ARBITRATION AND MEDIATION CENTER ADMINISTRATIVE PANEL DECISION Meta Platforms, Inc. v. Abdulsamet Oner, Ahmet Gumus, Samet Beh Case No. D2022-4641 1. The Parties The Complainant is Meta Platforms, Inc., United States of America ("United States"), represented by Hogan Lovells (Paris) LLP, France. The Respondents are Abdulsamet Oner, Ahmet Gumus, and Samet Beh, Türkiye. 2. The Domain Names and Registrars The disputed domain names , , and are registered with Hostinger, UAB (the "First Registrar"). The disputed domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com ("the Second Registrar"). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on December 4, 2022, with respect the disputed domain names , , and . On December 5, 2022, the Center transmitted by email to the First Registrar a request for registrar verification in connection with the disputed domain names. On December 6, 2022, the First Registrar transmitted by email to the Center their 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 December 7, 2022, 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 December 12, 2022, along with a request to add and to the current proceeding. The Center transmitted by email on December 14, 2022, to the First and Second Registrars a request for registrar verification in connection with the two domain names. On December 15 and 16, 2022, the First and Second Registrars transmitted by email to the Center its verification response disclosing registrant and contact information for the additional two domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on December 16, 2022, providing the registrant and contact information disclosed by the Registrar, and inviting the page 2 Complainant to submit a second amendment to the Complaint. The Complainant filed a second amended Complaint on December 19, 2022. The Center verified that the Complaint together with the amended Complaints 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 December 21, 2022. In accordance with the Rules, paragraph 5, the due date for Response was January 10, 2023. The Respondents did not submit a formal response, but one of the Respondents, Ahmet Gumus, sent two email communications to the Center on January 5, 2023. The Center informed the Parties that it will proceed to panel appointment on January 11, 2023. The Center appointed Edoardo Fano as the sole panelist in this matter on January 18, 2023. 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. The Panel has not received any requests from the Complainant or the Respondents regarding further submissions, waivers or extensions of deadlines, and the Panel has not found it necessary to request any further information from the Parties. Having reviewed the communication records in the case file provided by the Center, the Panel finds that the Center has discharged its responsibility under the Rules, paragraph 2(a), "to employ reasonably available means calculated to achieve actual notice to the Respondent". Therefore, the Panel shall issue its Decision based upon the Complaint, the Policy, the Rules, and the Supplemental Rules, and without the benefit of a formal response from the Respondents. The language of the proceeding is English, being the language of the Registration Agreements, as per paragraph 11(a) of the Rules. 4. Factual Background The Complainant is Meta Platforms, Inc. (formerly known as Facebook, Inc.), a United States company operating the Facebook social network website and mobile application, commonly known as "FB", and owning several trademark registrations for FB and META, among which the following: - European Union Trademark Registration No. 008981383 for FB, registered on August 23, 2011; - United States Trademark Registration No. 4,659,777 for FB, registered on December 23, 2014; - United States Trademark Registration No. 5,548,121 for META, registered on August 28, 2018 and assigned to the Complainant on October 26, 2021. The Complainant operates on the Internet at the main website "www.facebook.com", as well as with many other generic Top-Level Domains ("gTLDs") and country code Top-Level Domains ("ccTLDs") consisting of the trademarks FB and META. The Complainant provided evidence in support of the above. According to the WhoIs records, the disputed domain names were registered on the following dates: on March 17, 2022, on April 11, 2022, page 3 on March 13, 2022, on March 12, 2022, and on February 25, 2022. They all currently resolve to inactive websites. The Complainant provided evidence that the disputed domain names , , and previously redirected to the Complainant's Instagram Help Center page at "https://help.instagram.com". 5. Parties' Contentions A. Complainant The Complainant states that the disputed domain names are confusingly similar to its trademarks FB and META, as the disputed domain names wholly contain the Complainant's trademarks with the addition of the elements "business centre", "live help centers", "business center", "copyright center" and "appeal forms portal". Further to section 6.1 below, the Complainant argues that the disputed domain names are under common control and thus addresses the Respondents in the singular. The Complainant asserts that the Respondent has no rights or legitimate interests in respect of the disputed domain names since it has not been authorized by the Complainant to register the disputed domain names or to use its trademarks within the disputed domain names, it is not commonly known by the disputed domain names and it is not making either a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain names. Three of the disputed domain names were previously redirecting to the Complainant's Instagram Help Center page at "https://help.instagram.com", almost certainly in connection with a phishing scheme, and also the actual passive holding of the disputed domain names does not amount to use of them in connection with any bona fide offering of goods or services. The Complainant submits that the Respondent has