Twitch Interactive, Inc. v. zhujiangtao
Claim Number: FA1506001626550
Complainant is Twitch Interactive, Inc. (“Complainant”), represented by Andrew VanArsdel of Seed Intellectual Property Law Group PLLC, Washington, USA. Respondent is zhujiangtao (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <tiwtch.tv>, registered with Dynadot, 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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 29, 2015; the Forum received payment on June 29, 2015.
On June 29, 2015, Dynadot, LLC confirmed by e-mail to the Forum that the <tiwtch.tv> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, 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 June 30, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 20, 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@tiwtch.tv. Also on June 30, 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 29, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Bruce E. Meyerson 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
1. Complainant uses the TWITCHTV mark to identify itself as the world’s leading live video platform and community for gamers. Complainant has registered the TWITCHTV mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,087,877, filed June 15, 2011, registered January 17, 2012).
2. This USPTO filing and registration demonstrate Complainant’s rights in the mark. The <tiwtch.tv> domain name is confusingly similar to the TWITCHTV mark as it merely switches the “w” and “i” in <twitch.tv>. The domain name also differs from the mark by the addition of the period between the words “twitch” and “tv.”
3. Respondent has no rights or legitimate interests in the disputed domain name. First, Respondent is not commonly known by the disputed domain name or any variant of Complainant’s mark. Respondent is not affiliated with Complainant in any way and has not been licensed or authorized by Complainant to use its mark.
4. Second, Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the domain name. Rather, Respondent uses the domain name to place a variety of pay-per-click hyperlinks to third-party websites, some of which directly compete with Complainant.
5. Respondent has engaged in bad faith pursuant to Policy ¶ 4(a)(iii) for two reasons. First, Respondent had actual and/or constructive knowledge of Complainant’s rights in its mark at the time of the registration of the disputed domain name. Second, Respondent has engaged in the tactic of typosquatting by intentionally registering a domain name that is a simple misspelling of Complainant’s well-known mark.
6. Respondent registered the <tiwtch.tv> domain name on November 7, 2011.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the TWITCHTV mark. Respondent’s domain name is confusingly similar to Complainant’s TWITCHTV mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <tiwtch.tv> domain name, and that Respondent registered and uses the domain name 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(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 uses the TWITCHTV mark to identify itself as a leading live video platform and community for gamers. Complainant has registered the TWITCHTV mark with the USPTO (e.g., Reg. No. 4,087,877, filed June 15, 2011, registered January 17, 2012). Because a complainant’s rights in a mark date back to the filing date of the trademark application, see Hershey Co. v. Reaves, FA 967818 (Nat. Arb. Forum June 8, 2007) (finding that the complainant’s rights in the KISSES trademark through registration of the mark with the USPTO “date back to the filing date of the trademark application and predate [the] respondent’s registration”), the Panel finds that Complainant established its rights in the TWITCHTV mark on June 15, 2011, predating Respondent’s registration of the <tiwtch.tv> domain name.
Complainant asserts that the <tiwtch.tv> domain name is confusingly similar to the TWITCHTV mark as it merely switches the “w” and “i” in the mark. Additionally, Respondent has placed a period in the mark between the words “twitch” and “tv.” A common misspelling of a complainant’s mark does not remove a respondent’s disputed domain name from the realm of confusing similarity in relation to the complainant’s mark pursuant to Policy ¶ 4(a)(i). See Google Inc. v. Jon G., FA 106084 (Nat. Arb. Forum Apr. 26, 2002) (finding <googel.com> to be confusingly similar to the complainant’s GOOGLE mark and noting that “[t]he transposition of two letters does not create a distinct mark capable of overcoming a claim of confusing similarity, as the result reflects a very probable typographical error”). Further, the addition of punctuation, such as a period, is irrelevant to a Policy ¶ 4(a)(i) analysis. See Mrs. World Pageants, Inc. v. Crown Promotions, FA 94321 (Nat. Arb. Forum Apr. 24, 2000) (finding that punctuation is not significant in determining the similarity of a domain name and mark). Thus, the Panel finds that Respondent’s domain name is confusingly similar to Complainant’s TWITCHTV mark pursuant to Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the disputed domain names. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c). See also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel holds that Complainant has made a prima facie case.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name. First, Complainant argues that Respondent is not commonly known by the <tiwtch.tv> domain name or any variant of the TWITCHTV mark. Further, Respondent is not licensed or authorized to use Complainant’s mark. The WHOIS information merely lists “zhujiangtao” as registrant. Because Respondent has failed to provide any evidence for the Panel’s consideration, nothing in the record demonstrates Respondent is commonly known by the <tiwtch.tv> domain name per Policy ¶ 4(c)(ii). See Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006) (finding that the respondent was not commonly known by the disputed domain names because the WHOIS information listed “Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't” as the registrant and there was no other evidence in the record to suggest that the respondent was commonly known by the domain names in dispute).
