WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Aleksandr Danilchuk v. WhoisGuard Protected, WhoisGuard, Inc. / Vadym Didenko
Case No. D2020-1981
1. The Parties
The Complainant is Aleksandr Danilchuk, Russian Federation, represented by Berlin Evgeny, Russian Federation.
The Respondent is WhoisGuard Protected, WhoisGuard, Inc., Panama / Vadym Didenko, Ukraine.
2. The Domain Name and Registrar
The disputed domain name <igroutka.net> is registered with NameCheap, Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 29, 2020. On July 29, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 29, 2020, 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 August 11, 2020, 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 August 14, 2020. On August 15, 2020, the Respondent filed an informal email communication.
The Center verified that the Complaint [together with the amendment to the Complaint/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 19, 2020. In accordance with the Rules, paragraph 5, the due date for Response was September 8, 2020. The Respondent did not submit a formal Response, but sent four informal email communications to the Center on August 15, August 19, September 23, and October 1, 2020. On September 17, 2020, the Complainant filed a supplementary submission addressing the communications sent by the Respondent.
The Center appointed Assen Alexiev as the sole panelist in this matter on September 24, 2020. 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 decided to accept the submissions of the Respondent dated August 15, August 19 and September 23, 2020, and the Complainant’s supplementary submission dated September 17, 2020, as they deal with the alleged agreement between the Parties for the transfer of the disputed domain name from the Complainant to the Respondent, which argument was raised by the Respondent following the submission of the Complaint.
On October 13, 2020, the Panel issued its Procedural Order No.1 in the proceeding, by which it invited the Respondent to provide by October 16, 2020 the evidence referred to in its email communication dated August 15, 2020 and/or any other evidence of the Respondent’s claimed transaction with the Complainant, and invited the Complainant to make a further filing commenting on the evidence produced by the Respondent by October 21, 2020. On October 15, 2020, the Respondent submitted a document in response the Procedural Order No.1, and on October 21, 2020, the Complainant submitted a supplement to the Complaint accompanied by additional evidence.
4. Factual Background
The Complainant was the registrant of the disputed domain name in the period between June 8, 2016, and July 27, 2020, and used it for a website called „ИгроУтка – бесплатные онлайн игры“ (in English: “IgroUtka – free online games”) that offered various online games to visitors and displayed Google AdSense advertisements. In this period, the website at the disputed domain name attracted more than 19,900,000 visitors, including more than 12,100,000 visitors in 2019.
On July 27, 2020, the Respondent was registered as registrant of the disputed domain name. At the time of filing of the Complaint, the website at the disputed domain name continued to feature various online games and advertising.
5. Parties’ Contentions
A. Complainant
The Complainant submits that the disputed domain name was stolen from him on July 23, 2020, when someone obtained access to the administrative panel of Regtime RU (the then registrar for the disputed domain name), and transferred it to the Registrar by presenting forged copies of the Complainant’s Russian and Ukrainian passports. The Complainant states that he also lost control over his Mail.ru e-mail account, which was indicated as a contact email address for the registration of the disputed domain name. The person who took control over the disputed domain name then contacted the Complainant, and they discussed a potential deal for the return to the Complainant of the control over the disputed domain name. According to the Complainant, it was not possible to fully record this correspondence, because the other party created a secret chat with a built-in function that deleted messages automatically within a few seconds after they were read. The Complainant also submits that an unknown person got access to the database and the website files for the Complainant’s website, and managed to download an incomplete copy of the website which it then associated to the disputed domain name.
The Complainant states that he has no registered trademark but has unregistered trademark rights in the designation “IgroUtka” as a result of his use of the disputed domain name for more than four years for a website offering various browser games, during which period the website attracted millions of visitors. The Complainant used the website to generate profit by placing Google AdSense advertising blocks on it. According to the Complainant, the word “igroutka” is fictitious and is not descriptive in relation to the services provided by the Complainant.
According to the Complainant, the Respondent has no rights or legitimate interests in respect of the disputed domain name, as it has not been engaged in similar activities with the use of an identical or similar name before becoming the registrant of the disputed domain name. The Respondent has completely copied the content of the Complainant’s website and has not made any material additions or corrections into the content but has only placed advertising blocks on it, and now uses the disputed domain name and the related website content created and owned by the Complainant for the illegal receipt of profit without having made any efforts and investments in the development of the website.
The Complainant contends that the disputed domain name was registered and is being used in bad faith. The Respondent has no evidence of the Complainant’s consent for the transfer of the disputed domain name and the content placed on the associated website, or of the existence of any relations between him and the Complainant, which might involve the transfer of any rights to the disputed domain name and the website content to the Respondent. The Complainant points out that the Respondent has copied the website content developed by the Complainant without permission from the latter, and has not placed any information on the associated website that the control over the disputed domain name had passed to him, as a result of which users would be misled to believe that the website is still owned by the Complainant.