registered the disputed domain names in bad faith, since the Complainant's trademarks FB and META are distinctive and internationally known. Therefore, the Respondent targeted the Complainant's trademarks at the time of registration of the disputed domain names and the Complainant contends that the previous use of three of the disputed domain names to redirect Internet users to the Complainant's Instagram Help Center page at "https://help.instagram.com", by creating a likelihood of confusion with the Complainant's trademarks as to the disputed domain names' source, sponsorship, affiliation, or endorsement, probably as part of a phishing scheme, qualifies as bad faith registration and use. Finally, the Complainant submits that also the current passive holding of the inactive disputed domain names amounts to bad faith registration and use. B. Respondents The Respondents have made no formal reply to the Complainant's contentions. A respondent is not obliged to participate in a proceeding under the Policy, but if it fails to do so, reasonable facts asserted by a complainant may be taken as true, and appropriate inferences, in accordance with paragraph 14(b) of the Rules, may be drawn (see, e.g., Reuters Limited v. Global Net 2000, Inc., WIPO Case No. D2000-0441; Microsoft Corporation v. Freak Films Oy, WIPO Case No. D2003-0109). In this case, the Respondent owning the disputed domain name submitted two informal email communications on January 5, 2023, stating the following: "hello i want to know what this is" "what am I supposed to do". page 4 6. Discussion and Findings 6.1 Consolidation of Multiple Respondents The Complainant has requested consolidation of multiple respondents and stated that the disputed domain names are subject to common control. No objection to this request was made by the Respondents. Pursuant to the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0") section 4.11.2, "[w]here 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". The Panel may consider a range of factors to determine whether consolidation is appropriate, such as examining relevant registrant contact information, and any naming patterns in the disputed domain names, or other evidence of respondent affiliation that indicate common control of the disputed domain names. The Panel notes that the disputed domain names follow a very similar naming pattern, all of them are associated with the same IP address and ASN, all of them except one are registered with the same Registrar, four of them have the same telephone and email contact details, three of them previously redirected to the same Complainant's Instagram Help Center page. In addition, among the disputed domain names sharing the same telephone and email contact are those listed under two nominally distinct Respondents. Moreover, the use of the disputed domain names remains seemingly coordinated, seeing as the disputed domain names no longer resolve to active websites. The Panel finds that there is evidence that the disputed domain names are subject to common control, and that it would be procedurally efficient, fair and equitable to all Parties to accept the Complainant's consolidation request. The Panel further notes that the Respondents did not object to the consolidation request. The Panel therefore accepts the Complainant's consolidation request. Hereinafter, the Panel will refer to the Respondents in the singular, i.e., "the Respondent". 6.2 Substantive Issues Paragraph 4(a) of the Policy lists three elements, which the Complainant must satisfy in order to succeed: (i) the disputed domain names are 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 names; and (iii) the disputed domain names have been registered and are being used in bad faith. A. Identical or Confusingly Similar The Panel finds that the Complainant is the owner of the trademarks FB and META both by registration and acquired reputation and that the disputed domain names are confusingly similar to the trademarks FB and META. Regarding the addition of the elements "business centre", "live help centers", "business center", "copyright center", "appeal forms portal" and, in one of the disputed domain names, of a hyphen, the Panel notes that it is now well established that the addition of other terms (whether descriptive, geographical terms, letters, or otherwise) to a domain name does not prevent a finding of confusing similarity between the disputed domain name and the trademark. The addition of the elements "business centre", "live help centers", "business center", "copyright center", "appeal forms portal" and, in one of the disputed domain names, of a hyphen, does not therefore prevent the disputed domain names from being confusingly similar to the Complainant's trademarks. See WIPO Overview 3.0, section 1.8. page 5 It is also well accepted that a generic Top-Level Domain ("gTLD"), in this case ".xyz", ".online", and ".org", is typically ignored when assessing the similarity between a trademark and a domain name. See WIPO Overview 3.0, section 1.11. The Panel finds that the Complainant has therefore met its burden of proving that the disputed domain names are confusingly similar to the Complainant's trademarks, pursuant to the Policy, paragraph 4(a)(i). B. Rights or Legitimate Interests Paragraph 4(a)(ii) of the Policy requires the Complainant to prove that the Respondent has no rights or legitimate interests in the disputed domain names. The Respondent may establish rights or legitimate interests in the disputed domain names by demonstrating in accordance with paragraph 4(c) of the Policy any of the following circumstances, in particular but without limitation: "(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or (ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or (iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue." According to paragraph 4(a) of the Policy, the Complainant has the burden of proving the three elements of the Policy. However, satisfying the burden of proving a lack