NaturalMotion Limited v. Qurzunta Kaab
Claim Number: FA1804001780103
Complainant is NaturalMotion Limited (“Complainant”), represented by Peter Kidd of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is Qurzunta Kaab (“Respondent”), Pakistan.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <csrracing2.com>, registered with GoDaddy.com, 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 April 2, 2018; the Forum received payment on April 2, 2018.
On April 3, 2018, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <csrracing2.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 3, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 23, 2018 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@csrracing2.com. Also on April 3, 2018, 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 April 26, 2018, 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 is a leading games and technology company which creates and publishes ultra-high quality free-to-play games combining polished gameplay with high-end 3D graphics. Complainant owns registrations for its CSR and CSR RACING marks in several countries, with rights dating back to 2014. Complainant registered the mark CSR RACING 2 in China on September 28, 2017.
Complainant alleges that the disputed domain name is identical or confusingly similar to Complainant’s marks as the domain name incorporates the marks in their entirety, and merely adds a generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent has no rights or legitimate interest in the disputed domain name. Further, Respondent is not commonly known by the disputed domain name based on the WHOIS information of record. Respondent does not use the domain name at issue in connection with a bona fide offering of goods or services, or a legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to divert traffic to a website offering products in competition with Complainant’s business. Further, Respondent’s domain name offers prohibited “cheat” or “mod” software that purportedly allows users to cheat and avoid making in-game purchases which negatively impacts Complainant’s revenues. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and used the disputed domain name in bad faith by offering unauthorized game software, including “mod” and “cheat” software, which competes with Complainant’s services and disrupts Complainant’s business. Respondent’s bad faith is also demonstrated through the use of the domain name to mislead users as to Complainant’s affiliation with the resolving content. Lastly, Respondent had actual knowledge of Complainant’s rights to its mark prior to registering the disputed domain name. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark CSR RACING 2 and uses it to market computer games and related products and services around the world. The mark is well known.
Complainant’s rights in its mark dates back to at least September 28, 2017.
The disputed domain name was registered on October 10, 2017.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving website displays Complainant’s trademarks and logos and offers products and services that compete with those of Complainant and that disrupt Complainant’s business. Respondent had actual knowledge of Complainant’s marks.
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.”).
The disputed domain name is identical to Complainant’s CSR RACING 2 mark. Panels have found a domain name to be confusingly similar or identical to a complainant’s mark where said domain name incorporates complainant’s mark entirely, and merely adds a gTLD. See Oki Data Ams., Inc. v. ASD, Inc., D2001-0903 (WIPO Nov. 6, 2001) (“[T]he fact that a domain name wholly incorporates a Complainant’s registered mark is sufficient to establish identity [sic] or confusing similarity for purposes of the Policy despite the addition of other words to such marks”); see also Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Forum May 27, 2003) (“The addition of a top-level domain is irrelevant when establishing whether or not a mark is identical or confusingly similar, because top-level domains are a required element of every domain name.”). Thus the Panel finds that the disputed domain name is identical to Complainant’s mark in the sense of the Policy.
Complainant has not licensed or otherwise authorized Respondent to use its marks. Respondent is not commonly known by the disputed domain name: in the absence of a response, a respondent can be found not to be commonly known by a domain name based on the WHOIS information of record. See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Here, the WHOIS information of record lists registrant as “Qurzunta Kaab.” Accordingly, the Panel finds that Respondent is not commonly known by the disputed domain name.
The disputed domain name is not being used in connection with a bona fide offering of goods or services, or legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to divert traffic to a website offering products in competition with Complainant’s business. Further, said website offers prohibited “cheat” or “mod” software that purportedly allows users to cheat and avoid making in-game purchases which negatively impacts Complainant’s revenues. Such uses are not in accordance with Policy ¶¶ 4(c)(i) and (iii). See Star Stable Entertainment AB v. javier chong, FA1604001670616 (Forum May 10, 2016) (use of a domain name to run a cheat site that hacks complainant’s software to obtain game coins without payment is not a legitimate or fair use); see also j2 Global Canada, Inc. and Landslide Technologies, Inc. v. VIJAY S KUMAR / STRATEGIC OUTSOURCING SERVICES PVT LTD, FA 1647718 (Forum Jan. 4, 2016) (finding that the disputed domain purports to offer for sale goods and services in the field of electronic marketing, which directly overlap with the services covered by Complainant’s registrations and offered by Complainant online, and therefore Respondent does not have rights or legitimate interests through its competing use). Consequently, the Panel finds that Respondent’s use of the disputed domain name is not in accordance with Policy ¶¶ 4(c)(i) and (iii). The Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for his 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 names.
Indeed, as already noted, the resolving website offers products and services that compete with those of Complainant, including unauthorized “mod” and “cheat” software, which disrupt Complainant’s business and in-game purchasing business model. Domain names that disrupt and compete with a complainant’s business may demonstrate bad faith per Policy ¶ 4(b)(iii). See ZIH Corp. v. ou yang lin q, FA1761403 (Forum Dec. 29, 2017) (Finding bad faith where Respondent used the infringing domain name to disrupt Complainant’s business by diverting Internet users from Complainant’s website to Respondent’s website where it offered competing printer products); see also Star Stable Entertainment AB v. javier chong, FA1604001670616 (Forum May 10, 2016) (finding bad faith were respondent used the disputed domain name to disrupt complainant’s business by offering hacking services to bypass complainant’s in-game purchasing model). As a result, the Panel finds that Respondent registered and used the disputed domain name in bad faith per Policy ¶ 4(b)(iii).
Further, Respondent had actual knowledge of Complainant’s rights to its mark prior to registering the disputed domain name. Constructive knowledge is insufficient to support a finding of bad faith, however the Panel may find actual knowledge is sufficient based on Respondent’s use of the domain name. See 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.”). Respondent’s actual knowledge is evidenced by the references to Complainant’s products and services and the reproduction of Complainant’s trademarks, logos, and copyrighted material on the resolving website. Accordingly, the Panel finds that Respondent’s use of the disputed domain name evidences Respondent had actual knowledge of Complainant’s rights to its marks prior to registering the domain name at issue, and it finds bad faith registration and use on this ground also.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <csrracing2.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: April 26, 2018
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