Twilio Inc. v. bopbh brown
Claim Number: FA2207002005610
Complainant is Twilio Inc. (“Complainant”), represented by Tsan Abrahamson of Cobalt LLP, California, USA. Respondent is bopbh brown (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <twilio-okta.com>, registered with Porkbun 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 25, 2022; the Forum received payment on July 25, 2022.
On July 28, 2022, Porkbun LLC confirmed by e-mail to the Forum that the <twilio-okta.com> domain name is registered with Porkbun LLC and that Respondent is the current registrant of the name. Porkbun LLC has verified that Respondent is bound by the Porkbun 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 August 1, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 22, 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@twilio-okta.com. Also on August 1, 2022, the 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 August 25, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it was founded in 2008 and is a worldwide leader in cloud communications. It is not an exaggeration to say that Complainant’s services touches directly upon millions of lives. This is because Complainant’s cloud communication platform is the plumbing upon which many modern mobile applications are built upon. Every time a consumer calls for a ride through Uber, orders food from DoorDash, or books a stay with Airbnb, it is highly likely that customer is using Complainant’s services. Complainant is a truly global company whose technology has democratized communications infrastructure by allowing millions of developers around the world to easily create communication channels in the products they build. Complainant is currently headquartered in San Francisco, California, but has 26 offices in 17 countries all over the world. In fiscal year 2020, Complainant’s full year of revenue was $1.8 billion, and the company’s current valuation is at $40.66 billion. Complainant asserts rights in the TWILIO mark based upon its registration in the United States in 2011. The mark is registered elsewhere around the world.
Complainant alleges that the disputed domain name is confusingly similar to its TWILIO trademark because it incorporates the mark in its entirety and merely adds a hyphen, the third-party mark “OKTA” (Okta is a cloud identity management vendor used by Complainant) and the generic top-level domain name (“gTLD”) “.com”.
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not licensed or authorized to use Complainant’s TWILIO mark and is not commonly known by the disputed domain name. Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent attempts to pass off as Complainant in furtherance of a phishing scheme: the domain name that is used to provide secure connections for Complainant’s employees is <twilio.okta.com>; the disputed domain name resolves to a web page that displays Complainant’s mark and logo and invites users to enter their name and password.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent engages in a phishing scheme. Respondent has engaged in a pattern of bad faith registration and use. Respondent used a privacy shield. Respondent provided false WHOIS information. Respondent had actual notice of Complainant’s right in the TWILIO mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark TWILIO and uses to provide cloud computing services.
Complainant’s rights in its mark date back to 2011.
The disputed domain name was registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent uses to the disputed domain name to attempt to pass off as Complainant in furtherance of a phishing scheme: the resolving website displays Complainant’s mark and logo and invites users to enter their name and password.
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 disputed domain name incorporates Complainant’s TWILIO mark in its entirety and merely adds a hyphen, the third-party mark “OKTA” and the gTLD “.com”. Combining marks and adding a hyphen and gTLD does not distinguish a domain name from a mark under Policy ¶ 4(a)(i). See Bid Industrial Holdings (Proprietary) Limited and BFS Group Limited v. Shareef Ghumra / United Foods Group, FA 1784135 (Forum June 8, 2018) (finding the domain name was confusingly similar to the complainant’s mark where “[t]he only difference between the Domain Name and the Complainant’s trademarks is the mere addition of ‘.com’ and placement of a hyphen between the elements of the BIDVEST and 3663 marks.”). Further, adding letters to a mark does not distinguish a domain name from a mark under the Policy. See Brooks Sports, Inc. v. chen jiajin, FA 101001930406 (Forum Mar. 30, 2021) (finding that “adding random letters and a gTLD…fails to sufficiently distinguish a disputed domain name); see also Bittrex, Inc. v. Sergey Valerievich Kireev / Kireev, FA 1784651 (Forum June 5, 2018) (holding that the domain name consists of the Complainant’s mark and adds “the letters ‘btc’ and the gTLD .com which do not distinguish the Domain Name from Complainant’s mark.”). For all these reasons, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Respondent is not licensed or otherwise authorized to use Complainant’s TWILIO mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). Here, the WHOIS information for the disputed domain name lists the registrant as “bopbh brown”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Respondent uses the disputed domain name to attempt to pass off as Complainant in furtherance of a phishing scheme: the disputed domain name resolves to a web page that displays Complainant’s mark and logo and invites users to enter their name and password. Passing off in furtherance of a phishing scheme is neither 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). 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 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).”). Thus the Panel finds that Respondent fails to use the disputed domain name to make 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). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Complainant alleges that Respondent has engaged in a pattern of bad faith registration and use. In support of this allegation, it cites a number of UDRP cases. However, none of the cited cases involve the named Respondent in the instant case. Complainant does not present any evidence to substantiate an allegation that Respondent in the instant case was involved in previous UDRP cases. Thus the Panel finds that Complainant has failed to satisfy its burden of proof for this allegation and it will not further discuss the allegation.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent engages in a phishing scheme. Respondent’s use of a disputed domain name in furtherance of a phishing scheme establishes its bad faith registration and use of the disputed domain name under Policy ¶ 4(a)(iii). See Morgan Stanley v. Bruce Pu, FA 1764120 (Forum Feb. 2, 2018) (“[T]he screenshot of the resolving webpage allows users to input their name and email address, which Complainant claims Respondent uses that to fraudulently phish for information. Thus, the Panel agrees that Respondent phishes for information and finds that Respondent does so in bad faith under Policy ¶ 4(a)(iii).”). Thus the Panel finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(a)(iii).
Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the resolving website displays Complainant’s mark and logo. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); see also Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes bad faith under Policy ¶ 4(a)(iii).
Finally, the WHOIS information is false: it contains a non-existent street address and ZIP code. A respondent’s use of falsified information when it registers a domain name is evidence that the domain name was registered in bad faith under Policy ¶ 4(b)(iii). See CNU ONLINE Holdings, LLC v. Domain Admin / Whois Privacy Corp., FA1504001614972 (Forum May 29, 2015) (“As the Panel sees that Respondent has provided false or misleading WHOIS information, the Panel finds bad faith in Respondent’s registration of the disputed domain name per Policy ¶ 4(a)(iii).”). Thus the Panel finds that Respondent registered and uses the disputed domain name in bad faith under 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 <twilio-okta.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: August 25, 2022
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