In its unsolicited supplementary submission, the Complainant states that the disputed domain name was stolen by hacking the Complainant’s Mail.ru email account, and admits that any letters could have been sent from this account without the knowledge of the Complainant. It points out that there is no confirmation for the sending of the email message presented by the Respondent with its submission of August 19, 2020.
With its supplement to the Complaint, submitted on October 21, 2020 pursuant to Procedural Order No.1, the Complainant disputed the authenticity of the “Receipt” submitted by the Respondent and of the copy of its passport submitted by the Respondent to the registrar Regtime RU, and submitted copies of what it claims to be its authentic Russian and Ukrainian passports and an expert witness statement containing a conclusion that the handwriting and the signature in the “Receipt” have not been written by the Complainant, but by a different person.
B. Respondent
The Respondent did not file a formal Response. On August 15, 2020, it filed with the Center an informal email communication in the following terms:
“Hello!
On July 18, 2020, I contacted Alexander Danilchuk with offers to buy the igroutki.net project.
We agreed to meet with him, at the meeting we agreed on a price, we redistributed the funds, and he gave us a domain name.
I am ready to cooperate with you, provide evidence and provide the following documents:
- certificate of withdrawal from the bank
- receipt
- correspondence with Alexander.”
This communication contained no attachments.
On August 19, 2020, the Respondent sent an email communication to the Center containing as an attachment a screenshot of the following email message in Russian with subject „Благодарочка“ (in English: “Appreciation letter”) dated July 23, 2020 and sent from the Complainant’s Mail.ru email account to the Respondent’s email address:
“Привет еще раз, по твоей просьбе пишу
тебе письмо благодарности! Спасибо,
что купил проект igroutka.net !
Если будут вопросы, то пиши всегда
рад
--
Александр Данильчук.“
(English translation:
“Greetings once again, as per your request I write
you an appreciation letter! Thank you
for buying the igroutka.net project !
If questions arise, please write will always
be happy
--
Aleksandr Danilchuk.”)
In response to the Panel’s Procedural Order of October 13, 2020, on October 15, 2020 the Respondent submitted a scanned copy of a handwritten document called “Receipt” containing statements by what is alleged to be the Complainant and of the Respondent, by which the signatories confirm the sale of the disputed domain name to the Respondent, the receipt by the Complainant of the amount of USD 300,000 as sale price, and the delivery of the authorization codes for the disputed domain name and the website files to the Respondent.
6. Discussion and Findings
The Complainant contends that the disputed domain name was stolen from him by hacking into his Mail.ru email account and by using forged copies of his identification documents, and states that this email account may have been used for the sending of emails without his knowledge and consent. In its supplementary submission, the Complainant contends that the “Receipt” submitted by the Respondent is not authentic and has not been written and signed by the Complainant, but by a different person, and offers an expert witness statement supporting this contention.
The Respondent maintains that the Parties have concluded a deal by which the Complainant has sold the disputed domain name and the files on the associated website to the Respondent. The Respondent submits a printout of a short email message allegedly sent by the Complainant to the Respondent, by which the sender thanks the Respondent for buying the Igroutka.net project, and a “Receipt” whose signatories confirm the sale of the disputed domain name to the Respondent, the receipt by the Complainant of the amount of USD 300,000 as sale price, and the delivery of the authorization codes for the disputed domain name and the website files to the Respondent.
The contentions of the Parties raise the issue of whether this is a dispute to be decided under the Policy. The Policy is designed to combat cybersquatting – the abusive registration and use of a domain name that is identical or confusingly similar to a trademark in which the Complainant has rights.
This dispute however concerns the question of who is the rightful owner of the disputed domain name and whether the Respondent has acquired it legitimately or through forgery and theft. The Policy was not designed to decide whether a domain name was taken with or without the Complainant’s knowledge or consent and to deal with allegations of forgery and theft, as there is generally no hearing available and no opportunity to examine witnesses or to conduct cross-examination. Simply put, this is not the appropriate forum to deal with these issues. See in this regard the decisions in Jimmy Alison v. Finland Property Services (Pty) Ltd.,
WIPO Case No. D2008-1141, and in Andrew Prince v. Registrant [3197190]: Sven Echternach / Moniker Privacy Services (2579748),WIPOCase No. D2010-1661, as well as the summary in section 4.14.6 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition.
Accordingly, the Complaint must be dismissed, which in no way restricts the pursuance by the Complainant of the matter before the courts of competent jurisdiction.
7. Decision
For the foregoing reasons, the Complaint is denied.
Assen Alexiev
Sole Panelist
Date: October 27, 2020
