Twitter, Inc. v. qwewqqwwqe et. al.
Claim Number: FA2204001992610
Complainant is Twitter, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is qwewqqwwqe et. al. (“Respondent”), Turkey.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <alert-twitter.com>, <home-twitter.com>, <noreply-twitter.com>, <notification-twitter.com>, <twitter-access.com>, <twitter-account.com>, <twitter-act.com>, <twitter-action.com>, <twitter-activity.com>, <twitter-alert.com>, <twitter-app.com>, <twitter-asist.com>, <twitter-assistant.com>, <twitter-assistants.com>, <twitter-cancel.com>, <twitter-central.com>, <twitter-change-settings.com>, <twitter-contact.com>, <twitter-data.com>, <twitter-domain.com>, <twitter-emergency.com>, <twitter-feedback.com>, <twitter-helping.com>, <twitter-important.com>, <twitter-information.com>, <twitter-instructions.com>, <twitter-logins.com>, <twitter-mails.com>, <twitter-managed.com>, <twitter-more.com>, <twitter-myaccount.com>, <twitter-notices.com>, <twitter-passwords.com>, <twitter-processing.com>, <twitter-protection.com>, <twitter-recover.com>, <twitter-refresh.com>, <twitter-register.com>, <twitter-resolve.com>, <twitter-resource.com>, <twitter-restarts.com>, <twitter-safety.com>, <twitter-save.com>, <twitter-secured.com>, <twitter-security-accounts.com>, <twitter-security-sevice.com>, <twitter-security-sevices.com>, <twitter-service-retry.com>, <twitter-services-retry.com>, <twitter-services-security.com>, <twitter-sevice-security.com>, <twitter-signin.com>, <twitter-status.com>, <twitter-supportive.com>, <twitter-supportiy.com>, <twitter-supportly.com>, <twitter-supports.com>, <twitter-verifed.com>, <twitter-verifieds.com>, <twitter-verify-account.com>, <twitter-warning.com>, and <twitter-work.com> registered with Google 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.
The Honorable Neil Anthony Brown QC as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 17, 2022; the Forum received payment on April 17, 2022.
On April 21, 2022, Google LLC confirmed by e-mail to the Forum that the <alert-twitter.com>, <home-twitter.com>, <noreply-twitter.com>, <notification-twitter.com>, <twitter-access.com>, <twitter-account.com>, <twitter-act.com>, <twitter-action.com>, <twitter-activity.com>, <twitter-alert.com>, <twitter-app.com>, <twitter-asist.com>, <twitter-assistant.com>, <twitter-assistants.com>, <twitter-cancel.com>, <twitter-central.com>, <twitter-change-settings.com>, <twitter-contact.com>, <twitter-data.com>, <twitter-domain.com>, <twitter-emergency.com>, <twitter-feedback.com>, <twitter-helping.com>, <twitter-important.com>, <twitter-information.com>, <twitter-instructions.com>, <twitter-logins.com>, <twitter-mails.com>, <twitter-managed.com>, <twitter-more.com>, <twitter-myaccount.com>, <twitter-notices.com>, <twitter-passwords.com>, <twitter-processing.com>, <twitter-protection.com>, <twitter-recover.com>, <twitter-refresh.com>, <twitter-register.com>, <twitter-resolve.com>, <twitter-resource.com>, <twitter-restarts.com>, <twitter-safety.com>, <twitter-save.com>, <twitter-secured.com>, <twitter-security-accounts.com>, <twitter-security-sevice.com>, <twitter-security-sevices.com>, <twitter-service-retry.com>, <twitter-services-retry.com>, <twitter-services-security.com>, <twitter-sevice-security.com>, <twitter-signin.com>, <twitter-status.com>, <twitter-supportive.com>, <twitter-supportiy.com>, <twitter-supportly.com>, <twitter-supports.com>, <twitter-verifed.com>, <twitter-verifieds.com>, <twitter-verify-account.com>, <twitter-warning.com>, and <twitter-work.com> domain names are registered with Google LLC and that Respondent is the current registrant of the names. 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 25, 2022, the Forum served the Complaint and all Annexes, including a Turkish and English language Written Notice of the Complaint, setting a deadline of May 16, 