Twitch Interactive, Inc. v. Above.com Domain Privacy
Claim Number: FA1506001623052
Complainant is Twitch Interactive, Inc.
(“Complainant”), represented by Andrew VanArsdel of Seed Intellectual Property Law Group PLLC, Washington, USA. Respondent is Above.com Domain Privacy (“Respondent”), Australia.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain name at issue is <rwitch.tv> and <6witch.tv>, registered with Above.com Pty 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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 5, 2015; the Forum received payment on June 5, 2015.
On June 12, 2015, Above.com Pty Ltd. confirmed by e-mail to the Forum that the <rwitch.tv> and <6witch.tv> domain names are registered with Above.com Pty Ltd. and that Respondent is the current registrant of the names. Above.com Pty Ltd. has verified that Respondent is bound by the Above.com Pty 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 June 15, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 6, 2015 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@rwitch.tv, postmaster@6witch.tv. Also on June 15, 2015, 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 July 13, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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.
A. Complainant
Complainant owns the TWITCHTV mark through registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,087,877, registered Jan. 17, 2012). Complainant uses the TWITCHTV mark in connection with its business, which provides a live video platform and community for gamers. The <rwitch.tv> and <6witch.tv> domain names are confusingly similar to the TWITCHTV mark. The <rwitch.tv> domain name incorporates the mark in full, changes the letter “t” to “r” and inserts a period between the words “twitch” and “tv.” The <6witch.tv> domain name incorporates the mark in full, changes the letter “t” to a “6” and inserts a period between the words “twitch” and “tv.”
Respondent has no rights or legitimate interests in the disputed domain names. Respondent is not commonly known by the disputed domain names nor by Complainant’s TWITCHTV mark. Respondent is not licensed by Complainant to use Complainant’s mark. Further, Respondent is not using the disputed domain name for a bona fide offering of goods or services, or for a legitimate noncommercial or fair use. Respondent’s <rwitch.tv> domain name resolves to a website for the purpose of a phishing scheme. Further, the resolving website has also been connected to malware. Respondent’s <6witch.tv> domain name is being used to host a classic pay-per-click site displaying links that divert visitors to Complainant’s competitors.
Respondent has engaged in bad faith registration and use of the <rwitch.tv> and <6witch.tv> domain names pursuant to Policy ¶ 4(a)(iii). Respondent has offered both the disputed domain names for sale in violation of Policy ¶ 4(b)(iii). Respondent registered the disputed domain names with knowledge of Complainant’s rights to the TWITCHTV mark, which establishes further evidence of bad faith registration under Policy ¶ 4(a)(iii). Respondent has engaged in the practice of typosquatting by intentionally registering domain names that are simple misspellings of Complainant’s mark. Finally, Respondent’s involvement with the distribution of malware is further evidence of bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Twitch Interactive, Inc., owns the TWITCHTV mark through registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,087,877, registered Jan. 17, 2012). Complainant uses the TWITCHTV mark in connection with its business, which provides a live video platform and community for gamers.
Respondent, Above.com Domain Privacy, registered the<rwitch.tv> and <6witch.tv> domain names on October 2, 2014. Respondent’s <rwitch.tv> domain name resolves to a website connected to malware. Respondent’s <6witch.tv> domain name is being used to host a pay-per-click site displaying links that divert visitors to Complainant’s competitors. Respondent has offered both the disputed domain names for sale in violation of Policy ¶ 4(b)(iii).
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Complainant owns the TWITCHTV mark through registration with the USPTO, which shows Complainant’s rights in the mark under Policy ¶ 4(a)(i), even though Respondent reportedly resides in Australia. See Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”); see also W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Nat. Arb. Forum Aug. 24, 2010) (stating that “the Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.”).
Respondent’s <rwitch.tv> and <6witch.tv> domain names are confusingly similar to the TWITCHTV mark under Policy ¶ 4(a)(i). The <rwitch.tv> domain name incorporates the mark in full, changes the letter “t” to “r” and inserts a period between the words “twitch” and “tv.” The <6witch.tv> domain name incorporates the mark in full, changes the letter “t” to a “6” and inserts a period between the words “twitch” and “tv.”
Respondent has no rights or legitimate interests in the <rwitch.tv> and <6witch.tv> domain names. Respondent is not commonly known by the disputed domain names nor by Complainant’s TWITCHTV mark. The WHOIS information for the disputed domain names lists “Above.com Domain Privacy” as the registrant. Further, Complainant has not licensed or authorized Respondent to use Complainant’s mark. See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).
Respondent is not using the disputed domain name for a bona fide offering of goods or services under to Policy ¶ 4(c)(i), or for a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). Respondent’s <rwitch.tv> domain name resolves to a website that has been connected to malware. Respondent’s <6witch.tv> domain name is being used to host a pay-per-click site displaying links that divert visitors to Complainant’s competitors. See Hilton Hotels Corp. v. Padonack, FA 1043687 (Nat. Arb. Forum Sept. 6, 2007) (holding that the use of a disputed domain name to host a website that attempted to download a virus when accessed did not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use of a domain name); see also Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the operation of a pay-per-click website at a confusingly similar domain name was not 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 claims that Respondent’s <rwitch.tv> domain name resolves to a website for the purpose of a phishing scheme. However, Complainant’s evidence fails to show that Respondent is engaging in a plishing scheme.
Respondent has offered both of the disputed domain names for sale in violation of Policy ¶ 4(b)(i). Respondent has offered the disputed domain names for sale at a price of $10,000 each, which is evidence of bad faith registration under Policy ¶ 4(b)(i). See World Wrestling Fed’n Entm’t., Inc. v. Bosman, D99-0001 (WIPO Jan. 14, 2000) (finding that the respondent used the domain name in bad faith because he offered to sell the domain name for valuable consideration in excess of any out-of-pocket costs).
Respondent registered the <rwitch.tv> and <6witch.tv> domain names with actual knowledge of Complainant’s rights to the TWITCHTV mark, which establishes further evidence of bad faith registration under Policy ¶ 4(a)(iii). See Yahoo! Inc. v. Butler, FA 744444 (Nat. Arb. Forum Aug. 17, 2006) (finding bad faith where the respondent was "well-aware of the complainant's YAHOO! mark at the time of registration”).
Respondent has engaged in the practice of typosquatting by registering domain names that are simple misspellings of Complainant’s mark, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See Bank of Am. Corp. v. Tak Ume domains for sale, FA 154528 (Nat. Arb. Forum May 19, 2003) (holding that the practice of typosquatting “diverts Internet users who misspell Complainant’s mark to a website apparently owned by Respondent for Respondent’s commercial gain. ‘Typosquatting’ has been recognized as evidencing bad faith registration and use under Policy ¶ 4(b)(iv).”).
Finally, Respondent’s involvement with the distribution of malware is further evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Google, Inc. v. Petrovich, FA 1339345 (Nat. Arb. Forum September 23, 2010) (finding that disputed domain names which distribute malware to Internet users’ computers demonstrate Respondent’s bad faith).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <rwitch.tv> and <6witch.tv> domain names be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: July 27, 2015
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page