of the Respondent's rights or legitimate interests in respect of the disputed domain names according to paragraph 4(a)(ii) of the Policy is potentially quite difficult, since proving a negative circumstance is generally more complicated than establishing a positive one. As such, it is well accepted that it is sufficient for the Complainant to make a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain names in order to shift the burden of production to the Respondent. If the Respondent fails to demonstrate rights or legitimate interests in the disputed domain names in accordance with paragraph 4(c) of the Policy or on any other basis, the Complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy. The Complainant in its Complaint, and as set out above, has established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain names. It asserts that the Respondent, who is not currently associated with the Complainant in any way, is not commonly known by the disputed domain names and is not making a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain names: three of the disputed domain names were previously redirecting to the Complainant's Instagram Help Center page at "https://help.instagram.com", likely in connection with a phishing scheme, and also the actual passive holding of the disputed domain names does not amount to use of them in connection with any bona fide offering of goods or services. Given the construction and use of the majority of the disputed domain names, it is clear that the Respondent sought to impersonate the Complainant or generally mislead unsuspecting Internet users expecting to find the Complainant. According to the WIPO Overview 3.0, section 2.13.1: "2.13.1 Panels have categorically held that the use of a domain name for illegal activity (e.g., the sale of counterfeit goods or illegal pharmaceuticals, phishing, distributing malware, unauthorized account access/hacking, impersonation/passing off, or other types of fraud) can never confer rights or legitimate interests on a respondent [.]." page 6 The prima facie case presented by the Complainant is enough to shift the burden of production to the Respondent to demonstrate that it has rights or legitimate interests in the disputed domain names. However, the Respondent has not presented any evidence of any rights or legitimate interests it may have in the disputed domain names. Moreover, the Panel finds that the composition of the disputed domain names carries a risk of implied affiliation. See WIPO Overview 3.0, section 2.5.1. The Panel therefore finds that paragraph 4(a)(ii) of the Policy has been satisfied. C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy provides that "for the purposes of paragraph 4(a)(iii) of the Policy, the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith: (i) circumstances indicating that [the respondent has] registered or has 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 the complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the domain name; or (ii) that [the respondent has] 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 [the respondent has] engaged in a pattern of such conduct; or (iii) that [the respondent has] registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) that by using the 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] website or location or of a product or service on [the respondent's] website or location". Regarding the registration in bad faith of the disputed domain names, the reputation of the Complainant's trademarks FB and META in the social networks field is clearly established and the Panel finds that the Respondent likely knew of the Complainant and its trademarks and deliberately registered the disputed domain names in bad faith, especially because, three of the disputed domain names were previously redirecting to the Complainant's Instagram Help Center page at "https://help.instagram.com", likely in connection with a phishing scheme or in furtherance of the Respondent's impersonation of the Complainant. The above suggests to the Panel that the Respondent intentionally registered and were using three of the disputed domain names in order to create confusion with the Complainant's trademarks and attract, for commercial gain in connection to a possible phishing scheme, Internet users by creating a likelihood of confusion with the Complainant's trademarks as to the source, sponsorship, affiliation, or endorsement in accordance with paragraph 4(b)(iv) of the Policy. Moreover, Panels have consistently found that the mere registration of a domain name that is identical or confusingly similar to a famous trademark by an unaffiliated entity can by itself create a presumption of bad faith. See, WIPO Overview 3.0, section 3.1.4. As regards the current use in bad faith of the disputed domain names, all of them currently inactive, the Panel considers that bad faith may exist even in cases of so-called "passive holding", as found in the landmark UDRP decision Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003. In the circumstances of this case, the Panel finds that such passive holding does not prevent a finding of bad faith, because of the reputation of the Complainant's trademarks, the failure of the Respondent page 7 to submit a response and provide evidence of actual or contemplated good faith, and the implausibility of any good faith use to which the disputed domain names may be put. See, WIPO Overview 3.0, section 3.3. The Panel finds that the Complainant has presented evidence to satisfy its burden of proof with respect to the issue of whether the Respondent has registered and is using the disputed domain names in bad faith. The Panel therefore finds that paragraph 4(a)(iii) of the Policy has been satisfied. 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 names , , , , and be transferred to the Complainant. /Edoardo Fano/ Edoardo Fano Sole Panelist Date: January 27, 2023
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