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@alert-twitter.com, postmaster@home-twitter.com, postmaster@noreply-twitter.com, postmaster@notification-twitter.com, postmaster@twitter-access.com, postmaster@twitter-account.com, postmaster@twitter-act.com, postmaster@twitter-action.com, postmaster@twitter-activity.com, postmaster@twitter-alert.com, postmaster@twitter-app.com, postmaster@twitter-asist.com, postmaster@twitter-assistant.com, postmaster@twitter-assistants.com, postmaster@twitter-cancel.com, postmaster@twitter-central.com, postmaster@twitter-change-settings.com, postmaster@twitter-contact.com, postmaster@twitter-data.com, postmaster@twitter-domain.com, postmaster@twitter-emergency.com, postmaster@twitter-feedback.com, postmaster@twitter-helping.com, postmaster@twitter-important.com, postmaster@twitter-information.com, postmaster@twitter-instructions.com, postmaster@twitter-logins.com, postmaster@twitter-mails.com, postmaster@twitter-managed.com, postmaster@twitter-more.com, postmaster@twitter-myaccount.com, postmaster@twitter-notices.com, postmaster@twitter-passwords.com, postmaster@twitter-processing.com, postmaster@twitter-protection.com, postmaster@twitter-recover.com, postmaster@twitter-refresh.com, postmaster@twitter-register.com, postmaster@twitter-resolve.com, postmaster@twitter-resource.com, postmaster@twitter-restarts.com, postmaster@twitter-safety.com, postmaster@twitter-save.com, postmaster@twitter-secured.com, postmaster@twitter-security-accounts.com, postmaster@twitter-security-sevice.com, postmaster@twitter-security-sevices.com, postmaster@twitter-service-retry.com, postmaster@twitter-services-retry.com, postmaster@twitter-services-security.com, postmaster@twitter-sevice-security.com, postmaster@twitter-signin.com, postmaster@twitter-status.com, postmaster@twitter-supportive.com, postmaster@twitter-supportiy.com, postmaster@twitter-supportly.com, postmaster@twitter-supports.com, postmaster@twitter-verifed.com, postmaster@twitter-verifieds.com, postmaster@twitter-verify-account.com, postmaster@twitter-warning.com, postmaster@twitter-work.com. Also on April 25, 2022, the Turkish and English language 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 25, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed The Honorable Neil Anthony Brown QC 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 disputed domain names be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: LANGUAGE OF PROCEEDING
The Panel notes that the Registration Agreement relating to the disputed domain names is written in the Turkish language, thereby prima facie making the language of the proceedings to be Turkish, as the presumption is that the proceedings will be conducted in the language of the registration agreement.
However, the Panel has a discretion under UDRP Rule 11(a) to determine that in all the circumstances the appropriate language of the proceeding should be a different language to that of the registration agreement. 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 contends Respondent’s active domain names resolve or have resolved to websites that are entirely in English, Respondent has been sending correspondence relating to the domain names using the English language, the disputed domain names comprise English words and gTLDs, and Respondent is targeting a United States company. Complainant has submitted that for those reasons the proceeding should be conducted in the English language. The Panel agrees.
Accordingly, Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest the probability that the Respondent is conversant and proficient in the English language. After considering all the circumstances, the Panel decides that the proceeding should be conducted in the English language.
PRELIMINARY ISSUE: MULTIPLE RESPONDENTS
Complainant has submitted that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Accordingly, Complainant submits that the proceeding has been properly filed as it comes within the meaning of Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) which 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 has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Complainant contends that some of the disputed domain names use variations of “ömer faruk üzer” or some other nominal variations as the registrant, all registrants of the domain names are located in Turkey, all domain names utilize the same registrar, multiple domain names were registered on single days, all utilize the same structure within the domain name, many resolve to substantially identical log-in pages, thirty domain names resolve to parking pages in the Turkish language, some have been used to send phishing emails, all domain names make use of a privacy service, all domain names except one use an active host, the email and phone numbers are identical on all but two domain names for the email and four domain names for the phone number.