Further, Complainant argues that Respondent is not making a bona fide offering of any goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the <tiwtch.tv> domain name pursuant to Policy ¶ 4(c)(iii). Complainant asserts that Respondent uses the <tiwtch.tv> domain name to attract customers, for commercial gain, to its resolving website where it offers Internet users links, some of which directly compete with Complainant. No bona fide offering of goods or services or a legitimate noncommercial or fair use exists where a respondent’s resolving website hosts links displaying products and services that both compete and are unrelated to the complainant. See Compania Mexicana de Aviacion, S.A. de C.V. v. Bigfoot Ventures LLC, FA 1195961 (Nat. Arb. Forum July 14, 2008) (holding that the respondent had not demonstrated a bona fide offering of goods or services or a legitimate noncommercial or fair use when “the website resolving from the disputed domain name displays links to travel products and services, which directly compete with Complainant’s business”); see also Constellation Wines U.S., Inc. v. Tex. Int’l Prop. Assocs., FA 948436 (Nat. Arb. Forum May 8, 2007) (finding that the respondent had no rights or legitimate interests under Policy ¶¶ 4(c)(i) or 4(c)(iii) by using the disputed domain name to operate a website featuring links to goods and services unrelated to the complainant). Thus, the Panel finds that Respondent is not making a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use through the <tiwtch.tv> domain name pursuant to Policy ¶ 4(c)(iii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant contends that Respondent registered the <tiwtch.tv> domain name in bad faith per Policy ¶ 4(a)(iii). Complainant argues that Respondent had actual knowledge of the TWITCHTV mark when it registered the <tiwtch.tv> domain name. Complainant argues that at the time Respondent registered the domain name, Complainant already had millions of users and was well-known. As such, Complainant asserts that Respondent was well aware of Complainant’s rights in the TWITCHTV mark when it registered the <tiwtch.tv> domain name. The Panel finds that, due to the fame of Complainant’s mark, Respondent had actual knowledge of the mark and Complainant’s rights. See Radio & Records, Inc. v. Nat’l Voiceover, FA 665235 (Nat. Arb. Forum May 9, 2006) (“The Panel also finds that there are reasonable grounds to infer that Respondent had actual notice of Complainant’s rights in the mark as well. Complainant’s Radio & Records Magazine is a leading business journal covering an industry towards which Respondent’s services are marketed. Therefore, the Panel finds that Respondent registered the <radioandrecordsmagazine.com> domain name despite having constructive and actual notice of Complainant’s rights in the RADIO & RECORDS mark. Respondent’s registration of the disputed domain name with knowledge of Complainant’s rights is further evidence of bad faith registration and use under Policy ¶ 4(a)(iii).”).
Further, Complainant argues that Respondent has engaged in the tactic of typosquatting by attempting to capitalize on a common misspelling of Complainant’s mark, thereby engaging in bad faith registration pursuant to Policy ¶ 4(a)(iii). Respondent has transposed two of the letters in the word “Twitch.” Because the Panel agrees with Complainant’s contentions, the Panel finds that Respondent has engaged in bad faith under Policy ¶ 4(a)(iii). See Dermalogica, Inc. v. Domains to Develop, FA 175201 (Nat. Arb. Forum Sept. 22, 2003) (finding that the <dermatalogica.com> domain name was a “simple misspelling” of the complainant's DERMALOGICA mark which indicated typosquatting and bad faith pursuant to Policy 4 ¶ (a)(iii)).
The Panel finds 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 <tiwtch.tv> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: August 4, 2015
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