The Complainant is Multi Media, LLC, United States of America (the “United States”), represented by Walters Law Group, United States.
The Respondent is Whois Privacy Protection Service, Inc., United States / Rheigne Cruz, Philippines.
The disputed domain name <chaturbateteam.com> is registered with eNom, LLC. (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 20, 2019. On July 22, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 22, 2019, 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 July 25, 2019, 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 July 29, 2019.
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 Respondent of the Complaint, and the proceedings commenced on August 5, 2019. In accordance with the Rules, paragraph 5, the due date for Response was August 25, 2019. The Center received an informal communication from the Respondent on July 25, 2019. The Respondent did not submit any formal Response.
The Center appointed Marilena Comanescu as the sole panelist in this matter on August 30, 2019. 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 Complainant is a United States-based company that owns and operates the website at “www.chaturbate.com”, providing streaming of adult content, such as video, visual and audio-visual material and other adult entertainment services to its users, via the World Wide Web.
The Complainant holds trademark registrations for CHATURBATE, such as the United States trademark registered with the United States Patent And Trademark Office (USPTO) on February 12, 2013, under number 4,288,943, in classes 38 and 42.
The Complainant operates the website at “www.chaturbate.com” since February 26, 2011, and, according to Exhibit H to Complaint, such website was listed in 2019 as the 138th most popular website for overall traffic on the World Wide Web.
The disputed domain name <chaturbateteam.com> was registered on April 25, 2019, and, according to the evidence provided in the Complaint and not rebutted by the Respondent, it was used to send fraudulent email communications, pretending to be a Complainant’s customer support representative in an apparent phishing scheme for monetary reasons or other nefarious purposes. The Complainant claims it has received numerous inquiries from its users about the fraudulent customer service correspondence from Respondent.
The Complainant contends that the disputed domain name is confusingly similar to its distinctive trademark CHATURBATE, that the Respondent has no rights or legitimate interests in the disputed domain name, and that the Respondent registered and is using the disputed domain name in bad faith.
The Respondent did not reply to the Complainant’s contentions.
In view of the Respondent’s default, the discussion and findings will be based upon the contentions in the Complaint and any reasonable position that can be attributable to the Respondent. Under paragraph 4(a) of the Policy, a complainant can only succeed in an administrative proceeding under the Policy if the following circumstances are met:
(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 the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
The Panel will further analyze the potential concurrence of the above circumstances.
The Complainant holds rights in the CHATURBATE trademark.
The disputed domain name <chaturbateteam.com> incorporates the Complainant’s trademark CHATURBATE in its entirety, with the addition of the dictionary term “team”. However, such addition does not prevent a finding of confusing similarity as the Complainant’s trademark is clearly recognizable within the disputed domain name.
Numerous UDRP panels have considered that the addition of other terms (whether descriptive, pejorative, meaningless or otherwise) to trademarks in a domain name is not sufficient to escape a finding of confusing similarity. See section 1.8 of theWIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).
Further, it is well established in decisions under the UDRP that the generic Top-Level Domain (“gTLD”) (e.g., “.net”, “.info”, “.com”, “.org”) may typically be disregarded for the purposes of consideration of confusing similarity between a trademark and a domain name.
Given the above, the Panel finds that the disputed domain name <chaturbateteam.com> is confusingly similar to the Complainant’s trademark CHATURBATE, pursuant to the Policy, paragraph 4(a)(i).
The Complainant asserts that the Respondent does not hold any trademark rights, license or authorization whatsoever to use the mark CHATURBATE, that the Respondent is not commonly known by the disputed domain name, and that the Respondent has not used the disputed domain name in connection with a legitimate noncommercial or fair use, or a bona fide offering of goods and services.
Under the Policy, “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 theWIPO Overview 3.0.
The Respondent has not replied to the Complainant’s contentions and has not come forward with relevant evidence to rebut the Complainant’s prima facie case.
There is nothing in the record suggesting that the Respondent has ever been commonly known by the disputed domain name.
The Respondent has used the disputed domain name in connection with email communications for fraudulent purposes pretending to be a Complainant’s customer support representative in an apparent phishing scheme, in an attempt to obtain valuable customer information for its own fraudulent purposes. This is definitely not an activity falling under the circumstances listed by paragraph 4(c) of the UDRP as demonstrating the Respondent’s rights or legitimate interests in the disputed domain name.
Consequently, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name <chaturbateteam.com>, pursuant to the Policy, paragraph 4(a)(ii).
The Complainant holds registered trademark rights since 2013 and it has gained substantial goodwill in its field of activity.
The disputed domain name was created in 2019 and incorporates the Complainant’s mark with an additional dictionary term.
For the above, the Panel finds that the disputed domain name was registered in bad faith, knowing the Complainant and targeting its trademark.
At the time of filing the Complaint, the disputed domain name did not resolve to an active website. However, according to the evidence presented by the Complainant and unrefuted by the Respondent, prior to the present proceeding, the Respondent was using the disputed domain name in connection with email communications for phishing and other fraudulent purposes in an attempt to obtain confidential information from the Complainant’s customers. This is a classic phishing scheme and establishes bad faith use and registration.
UDRP panels have consistently held that the use of a domain name other than to host a website may constitute bad faith. Such purposes include sending email, phishing, or identity theft. Many of such cases, as well as the present case, involve the respondent’s use of the disputed domain name to send deceptive emails to obtain sensitive or confidential information from complainant’s actual or prospective clients. See section3.4 of theWIPO Overview 3.0.
Furthermore, the Respondent registered the disputed domain name under a proxy service and refused to participate in the present proceeding in order to provide arguments in its favor. No reaction was also received to the Complainant’s Cease and Desist letter sent prior to commencing the present proceeding. Having in view the other circumstances of this case, such facts constitute further evidence of bad faith behavior.
For all the above reasons, the Panel finds that the Respondent registered and is using the disputed domain name in bad faith, pursuant to the Policy, paragraph 4(a)(iii).
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 <chaturbateteam.com> be transferred to the Complainant.
Date: September 9, 2019
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