Twitter, Inc. v. ahmet baran / salih yayla / ahmet şimşek / handan topaç / orhan sazan / huseyin taşşak / soner camlı / burhan kor / Güven turna / Ömer faruk üzer / burhan torun
Claim Number: FA2204001991016
Complainant is Twitter, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is ahmet baran / salih yayla / ahmet şimşek / handan topaç / orhan sazan / huseyin taşşak / soner camlı / burhan kor / Güven turna / Ömer faruk üzer / burhan torun (“Respondent”), Turkey.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <twitter-assistance.com>, <twitter-circumstance.com>, <twitter-control.com>, <twitter-manage.com>, <twitter-management.com>, <twitter-newaccess.com>, <twitter-retry.com>, <twitter-setting.com>, <twitter-settings.com>, <twitter-supporting.com>, and <twitter-update.com>, registered with Google LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 5, 2022; the Forum received payment on April 5, 2022. The Complaint was received in English.
On April 5, 2022, Google LLC confirmed by e-mail to the Forum that the <twitter-assistance.com>, <twitter-circumstance.com>, <twitter-control.com>, <twitter-manage.com>, <twitter-management.com>, <twitter-newaccess.com>, <twitter-retry.com>, <twitter-setting.com>, <twitter-settings.com>, <twitter-supporting.com>, and <twitter-update.com> domain names are registered with Google LLC and that Respondent is the current registrant of the name. Google LLC has verified that Respondent is bound by the Google 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 April 6, 2022, the Forum served the English language Complaint and all Annexes, including a Turkish and English Written Notice of the Complaint, setting a deadline of April 26, 2022 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@twitter-assistance.com, postmaster@twitter-circumstance.com, postmaster@twitter-control.com, postmaster@twitter-manage.com, postmaster@twitter-management.com, postmaster@twitter-newaccess.com, postmaster@twitter-retry.com, postmaster@twitter-setting.com, postmaster@twitter-settings.com, postmaster@twitter-supporting.com, postmaster@twitter-update.com. Also on April 6, 2022, the Turkish and English Written Notice of the Complaint, notifying Respondent of the e-mail 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 May 2, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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 names be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: MULTIPLE RESPONDENTS
Complainant alleges that the disputed domain names are effectively controlled by the same person or entity, operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” Complainant contends that the disputed domain names are controlled by the same entity since the domains have the same registrar and host, were registered around the same time, and use the same structure. In the absence of any assertion to the contrary, the Panel finds that the named respondents are one in the same and shall be jointly referred to as Respondent.
Preliminary Issue: Language of Proceeding
Complainant alleges that, because Respondent is conversant in English, the proceeding should be conducted in English. The Panel has the discretion under UDRP Rule 11(a) to determine the appropriate language of the proceedings, taking into consideration the particular circumstances. See FilmNet Inc. v. Onetz, FA 96196 (Forum Feb. 12, 2001) (finding it appropriate to conduct the proceeding in English under Rule 11, despite Korean being designated as the required language in the registration agreement because the respondent submitted a response in English after receiving the complaint in Korean and English). Complainant argues that the proceedings should be in English since the disputed domain names resolve to websites in English, Respondent has sent phishing correspondence in English, and the domain names consist of English terms. The Panel agrees and determines that the proceeding will be conducted in English.
A. Complainant
1. Respondent’s <twitter-assistance.com>, <twitter-circumstance.com>, <twitter-control.com>, <twitter-manage.com>, <twitter-management.com>, <twitter-newaccess.com>, <twitter-retry.com>, <twitter-setting.com>, <twitter-settings.com>, <twitter-supporting.com>, and <twitter-update.com> domain names (the “disputed domain names”) are confusingly similar to Complainant’s TWITTER mark.
2. Respondent does not have any rights or legitimate interests in the disputed domain names.
3. Respondent registered and uses the disputed domain names in bad faith.
B. Respondent did not file a Response.
Complainant, Twitter, Inc., operates a real-time global information network. Complainant holds a registration for the TWITTER mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,619,911, registered May 12, 2009).
Respondent registered the disputed domain names were registered as follows:
<twitter-supporting.com> on March 10, 2022;
<twitter-newaccess.com> on March 22, 2022;
<twitter-assistance.com> on March 20, 2022;
<twitter-control.com>, <twitter-setting.com>, and <twitter-settings.com> on March 25, 2022;
<twitter-manage.com>, <twitter-management.com>, <twitter-retry.com>, and <twitter-update.com> on March 26, 2022; and
<twitter-circumstance.com> on March 31, 2022.
Respondent uses the disputed domain names to resolve to websites that pass off as Complainant and are used in a phishing scheme, or are inactive.
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 Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The Panel finds that Complainant has rights in the TWITTER mark based on registration of the mark with the USPTO. See Spotify AB v. Olodo Glory / Sutherland, FA 2106001951577 (Forum July 15, 2021) (“Complainant’s registration of the SPOTIFY mark with the USPTO sufficiently demonstrates Complainant’s rights in a mark under Policy ¶ 4(a)(i).”)
