Licensing IP International S.à.r.l. v. Wiley Walters
Claim Number: FA2101001930425
Complainant is Licensing IP International S.à.r.l. ("Complainant"), Luxembourg, represented by ROBIC, LLP, Canada. Respondent is Wiley Walters ("Respondent"), USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <brazzersnetwork.pro>, registered with Danesco Trading Ltd.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 30, 2021; the Forum received payment on January 30, 2021.
On February 2, 2021, Danesco Trading Ltd. confirmed by email to the Forum that the <brazzersnetwork.pro> domain name is registered with Danesco Trading Ltd. and that Respondent is the current registrant of the name. Danesco Trading Ltd. has verified that Respondent is bound by the Danesco Trading Ltd. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On February 2, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 22, 2021 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@brazzersnetwork.pro. Also on February 2, 2021, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On February 26, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules, and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant, a Luxembourg corporation, operates various websites that aggregate adult video content, including BRAZZERS.com. According to Alexa Internet traffic analysis data, BRAZZERS.com ranks among the top 1000 websites worldwide by overall visitors and pageviews. Complainant also cites Google Analytics data indicating that the BRAZZERS.com website has approximately 820,000 to 1.39 million daily users. Complainant owns trademark registrations for BRAZZERS and related marks in the United States, Canada, the European Union, and other jurisdictions, in both standard character form and otherwise, with registration dates as early as 2008.
Respondent registered the disputed domain name <brazzersnetwork.pro> in September 2019. The domain name is being used for a website containing content similar to that provided by Complainant's BRAZZERS.com website, along with advertising links. Complainant states that most of the videos on Respondent’s website were produced and released by Complainant or its competitors. Complainant states further that Respondent is not commonly known by the disputed domain name, and that Complainant has not allowed or authorized Respondent to use its marks. Respondent’s identity was apparently concealed by a privacy shield prior to the commencement of this proceeding. Complainant cites numerous inconsistencies in the registration data that was disclosed by the registrar in connection with this proceeding, suggesting that it is likely fictitious.
Complainant contends on the above grounds that the disputed domain name <brazzersnetwork.pro> is confusingly similar to its BRAZZERS mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a), and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <brazzersnetwork.pro> incorporates Complainant's registered BRAZZERS trademark, adding the generic term "network" and the ".pro" top-level domain. These alterations do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Licensing IP International S.à.r.l. v. Anton Stilov, FA 1916317 (Forum Nov. 12, 2020) (finding <brazzershd.pro> identical or confusingly similar to BRAZZERS); Ripple Labs Inc. v. Ngyen Ngoc Phuong Thao, FA 1734926 (Forum July 10, 2017) (finding <ripplenetwork.net> confusingly similar to RIPPLE). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization, and it is being used for a commercial website that provides services similar to those provided by Complainant. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Licensing IP International S.à.r.l. v. Vladislav Ivantsov, FA 1915714 (Forum Nov. 9, 2020) (finding lack of rights or interests arising from website offering adult videos in competition with complainant).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent registered a domain name incorporating Complainant's mark and is using it for a commercial website that provides directly competing services (possibly including unauthorized copies of Complainant's own content). Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., See, e.g., Licensing IP International S.à.r.l. v. Vladislav Ivantsov, supra (finding bad faith registration and use based upon use of confusingly similar domain name to pass off as complainant and offer competing or illicit products). In addition, the Panel notes that Respondent appears to have used a privacy registration service and provided false underlying registration data in efforts to conceal its identity, providing additional support for the inference of bad faith. See, e.g., Licensing IP International S.à.r.l. v. Harold Haynes, FA 1897515 (Forum June 24, 2020). The Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <brazzersnetwork.pro> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: March 1, 2021
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