On the basis of that overwhelming evidence, the Panel finds that the disputed domain names are commonly owned/controlled by a single Respondent who is using multiple aliases. The proceeding therefore comes within the meaning of Paragraph 3 (c) of the Rules.
Accordingly, the Complaint has been properly filed and may proceed on that basis.
A. Complainant
Complainant made the following contentions.
Complainant operates a global information network. Complainant has rights in the TWITTER mark through its registration with the United States Patent and Trademark Office (“USPTO”) Reg. No. 4,422,235, registered Oct. 22, 2013. See Compl. Ex. C. Respondent’s <alert-twitter.com>, <home-twitter.com>, <noreply-twitter.com>, <notification-twitter.com>, <twitter-access.com>, <twitter-account.com>, <twitter-act.com>, <twitter-action.com>, <twitter-activity.com>, <twitter-alert.com>, <twitter-app.com>, <twitter-asist.com>, <twitter-assistant.com>, <twitter-assistants.com>, <twitter-cancel.com>, <twitter-central.com>, <twitter-change-settings.com>, <twitter-contact.com>, <twitter-data.com>, <twitter-domain.com>, <twitter-emergency.com>, <twitter-feedback.com>, <twitter-helping.com>, <twitter-important.com>, <twitter-information.com>, <twitter-instructions.com>, <twitter-logins.com>, <twitter-mails.com>, <twitter-managed.com>, <twitter-more.com>, <twitter-myaccount.com>, <twitter-notices.com>, <twitter-passwords.com>, <twitter-processing.com>, <twitter-protection.com>, <twitter-recover.com>, <twitter-refresh.com>, <twitter-register.com>, <twitter-resolve.com>, <twitter-resource.com>, <twitter-restarts.com>, <twitter-safety.com>, <twitter-save.com>, <twitter-secured.com>, <twitter-security-accounts.com>, <twitter-security-sevice.com>, <twitter-security-sevices.com>, <twitter-service-retry.com>, <twitter-services-retry.com>, <twitter-services-security.com>, <twitter-sevice-security.com>, <twitter-signin.com>, <twitter-status.com>, <twitter-supportive.com>, <twitter-supportiy.com>, <twitter-supportly.com>, <twitter-supports.com>, <twitter-verifed.com>, <twitter-verifieds.com>, <twitter-verify-account.com>, <twitter-warning.com>, and <twitter-work.com> domain names (hereinafter collectively referred to as “Disputed Domain Names”) are identical or confusingly similar to Complainant’s mark as they add one or more hyphens, one or more generic terms, and the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the Disputed Domain Names. Respondent is not commonly known by the disputed domain names, nor has the Complainant authorized or licensed Respondent to use its TWITTER mark in the disputed domain names. Respondent does not use the disputed domain names for any bona fide offering of goods or services, nor a legitimate noncommercial or fair use, but instead is using some of the disputed domain names as active phishing websites or phishing warnings. Respondent is sending phishing emails using at least two of the disputed domain names. Furthermore, some of the other disputed domain names do not resolve to active webpages but instead have an error message.
Respondent registered and uses the Disputed Domain Names in bad faith. Respondent likely phishes for user information and attempts to mislead the public into thinking its website and emails originate from Complainant. Respondent also attempts to create a false impression of association with Complainant. Respondent registered the disputed domain names with actual knowledge of Complainant’s rights in the TWITTER mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
1. Complainant is a United States company that provides a global information network and related goods and services.
2. Complainant has established its trademark rights in the TWITTER mark through its registration with the United States Patent and Trademark Office (“USPTO”) Reg. No. 4,422,235, registered Oct. 22, 2013.
3. Respondent registered the Disputed Domain Names on various dates between February 4, 2022, and April 13, 2022. Multiple disputed domain names were registered by Respondent on each of the following single days including February 4 (2 domain names), March 10 (5 domain names), March 11 (2 domain names), March 20 (7 domain names), March 21 (2 domain names), March 23 (8 domain names), March 25 (2 domain names), March 27 (5 domain names), March 28 (6 domain names), March 29 (3 domain names), March 30 (6 domain names), and April 8 (7 domain names).
