Limited c/o Walters Law Group v. Private Registry Authority, Privacy Protect, LLC (PrivacyProtect.org), Privacy service provided by Withheld for Privacy ehf, Global Domain Privacy Services Inc., See PrivacyGuardian.org, Andrew Rew , Okoth Nigel, Chaker Ben smida, sofma, John Harbin, Keith Allan, Amar Bizwer, Najib Lakhdhar, Bouabdellah, Jamal McMillan, Atay Rabby Chisty, IVAN KOBETS, MINERAL, maddis jones, Philipp Muller Case No. D2022-3002 1. The Parties The Complainant is Fenix International Limited c/o Walters Law Group, United States of America ("United States"). The Respondents are Private Registry Authority, Australia, Privacy Protect, LLC (PrivacyProtect.org), United States, Privacy service provided by Withheld for Privacy ehf, Iceland, Global Domain Privacy Services Inc., Panama, See PrivacyGuardian.org, United States, Andrew Rew, Romania, Okoth Nigel, Kenya, Chaker Ben smida, sofma, Tunisia, John Harbin, United States, Keith Allan, United States, Amar Bizwer, Tunisia, Najib Lakhdhar, Bouabdellah, Tunisia, Jamal McMillan, United States, Atay Rabby Chisty, Maylaysia, IVAN KOBETS, MINERAL, Russian Federation, maddis jones, India, and Philipp Muller, Germany. 2. The Domain Names and Registrars The disputed domain name is registered with Dreamscape Networks International Pte Ltd; the disputed domain names , , , , , , and are registered with NameCheap, Inc.; the disputed domain name is registered with NameSilo, LLC; the disputed domain names , , , and are registered with PDR Ltd. d/b/a PublicDomainRegistry.com; and the disputed domain name is registered with URL Solutions, Inc. (collectively "the Registrars"). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on August 14, 2022. On August 16, 2022, the Center transmitted by email to the Registrars a request for registrar verification in page 2 connection with the disputed domain names. On August 16, August 17, and August 25, 2022, the Registrars transmitted by email to the Center the verification responses disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on August 25, 2022 providing the registrant and contact information disclosed by the Registrars, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on August 30, 2022. 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 2, 2022. In accordance with the Rules, paragraph 5, the due date for Response was September 22, 2022. On September 20, 2022, the Respondent Jamal McMillan1 requested an extension to the Response due date. In accordance with paragraph 5(b) of the Rules, the due date for Response was extended to September 26, 2022. From an email address including "dmca-xpornonly" an email was received on September 6, 2022, regarding the disputed domain name . No formal Response was filed. From the Respondent Philipp Muller2 an email was received on September 6, 2022, asking for a copy of the Complaint. After the Center sent the Complaint to the Respondent, no formal Response was filed. From a Respondent who claimed to be the owner of the disputed domain name , an email was received on September 7, 2022, informing the Center that he wanted to give the disputed domain name to the company filing a trademark complaint. No formal Response was filed. From a Respondent who claimed to be the owner of the disputed domain name , an email was received on September 8, 2022, but no formal Response was filed. On September 21, 2022, the Response filed by the Respondent Atay Rabby Chisty3 was received by the Center. The Response filed by the Respondent Jamal McMillan was received by the Center on September 26, 2022. The Center appointed Richard C.K. van Oerle as the sole panelist in this matter on October 13, 2022. 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 owns and operates the website located at "www.onlyfans.com". The Complainant has used it for several years as a social media platform that allows users to post and subscribe to audiovisual content. In 2022, "www.onlyfans.com" is one of the most popular websites in the world, with more than 180 million registered users. According to Alexa Internet, it is the world's 177th most popular website. The Complainant owns trademark registrations in multiple jurisdictions for the ONLYFANS word and design mark, such as European Union Trade Mark No. 017912377, registered on January 9, 2019; European Union Trade Mark No. 017946559, registered on January 9, 2019; United Kingdom Trade Mark No. 1 The registrant of the disputed domain name . 2 The registrant of the disputed domain name . 3 The registrant of the disputed domain name . page 3 UK00917912377, registered on January 9, 2019; and United Kingdom Trade Mark No. UK00917946559, registered on January 9, 2019. The disputed domain names were registered on the following dates: Domain Name Registration Date November 12, 2020 May 22, 2020 November 30, 2020 April 12, 2021 December 27, 2020 May 21, 2021 May 19, 2021 April 19, 2021 March 29, 2021 October 20, 2019 September 15, 2021 June 28, 2020 August 16, 2021 August 30, 2021 The Complainant has documented that the disputed domain names at the time of filing the Complaint resolved to websites that offer adult entertainment content. 