Twitch Interactive, Inc. v. Katherine Anjomi
Claim Number: FA1701001710534
Complainant is Twitch Interactive, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is Katherine Anjomi (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <primetwitch.com>, registered with Name.com, Inc..
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 January 3, 2017; the Forum received payment on January 3, 2017.
On January 4, 2017, Name.com, Inc. confirmed by e-mail to the Forum that the <primetwitch.com> domain name is registered with Name.com, Inc. and that Respondent is the current registrant of the name. Name.com, Inc. has verified that Respondent is bound by the Name.com, Inc. 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 January 5, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 25, 2017 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@primetwitch.com. Also on January 5, 2017, 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 February 2, 2017, 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 name be transferred from Respondent to Complainant.
A. Complainant
Complainant is a global online social video platform and gaming community. In conjunction with its business, Complainant uses the TWITCH mark. Complainant registered the TWITCH mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,275,948, registered Jan. 15, 2013). Respondent’s <primetwitch.com> is confusingly similar to the TWITCH mark because it incorporates the mark in its entirety, adding the famous PRIME mark and the “.com” generic top level domain (“gTLD”).
Respondent does not have rights or legal interests in <primetwitch.com>. Respondent is not commonly known by the disputed domain name. Complainant has not authorized or licensed Respondent to use the TWITCH mark in any respect, nor is Respondent affiliated with Complainant. Respondent does not make a bona fide offering of goods or services, or a legitimate non-commercial or fair use of the domain. Respondent’s <primetwitch.com> resolves to a webpage resembling Complainant’s webpage, presumably in an attempt to mislead internet users for financial gain.
Respondent registered and is using <primetwitch.com> in bad faith. The disputed domain name disrupts Complainant’s business by diverting viewership, deceiving users, and passing off as Complainant. Furthermore, Respondent’s <primetwitch.com> appears to distribute malware to users’ devices.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Twitch Interactive, Inc., is a global online social video platform and gaming community. In conjunction with its business, Complainant uses the TWITCH mark. Complainant has rights in the TWITCH mark through registration with the USPTO (e.g., Reg. No. 4,275,948, registered Jan. 15, 2013). Respondent’s <primetwitch.com> is confusingly similar to the TWITCH mark.
Respondent, Katherine Anjomi, registered the <primetwitch.com> domain name on March 3, 2014. Respondent’s <primetwitch.com> resolves to a webpage resembling Complainant’s webpage, presumably in an attempt to mislead internet users for financial gain. Furthermore, Respondent’s <primetwitch.com> appears to distribute malware to users’ devices.
Respondent does not have rights or legal interests in <primetwitch.com>.
Respondent registered and is using <primetwitch.com> 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 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 (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.”).
Panel Note: Multiple Marks at Issue
There are two trademarks at issue in the instant case: TWITCH and PRIME. TWITCH is owned by Complainant Twitch Interactive, Inc. (formerly JUSTIN.TV, Inc.). Amazon Technologies, Inc. registered the PRIME mark with the USPTO (e.g. Reg. No. 3,234,643, registered Apr. 24, 2007). Although Amazon Technologies, Inc. has not been joined as a complainant, there appears to be a sufficient nexus through which Complainant can claim to have rights in the <primetwitch.com> domain name under the Forum’s Supplemental Rule 1(e). Both Twitch Interactive, Inc. and Amazon Technologies, Inc. are subsidiaries of Amazon.com.
Complainant has rights in the TWITCH mark through registration with the USPTO (e.g., Reg. No. 4,275,948, registered Jan. 15, 2013). See Twitch Interactive, Inc. v. S Jon Grant, FA 1614428 (Forum May 19, 2015) (finding that Twitch Interactive, Inc. owns registered marks for TWITCH and TWICHTV).