4. Respondent is using some of the disputed domain names as active phishing websites or phishing warnings. Respondent is sending phishing emails using at least two of the disputed domain names. Some of the other disputed domain names do not resolve to active webpages but instead have an error message. The evidence shows that Respondent does not have a right or legitimate interest in any of the disputed domain names.
5. The evidence shows that Respondent has registered and used each of the disputed domain names 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 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 first question that arises is whether Complainant has rights in a trademark or service mark on which it may rely. Complainant submits that it has rights in the TWITTER mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) Reg. No. 4,422,235, registered Oct. 22, 2013. See Compl. Ex. C. Registration with the USPTO is generally sufficient in demonstrating rights in a mark under Policy ¶ 4(a)(i). See Target Brands, Inc. v. jennifer beyer, FA 1738027 (Forum July 31, 2017) ("Complainant has rights in its TARGET service mark for purposes of Policy ¶ 4(a)(i) by virtue of its registration of the mark with a national trademark authority, the United States Patent and Trademark Office (“USPTO”).”). Therefore, as the Panel agrees, it finds that Complainant has shown its rights in the TWITTER mark under Policy ¶ 4(a)(i).
The next question that arises is whether the disputed domain names are identical or confusingly similar to Complainant’s TWITTER mark. Complainant argues that Respondent’s Disputed Domain Names are identical or confusingly similar to Complainant’s TWITTER mark. Under Policy ¶ 4(a)(i), adding a hyphen, generic term, and the “.com” gTLD is insufficient in differentiating a disputed domain name from the mark it incorporates. See ADP, LLC. v. Ella Magal, FA 1773958 (Forum Aug. 2, 2017) (“Respondent’s <workforce-now.com> domain name appropriates the dominant portion of Complainant’s ADP WORKFORCE NOW mark and adds a hyphen and the gTLD “.com.” These changes do not sufficiently distinguish the disputed domain name from the ADP WORKFORCE NOW mark.”); see also Dell Inc. v. pushpender chauhan, FA 1784548 (Forum June 11, 2018) (“Respondent merely adds the term ‘supports’ and a ‘.org’ gTLD to the DELL mark. Thus, the Panel finds Respondent’s disputed domain name is confusingly similar to Complainant’s DELL mark per Policy ¶ 4(a)(i).”). The disputed domain names add one or more generic terms relating to account management, support or security, namely: account, accounts, alert, access, account, accounts, act, action, activity, alert, app, asist, assistant, assistants, cancel, central, change, contact, data, domain, emergency, feedback, helping, home, important, information, instructions, logins, mails, managed, more, my, noreply, notification, notices, passwords, processing, protection, recover.com, refresh, register, resolve, resource, restarts, retry, safety, save, secured, security, settings, service, services, signin, status, supportive, supportiy, supportly, supports, verified, verifieds, verify, warning, and work. The disputed domain names also add one or more hyphens and the “.com” gTLD. Therefore, as the Panel agrees, it finds Respondent’s domain names are identical or confusingly similar to Complainant’s TWITTER trademark under Policy ¶ 4(a)(i).
Complainant has thus made out the first of the three elements that it must establish.
It is now well established that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), then 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”).