5. Consolidation of Multiple Respondents For procedurally economic reasons, the Panel will first consider whether the requested consolidation of Respondents should be allowed. Where a complaint has been filed against multiple respondents, the Panel must 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 (WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"), section 4.11.2). The Complainant submits, in summary and in so far as relevant, the following in support of its claim for consolidation. The Complainant asserts that all evidence suggests that the registrants [Respondents] of the disputed domain names are the same person, entity, or network, somehow connected to each other, and are under common control aimed at intentionally infringing the Complainant's marks and harming consumers. The disputed domain names (1) lead to websites that allow users to access content pirated from the Complainant's services; (2) use similar header menus; (3) resolve to websites with the same layout or similar content; (4) use similar fonts or logos; (5) offer the same services, product plans, and prices; and (6) all domains were registered with the same three registrars. Further, the Complainant asserts that many of the disputed domain names contain the same structure: some contain a generic word followed by the ONLY portion of the trademark, before a Top-Level Domain ("TLD"), whereas others contain the "ONLY" portion of the trademark followed by a generic word before a TLD. In many cases, the same generic word is used, such as "cest"/"incest" and "nude"/"nudes". Multiple disputed domain names use the same TLD, such as and , and nine disputed domain names use ".com". page 4 Additionally, the disputed domain names are registered using what appear to be fictitious, incomplete, or stolen names and addresses. The Complainant mentions two examples of non-existing addresses, two examples of a not a complete address, asserts that many of the disputed domain names use phone numbers with area codes different from the location of the street address and cites one example to illustrate this, two disputed domain names use an email address from a different country than the street address and the Complainant asserts that many of the disputed domain names use fictitious phone numbers, illustrating this with one example. Insofar as any of the contact information is the same, the registrants of the disputed domain names , , and are registered to addresses in Souklahad in Kebili, Tunisia with the same phone number, and disputed domain name is registered to an address in Tunisia. Finally, the Complainant asserts that at least one of the Respondents has been named in a successful UDRP complaint by the Complainant which resulted in consolidation of many individuals with different addresses. The Respondent Jamal McMillan has filed a Response that is dealing with the issue of consolidation, submitting, in summary and in so far as relevant, the following: The disputed domain name , it's registrant, designers, operators, etc., are not partnered, affiliated, or in any way connected to any of the other websites. No other site listed in the Complaint has the same registrant, contact information, financial information, registration date, etc. as the disputed domain name . The Complainant has offered no tangible evidence of any connection between the disputed domain name and any other site in the Complaint. As of September 26, 2022, the Complainant has made zero piracy/infringement/Digital Millennium Copyright Act ("DMCA") claims for any content located on the website which the disputed domain name resolves to. The disputed domain name was created on a basic "KVS" script, which can be bought and installed for less than USD 50. There are countless such scripts in operation across the web today. All KVS scripts come with same basic layouts and fonts, thus different sites may appear to be similar when in fact they have no connection whatsoever. The disputed domain name was registered by a third party web host/design company, the Respondent did not "choose" which registrar was to be used. The Respondent concludes that the Complainant has failed to demonstrate that the disputed domain names or the websites to which they resolve are subject to common control, and the panel having regard to all of the relevant circumstances, cannot determine that consolidation would be procedurally efficient, fair, and equitable to all Parties in accordance with the UDRP Rules. The Respondent cannot possibly provide the Panel with countermanding information with respect to other unrelated sites, its registrants, designers, operators or affiliates. The Respondent requests that the Complainant's request for consolidation be denied. The Respondent Atay Rabby Chisty has also filed a Response dealing with the issue of consolidation, in summary and in so far as relevant, that the disputed domain name is in no way associated with the other Respondents. Moreover, any possible similarities to the other disputed domain names are pure coincidence. The Panel, in considering whether the requested consolidation of multiple Respondents should be allowed, adopts the test outlined above. The Complainant asserts that disputed domain names lead to websites that allow users to access content pirated from the Complainant's services. page 5 It is up to the Complainant to properly and clearly substantiate its claims. The mere reference in a complaint to an Annex is insufficient, at least in this case, since the substantiation of the claim is not sufficiently clear from this Annex. In any case, the Panel could not derive the substantiation of the claim from the Annex (only on websites which the disputed domain names and resolve to the Panel could read the text "NudeOf Leaked Onlyfans Videos" and "Latest Onlyfans Videos"). In the absence of substantiation of the claim, it cannot be relied upon. The Complainant further asserts that the websites the disputed domain names divert to use similar header menus, the same layout or similar content and use similar fonts or logos. The Respondent Jamal McMillan rebutted that his website was created on a basic "KVS" script. It appears that Kernel Video Sharing (KVS) is a CMS script that is extensively used in video