Respondent’s <primetwitch.com> is confusingly similar to the TWITCH mark because it incorporates the mark in its entirety, adding the famous mark PRIME and the “.com” gTLD. The combination of marks does not distinguish the disputed domain name from Complainant’s mark under Policy ¶4(a)(i). Hewlett-Packard Development Company, L.P. v. Yangxiaoyi / Qingyuan Tianheng Trading Company Ltd., FA 1625637 (Forum June 23, 2015). Similarly, a “[r]espondent’s . . . disputed domain name is confusingly similar to [a complainant’s] . . . marks because it combines [the complainant’s] marks and merely adds the generic top-level domain ‘.com.’” Fitness Anywhere, Inc. v. Mode Athletics, FA 1320667 (Forum May 20, 2010).
Respondent does not have rights or a legitimate interest in <primetwitch.com>. Complainant has not authorized or licensed Respondent to use the TWITCH mark. Nor is Respondent affiliated with Complainant. The WHOIS information shows that Respondent used the privacy service “Whois Privacy Protection Service, Inc.” to shield its identity. See CheapCaribbean.com, Inc. v. Moniker Privacy Services, FA1411001589962 (Forum Jan. 1, 2015) (“The Panel notes that the WHOIS information merely lists a privacy service as registrant. In light of Respondent’s failure to provide any evidence to the contrary, the Panel finds there is no basis to find Respondent is commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii).”). After the privacy shield was removed, the WHOIS information identified the registrant as “Katherine Anjomi.” Therefore, Respondent is not commonly known by the by the <primetwitch.com> domain name.
Respondent does not make a bona fide offering of goods or services, or a legitimate non-commercial or fair use of the domain. Respondent’s <primetwitch.com> resolves to a webpage resembling Complainant’s webpage, presumably in an attempt to mislead internet users for financial gain. Panels have found that respondents attempting to pass themselves off as complainants lack rights or legitimate interests in the disputed domain name. See Dream Horse Classifieds v. Mosley, FA 381256 (Forum Feb. 8, 2005) (finding the respondent’s attempt to pass itself off as the complainant by implementing a color scheme identical to the complainant’s was evidence that respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii)); see also Kmart of Mich., Inc. v. Cone, FA 655014 (Forum Apr. 25, 2006) (The panel found the respondent’s attempt to pass itself of as the complainant was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii) when the respondent used the disputed domain name to present users with a website that was nearly identical to the complainant’s website).
Respondent registered and is using <primetwitch.com> in bad faith. Respondent’s <primetwitch.com> resolves to a webpage that resembles Complainant’s webpage, offering services similar to and in competition with Complainant’s, likely for a profit, thereby disrupting Complainant’s business. Panels have found bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting. Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006). Panels have found “such use to constitute bad faith registration and use pursuant to Policy ¶ 4(b)(iv), because [r]espondent is taking advantage of the confusing similarity between the [disputed] domain name and [c]omplainant’s . . . mark in order to profit from the goodwill associated with the mark.”
Respondent appears to use the <primetwitch.com> domain name to distribute malware. Therefore, Respondent registered and is using the domain name in bad faith under Policy ¶ 4(a)(iii). See Twitter, Inc. v. Kiribati Media / Kiribati 200 Media Limited, FA1502001603444 (Forum Mar. 19, 2015) (“Using the disputed domain name to download malicious software into unsuspecting viewers’ computers evidences Respondent’s bad faith registration and use pursuant to Policy ¶ 4(a)(iii).” See also Google, Inc. v. Petrovich, FA 1339345 (Forum Sept. 23, 2010) (finding that disputed domain names which distribute malware to Internet users’ computers demonstrate Respondent’s bad faith under Policy ¶ 4(b)(iv)).
Respondent registered <primetwitch.com> with actual knowledge of Complainant and its rights in the TWITCH mark. Because the link between the complainant's mark and the content advertised on the respondent's website was obvious, the respondent "must have known about the Complainant's mark when it registered the subject domain name." Pfizer, Inc. v. Suger, D2002-0187 (WIPO Apr. 24, 2002).
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 <primetwitch.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: February 11, 2017
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