The Panel finds that Complainant has made out a prima facie case that arises from the following considerations:
(a) Respondent has chosen to take Complainant’s TWITTER mark and to use it in its domain names only adding to the mark one of the generic terms set out above, which do not negate the confusing similarity between the relevant domain name and the trademark;
(b) Respondent registered the respective domain names on the dates set out above;
(c) Respondent is using some of the disputed domain names as active phishing websites or phishing warnings. Respondent is sending phishing emails using at least two of the disputed domain names. Some of the other disputed domain names do not resolve to active webpages but instead have an error message;
(d) The evidence adduced by Complainant shows that Respondent does not have a right or legitimate interest in any of the disputed domain names;
(d) Respondent has engaged in the foregoing activities without the consent or approval of Complainant;
(e) Complainant argues that Respondent is not commonly known by the Disputed Domain Names, nor has Complainant authorized Respondent to use its TWITTER mark. Under Policy ¶ 4(c)(ii), where a response is lacking, relevant WHOIS information may demonstrate that a Respondent is not commonly known by a disputed domain name, while a lack of evidence demonstrating otherwise may affirm a Complainant’s assertion that it never authorized or licensed Respondent to use its mark in the disputed domain name. See SPTC, Inc. and Sotheby’s v. Tony Yeh shiun, FA 1810835 (Forum Nov. 13, 2018) (finding no rights or legitimate interests in the <sothebys.email> domain name where the WHOIS identified Respondent as “Tony Yeh shiun,” Complainant never authorized or permitted Respondent to use the SOTHEBY’S mark, and Respondent failed to submit a response.). The relevant WHOIS records identify Respondent as “qwewqqwwqe et. al.” See Registrar Verification Email. Therefore, as the Panel agrees, it finds Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii);
(f) Complainant argues that Respondent does not use the Disputed Domain Names for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use as Respondent attempts to pass itself off as Complainant in an effort to confuse internet users as to the source of the website. Under Policy ¶¶ 4(c)(i) and (iii), attempting to pass off as a complainant does not constitute a bona fide offering of goods or services, nor any legitimate noncommercial or fair use. See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding the respondent did not use the domain name to make a bona fide offering of goods or services per Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii) where the website resolving from the disputed domain name featured the complainant’s mark and various photographs related to the complainant’s business). Complainant provides screenshots of Respondent’s disputed domain names’ resolving websites, which display Complainant’s mark together with its logo and the words “account management”, “support” and “security”, attempting to confuse users as to the source of the resolving website. See Compl. Ex. A2, A18, A30, and A60. Therefore, as the Panel agrees, it finds that Respondent is not using the disputed domain names for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use;
(g) Complainant argues that Respondent does not use the Disputed Domain Names for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use by inactively holding some of the disputed domain names. Under Policy ¶¶ 4(c)(i) and (iii), inactively holding a disputed domain name is generally not considered a bona fide offering of goods or services, nor a legitimate noncommercial or fair use. See Morgan Stanley v. Francis Mccarthy / Baltec Marine Llc, FA 1785347 (Forum June 8, 2018) (“both Domain Names resolve to a web site that shows the words, ‘Not Found, The requested URL / was not found on this server.’ Inactive holding of a domain name does not qualify as a bona fide offering of goods or services within the meaning of Policy ¶ 4(c)(i), or a legitimate non-commercial or fair use within the meaning of Policy ¶ 4(c)(iii).”). Complainant provides screenshots of the remaining disputed domain names which resolve to either starter pages in Turkish or error messages. See Compl. Ex. A1 – A62. Therefore, as the Panel agrees, it finds Respondent is not using the disputed domain names for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii);
(h)Complainant argues that Respondent does not use the Disputed Domain Names for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use. Under Policy ¶¶ 4(c)(i) and (iii), using a disputed domain name to facilitate a phishing scheme does not constitute a bona fide offering of goods or services nor a legitimate noncommercial or fair use. See Enterprise Holdings, Inc. v. I S / Internet Consulting Services Inc., FA 1785242 (Forum June 5, 2018) (“On its face, the use of a domain name that is confusingly similar to the mark of another in order to facilitate a phishing scheme cannot be described as either a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶4(c)(iii).”). Complainant provides screenshots showing the resolution of the disputed domain names, some of which resolve to websites containing active phishing schemes and phishing warnings with fake login pages displaying Complainant’s mark and the words “account management”, “support”, and “security”. See Compl. Exs. A18 and A60. In addition, several of the disputed domain names have previously resolved to active phishing sites that displayed Complainant’s mark. See Compl. Exs. A5, A13, A25, A34, A35, A38, A42, A43, A52, A57, A58, and A61. Furthermore, Respondent is sending phishing emails from at least two of the disputed domain names. See Compl. Exs. A2 and A30. Therefore, as the Panel agrees, it finds Respondent does not use the disputed domain names for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii).