The disputed domain names all use Complainant’s TWITTER mark and simply add a hyphen, generic terms, and the “.com” gTLD. The addition of a hyphen, generic terms, and a gTLD to a mark do not distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See Skechers U.S.A., Inc. and Skechers U.S.A., Inc. II v. Svensson Viljae, FA 1784650 (Forum June 1, 2018) (finding confusing similarity where “[t]he disputed domain name <skechers-outlet.com> adds a hyphen and the generic term ‘outlet’ to Complainant's registered SKECHERS mark, and appends the ‘.com’ top-level domain.”); see also Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy). Thus, the Panel finds that the disputed domain names are confusingly similar to Complainant’s TWITTER mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant argues that Respondent does not have rights or legitimate interests in the disputed domain names because Respondent is not commonly known by the domain names and Complainant has not licensed Respondent to use the TWITTER mark. The WHOIS information lists “ahmet baran / salih yayla / ahmet şimşek / handan topaç / orhan sazan / huseyin taşşak / soner camlı / burhan kor / Güven turna / Ömer faruk üzer / burhan torun.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain names, and thus has no rights under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. Timothy Mays aka Linda Haley aka Edith Barberdi, FA1504001617061 (Forum June 9, 2015) (concluding that the respondent was not commonly known by the <amazondevice.org>, <amazondevices.org> and <buyamazondevices.com> domain names under Policy ¶ 4(c)(ii), as the pertinent WHOIS information identified “Timothy Mays,” “Linda Haley,” and “Edith Barberdi” as registrants of the disputed domain names); see also Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
Complainant also argues that Respondent does not use the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use, as the domain names either resolve to websites that pass off as Complainant and are used in a phishing scheme, or are inactive. Using a disputed domain name to pass off as a complainant and engage in phishing is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (”Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”); see also Microsoft Corporation v. Terrence Green / Whois Agent / Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding the respondent’s use of the disputed domain names to send fraudulent emails purportedly from agents of complainant to be neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)). Inactive holding of a disputed domain name also does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Dell Inc. v. link growth / Digital Marketing, FA 1785283 (Forum June 7, 2018) (“Respondent’s domain names currently display template websites lacking any substantive content. The Panel finds that Respondent has does not have rights or legitimate interests with respect of the domain name per Policy ¶¶ 4(c)(i) or (iii).”). Complainant provides screenshots showing that some of the disputed domain names resolve to websites that pass off as Complainant’s login page, and some resolve to inactive parked pages in Turkish or with error messages. Complainant also provides copies of emails sent using some of the disputed domain names in which Respondent passes off as Complainant and phishes for information. The Panel finds that none of these uses of the disputed domain names constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus Respondent has no rights under Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent uses some of the disputed domain names to pass off as Complainant in furtherance of a phishing scheme. Using a disputed domain name to pass off as a complainant as part of a phishing scheme is evidence of bad faith under Policy ¶¶ 4(b)(iii) and (iv). See Eastman Chemical Company v. Lukas Moris, FA 1956649 (Forum Aug. 23, 2021) (“Complainant first argues Respondent registered and uses the disputed domain name in bad faith because Respondent uses the disputed domain name to impersonate Complainant in furtherance of a phishing scheme. A domain name that is used in connection with a phishing scheme over email may be evidence of a domain name registered and used in bad faith under Policy ¶¶ 4(b)(iii) and (iv).”); see also Bittrex, Inc. v. Caroline Alves Maia, FA 1796113 (Forum Aug. 6, 2018) (finding the respondent registered and used the domain name in bad faith per Policy ¶ 4(b)(iv) because the respondent used the disputed domain name to present users with a website that was “virtually identical, with the same color scheme, the same layout and the same substantive content” and used the website to gain access to users’ cryptocurrency accounts). Accordingly, the Panel finds bad faith under Policy ¶¶ 4(b)(iii) and (iv).
Complainant contends that Respondent’s inactive holding of some of the disputed domain names evinces bad faith under Policy ¶ 4(a)(iii). The Panel agrees and finds bad faith registration and use under Policy ¶ 4(a)(iii). See CommScope, Inc. of North Carolina v. Zhuang Yan / WANGYONG, FA 1764026 (Forum Feb. 14, 2018) (“Respondent’s domain names do not have resolving websites. Using a domain name to resolve to an inactive website (or no website at all) indicates bad faith registration and use.”)
Complainant also argues that Respondent registered the disputed domain names with actual knowledge of Complainant’s rights in the TWITTER mark, based on Respondent’s efforts to pass off as Complainant. The Panel agrees, noting the fame of the TWITTER mark, and finds further bad faith under Policy ¶ 4(a)(iii). See Chevron Intellectual Property LLC v. Eileen Boob, FA 1861000 (Forum Oct. 4, 2019) (“Complainant shows that Respondent uses the disputed domain name to pass off as Complainant. The Panel finds that this is evidence that Respondent knew of Complainant’s rights in the CHEVRON mark when it registered the disputed domain name, and constitutes bad faith under Policy ¶ 4(a)(iii).”); see also Yahoo! Inc. v. Butler, FA 744444 (Forum Aug. 17, 2006) (finding bad faith where the respondent was “well-aware” of the complainant’s YAHOO! mark at the time of registration).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <twitter-assistance.com>, <twitter-circumstance.com>, <twitter-control.com>, <twitter-manage.com>, <twitter-management.com>, <twitter-newaccess.com>, <twitter-retry.com>, <twitter-setting.com>, <twitter-settings.com>, <twitter-supporting.com>, and <twitter-update.com> domain names be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: May 3, 2022
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