sharing web sites. It can also be used to make a simple layout of a website. Looking at the websites the disputed domain names divert to more in detail the Panel notes that all the websites differ from each other to a greater or lesser extent. In some, similarity is far from obvious (e.g. the disputed domain names and ), in others the differences are less obvious. But differences always are visible: the number of columns differs, next to these main columns there are, or are not side columns or blocks, the header menus differ, the fonts are not always the same, the logos differ, there are, or are not, links to follow-up pages at the bottom, the background differs in colour or is filled with images, etc. And even if the Panel would accept the Complainant's submission and agree that the similarities between some websites in question are sufficient to establish, on the balance of probabilities, that those domain names are in common control, this finding, however, does not establish common control between those and the other websites in issue. Looking at all this the Panel cannot conclude that the content of the websites demonstrate that the websites are subject to common control. The Complainant further asserts that disputed domain names offer the same services, product plans, and prices. The Annexes presented only shows websites with adult entertainment content. The Complainant did not present information regarding product plans and prices of the several websites. In the absence of any substantiation of the correctness of the claim, it cannot be relied upon. The Complainant further asserts that all domains were registered with the same three registrars. (The Complainant bases this argument on a clear error; indeed, the Complainant itself writes (under point 9 of the amended Complaint) that five different registrars are concerned.) However, this finding does not establish common control between the fourteen disputed domain names in issue. Further, the Complainant asserts that 11 of the 14 disputed domain names consist of the word "only" in combination with a generic word. The Panel does not see why that in itself would give rise to a common control presumption, when that word is used in its descriptive sense, in combination with another descriptive word. This and the fact that some websites use the same generic word and that multiple disputed domain names use the same TLD, such as ".tv" and ".com" do not establish common control. As for the use of what appear to be fictitious or incomplete address by a Respondent, or a stolen names and/or incorrect addresses by other Respondents or irregularities therein, the following is noted. Indeed, while the arguments and irregularities cited by the Complainant may each have been rightly noted as such, it does not follow that this demonstrates that the disputed domain names or corresponding websites are subject to common control. In many domain name cases, irregularities regarding the respondent come to light, and these, often combined with other facts and circumstances, may contribute to a decision in favour of the complainant. However, establishing that the disputed domain names or corresponding websites are under common control requires a plausible link between these irregularities. If it is found that for one Respondent, an incorrect address was given, for another Respondent the telephone number was incorrect and for a third Respondent an incomplete name was used, it does not show that between these inaccuracies, there is such a link as to establish common control. page 6 Finally, the Complainant asserts that at least one of the Respondents has been named in a successful UDRP complaint by the Complainant, which resulted in consolidation of many individuals with different addresses. The Complainant refers (under paragraph 16 of the amended Complaint) to the Respondent Keith Allan. A respondent with similar name has been named in a successful UDRP complaint by the Complainant (See Fenix International Limited v. (amongst others) Privacy service provided by Withheld for Privacy ehf / Keith Allan, WIPO Case No. D2022-0073). Even if this is the same person, the Panel regards this matter as having no material relevance to the question of common control with the other disputed domain names with different registration details. Moreover, differences in the email addresses, signatures, and language of the email communications received in relation to the disputed domain names , , , , , and , do not support a finding of common control. The Panel further mentions the following. The file shows that all the disputed domain names registered on different dates over a period of almost two years, namely from October 20, 2019 to September 15, 2021. Furthermore, all Respondents have different email addresses. Rather, this suggests it is less likely that joint control can be assumed. Above, the various indications for common control have been examined individually. However, even if all the facts and circumstances are considered jointly and interrelated the Panel concludes that there is insufficient evidence to support a finding that common control exists. Given the above reasons, the Panel rejects the Complainant's request to have the Complaint filed against multiple Respondents. Accordingly, the Panel will give no further consideration to the disputed domain names within this proceeding and the Complainant may file new UDRP proceedings, should it wish to do so, in respect of these disputed domain names. 6. Decision For the foregoing reasons, the Complaint is denied without prejudice. /Richard C.K. van Oerle/ Richard C.K. van Oerle Sole Panelist Date: October 27, 2022
Full & Egal Universal Law Academy