As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent does not have a right or legitimate interest in any of the disputed domain names.
Complainant has thus made out the second of the three elements that it must establish.
It is clear that to establish bad faith for the purposes of the Policy, Complainant must show that the disputed domain names were registered in bad faith and have been used in bad faith. It is also clear that the criteria set out in Policy ¶ 4(b) for establishing bad faith are not exclusive, but that Complainants in UDRP proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression.
Having regard to those principles, the Panel finds that the disputed domain names were registered and used in bad faith. That is so for the following reasons.
First, Complainant argues that Respondent’s bad faith is demonstrated by its pattern of bad faith registration given the number of domain names in dispute and Respondent’s previous UDRP proceeding that resulted in a bad faith finding against Respondent. Under Policy ¶ 4(b)(ii), where a Respondent has a pattern of bad faith registration, previous panels have found evidence of bad faith registration and use. See Nabisco Brands Co. v. Patron Group, Inc., D2000-0032 (WIPO Feb. 23, 2000) (holding that registration of numerous domain names is one factor in determining registration and use in bad faith); see also Webster Financial Corporation and Webster Bank, National Association v. Above.com Domain Privacy, FA1209001464477 (Forum Nov. 30, 2012) (finding where the record reflected that the respondent had been a respondent in other UDRP proceedings in which it was ordered to transfer disputed domain names to various complainants established a pattern of bad faith registration and use of domain names and stood as evidence of bad faith in the registration and use of domain names under Policy ¶ 4(b)(ii)). Complainant submits that the number of disputed domain names registered in a short time span combined with the previous UDRP decision finding that Respondent acted in bad faith is evidence of bad faith registration and use in this proceeding. Therefore, as the Panel agrees, it finds a pattern of bad faith registration and use under Policy ¶ 4(b)(ii).
Secondly, Complainant argues that Respondent registered and uses the Disputed Domain Names in bad faith by attempting to deceive internet users as to the source of the webpage. Under Policy ¶ 4(b)(iv), there is evidence of bad faith where a respondent uses another’s mark in attempt to confuse users as to the source of the resolving webpage. See Am. Univ. v. Cook, FA 208629 (Forum Dec. 22, 2003) (“Registration and use of a domain name that incorporates another's mark with the intent to deceive Internet users in regard to the source or affiliation of the domain name is evidence of bad faith.”). The Panel notes Complainant’s screenshots of the disputed domain names’ resolving websites, some of which show websites containing active phishing schemes and phishing warnings with fake login pages displaying Complainant’s mark and the words “account management”, “support”, and “security”. See Compl. Exs. A18 and A60. The Panel also notes the screenshots of the disputed domain names which have previously resolved to active phishing sites that displayed Complainant’s mark. See Compl. Exs. A5, A13, A25, A34, A35, A38, A42, A43, A52, A57, A58, and A61. Therefore, as the Panel agrees, it finds that Respondent registered and uses the disputed domain names in bad faith under Policy ¶ 4(b)(iv).
Thirdly, Complainant argues that Respondent registered and uses Disputed Domain Names in bad faith by using the disputed domain names to phish for user information for commercial benefit. Under Policy ¶ 4(a)(iii), using a disputed domain name to phish for information is generally considered bad faith registration and use. See Airbnb, Inc. v. JAMES GRANT, FA1760182 (Forum Dec. 28, 2017) (“Using a misleading email address to defraud unwary customers certainly constitutes bad faith.”). The Panel notes Complainant’s screenshots of the disputed domain names’ websites, some of which resolve to websites containing active phishing schemes and phishing warnings with fake login pages displaying Complainant’s mark and the words “account management”, “support”, and “security”. See Compl. Exs. A18 and A60. The Panel also notes the screenshots of the disputed domain names’ websites which have previously resolved to active phishing sites that displayed Complainant’s mark. See Compl. Exs. A5, A13, A25, A34, A35, A38, A42, A43, A52, A57, A58, and A61. Furthermore, Complainant provides screenshots of at least two disputed domain names’ websites which Respondent used to send phishing emails. See Compl. Exs. A2 and A30. Therefore, as the Panel agrees, it finds Respondent registered and used the disputed domain names in bad faith under Policy ¶ 4(a)(iii).
