Activision Publishing, Inc. v. pratik shrestha
Claim Number: FA2203001987904
Complainant is Activision Publishing, Inc. ("Complainant"), represented by Adam D. Mandell of Millen, White, Zelano & Branigan, P.C., Virginia, USA. Respondent is pratik shrestha ("Respondent"), Nepal.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <codwarzonemobile.com>, registered with GoDaddy.com, LLC.
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 March 11, 2022; the Forum received payment on March 11, 2022.
On March 14, 2022, GoDaddy.com, LLC confirmed by email to the Forum that the <codwarzonemobile.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 March 21, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 11, 2022 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@codwarzonemobile.com. Also on March 21, 2022, 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 April 18, 2022, 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 is a developer and worldwide distributor of interactive entertainment. Complainant's portfolio includes the CALL OF DUTY franchise, which has been the leading military-themed first-person shooter game series for nearly two decades. In 2019 and 2020, Complainant released CALL OF DUTY: MOBILE and CALL OF DUTY: WARZONE, each of which now has more than 100 million players. Complainant owns numerous trademark registrations in the United States and around the world for marks containing the words CALL OF DUTY alone or in combination with other wording or design elements. Complainant owns a European Union trademark registration for CALL OF DUTY WARZONE; its application to register that mark in the United States is currently pending. In addition, Complainant states that COD has been widely used and recognized as a shorthand reference to CALL OF DUTY since 2003, and on that basis asserts common law trademark rights in COD.
The disputed domain name <codwarzonemobile.com> was registered in April 2021. Upon commencement of this proceeding, the registrar identified Respondent as the registrant of the domain name. The name is being used for a website that displays Complainant's CALL OF DUTY WARZONE mark and purports to offer a mobile version of CALL OF DUTY WARZONE for download. Complainant states that there currently is no mobile version of CALL OF DUTY: WARZONE, and alleges that Respondent's intent is to phish for information from users, disseminate malware, or engage in other fraudulent and harmful activity. Complainant states further that Respondent is not commonly known by the disputed domain name and is not an agent or licensee of Complainant.
Complainant contends on the above grounds that the disputed domain name <codwarzonemobile.com> is confusingly similar to its CALL OF DUTY, CALL OF DUTY: WARZONE, and COD marks; 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").
Complainant owns trademark registrations for CALL OF DUTY and CALL OF DUTY: WARZONE. Complainant also asserts common law rights in COD, and has substantiated that claim with evidence that COD is widely used and recognized as a shortened form of CALL OF DUTY. The disputed domain name <codwarzonemobile.com> incorporates COD and a substantial portion of the CALL OF DUTY: WARZONE mark, and obviously is intended as a reference to Complainant's CALL OF DUTY franchise and CALL OF DUTY: WARZONE title. The Panel therefore considers it to be confusingly similar to marks in which Complainant has rights. See, e.g., Activision Publishing, Inc. v. Zachariah Russell, FA 1917597 (Forum Nov. 20, 2020) (finding <codmw.org> identical or confusingly similar to commonly used abbreviations for Complainant's CALL OF DUTY and MODERN WARFARE marks); Morgan Stanley v. 哈 哈 / 哈哈, FA 1986530 (Forum Apr. 5, 2022) (finding <msbtcms.com> confusingly similar to MS, commonly used initialism for registered MORGAN STANLEY mark); Cartoon Network LP, LLLP v. SFi-R.com, FA 297930 (Forum Sept. 3, 2004) (finding <athf.com> identical to commonly used abbreviation for registered AQUA TEEN HUNGER FORCE mark).
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 an abbreviated form of one of Complainant's marks and part of another of Complainant's marks, and it is being used for a website that attempts to pass off as Complainant and purports to offer a nonexistent version of one of Complainant's products.
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 portions of Complainant's marks and is using it for a website that attempts to pass off as Complainant and purports to offer a nonexistent version of one of Complainant's products. Complainant alleges, and the Panel is inclined to agree, that Respondent's intent is to phish for information from users, disseminate malware, or engage in other fraudulent and harmful activity. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., Institutional Shareholder Services Inc. v. Milen Radumilo, FA 1921738 (Forum Jan. 18, 2021) (finding bad faith based upon use of domain name for phishing scheme and to disseminate malware); Bittrex, Inc. v. Tuomo, FA 1812163 (Forum Nov. 26, 2018) (same). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <codwarzonemobile.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: April 19, 2022
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