Fourthly, Complainant argues that Respondent registered the Disputed Domain Names with bad faith actual knowledge of Complainant’s rights in the TWITTER mark. Under Policy ¶ 4(a)(iii), actual knowledge is generally sufficient in demonstrating bad faith, and may be established through incorporation of a well-known/registered mark into a domain name. See United States Postal Service v. Yongkun Wang, FA 1788170 (Forum July 11, 2018) (finding Respondent had actual knowledge of Complainant’s rights in the USPS mark “given the widespread use of Complainant’s mark and the fact that Respondent registered four separate domain names all of which include Complainant’s USPS mark in its entirety”). Therefore, as the Panel agrees, it finds Respondent had actual knowledge of Complainant’s rights in the mark under Policy ¶ 4(a)(iii).
Fifthly, Complainant argues that Respondent’s bad faith is demonstrated by its use of a WHOIS privacy service. Hiding one’s information behind a WHOIS privacy service may contribute to a finding of bad faith registration or use under Policy ¶ 4(a)(iii). See Phoenix Niesley-Lindgren Watt v. Contact Privacy Inc., Customer 0150049249, FA 1800231 (Forum Sept. 6. 2018) (“In a commercial context, using a WHOIS privacy service raises the rebuttable presumption of bad faith registration and use of the disputed domain name. An honest merchant in the marketplace does not generally try to conceal the merchant’s identity. Good faith requires honesty in fact. Respondent did nothing to rebut this presumption of bad faith. Therefore, the Panel will find bad faith registration and use for this reason.”). The Panel notes that Respondent’s information was initially hidden behind a WHOIS privacy service. See WHOIS information. Therefore, as the Panel agrees, it finds Respondent’s use of a privacy service contributes to a finding of bad faith under Policy ¶ 4(a)(iii).
Complainant has thus made out the third of the three elements that it must establish.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <alert-twitter.com>, <home-twitter.com>, <noreply-twitter.com>, <notification-twitter.com>, <twitter-access.com>, <twitter-account.com>, <twitter-act.com>, <twitter-action.com>, <twitter-activity.com>, <twitter-alert.com>, <twitter-app.com>, <twitter-asist.com>, <twitter-assistant.com>, <twitter-assistants.com>, <twitter-cancel.com>, <twitter-central.com>, <twitter-change-settings.com>, <twitter-contact.com>, <twitter-data.com>, <twitter-domain.com>, <twitter-emergency.com>, <twitter-feedback.com>, <twitter-helping.com>, <twitter-important.com>, <twitter-information.com>, <twitter-instructions.com>, <twitter-logins.com>, <twitter-mails.com>, <twitter-managed.com>, <twitter-more.com>, <twitter-myaccount.com>, <twitter-notices.com>, <twitter-passwords.com>, <twitter-processing.com>, <twitter-protection.com>, <twitter-recover.com>, <twitter-refresh.com>, <twitter-register.com>, <twitter-resolve.com>, <twitter-resource.com>, <twitter-restarts.com>, <twitter-safety.com>, <twitter-save.com>, <twitter-secured.com>, <twitter-security-accounts.com>, <twitter-security-sevice.com>, <twitter-security-sevices.com>, <twitter-service-retry.com>, <twitter-services-retry.com>, <twitter-services-security.com>, <twitter-sevice-security.com>, <twitter-signin.com>, <twitter-status.com>, <twitter-supportive.com>, <twitter-supportiy.com>, <twitter-supportly.com>, <twitter-supports.com>, <twitter-verifed.com>, <twitter-verifieds.com>, <twitter-verify-account.com>, <twitter-warning.com>, and <twitter-work.com> domain names be TRANSFERRED from Respondent to Complainant.
The Honorable Neil Anthony Brown QC
Panelist
Dated: May 27, 2022
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