EUROSPORT v. Super Privacy Service c/o Dynadot
Claim Number: FA1606001679455
Complainant is EUROSPORT (“Complainant”), represented by Amy E. Salomon of Arent Fox LLP, Washington D.C., USA. Respondent is Super Privacy Service c/o Dynadot (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wwweurosport.com>, registered with Dynadot7 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.
Hon. Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 14, 2016; the Forum received payment on June 14, 2016.
On June 15, 2016, Dynadot7 LLC confirmed by e-mail to the Forum that the <wwweurosport.com> domain name is registered with Dynadot7 LLC and that Respondent is the current registrant of the name. Dynadot7 LLC has verified that Respondent is bound by the Dynadot7 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 16, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 6, 2016 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@wwweurosport.com. Also on June 16, 2016, 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, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (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.
Complainant
Complainant uses the EUROSPORT mark in connection with its television broadcasting services. Complainant has registered the EUROSPORT mark with numerous trademark agencies around the world, including the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,871,597, registered Jan. 3, 1995). Respondent’s <wwweurosport.com> domain name is confusingly similar to Complainant’s EUROSPORT mark, taking advantage of the common typographical error of omitting the period between “www” and the mark.
Respondent lacks rights and legitimate interests in the <wwweurosport.com> domain name. Respondent is not commonly known by the disputed domain name. Furthermore, Complainant has not authorized Respondent to use the EUROSPORT mark. Respondent is not making a bona fide offering or a legitimate noncommercial or fair use with the <wwweurosport.com> domain. Rather, the typosquatted disputed domain name immediately redirects internet users to third party websites unrelated to Complainant; some of these websites feature adult-oriented content. Further, when users are redirected to these unrelated websites, they are solicited for their names and e-mail addresses, which constitutes phishing.
Respondent has registered and is using the <wwweurosport.com> domain in bad faith. Respondent uses the domain to redirect Internet users to websites unrelated to Complainant, in violation of Policy ¶ 4(b)(iv); some of these websites contain adult-oriented material. Respondent is engaging in phishing by using the disputed domain to host links to websites that request the names and e-mail addresses of redirected Internet users. Respondent, through the domain, has engaged in the tactic of typosquatting. Respondent registered the disputed domain name with at least constructive knowledge of Complainant’s rights in the EUROSPORT mark.
Respondent
Respondent did not submit a Response in this proceeding.
For the reasons set forth below, the Panel finds Complainant is entitled to the requested relief of transfer of the <wwweurosport.com> domain name.
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.”).
Complainant uses the EUROSPORT mark in connection with its television broadcasting services. Complainant has registered the EUROSPORT mark with numerous trademark agencies around the world, including the USPTO (e.g., Reg. No. 1,871,597, registered Jan. 3, 1995). Panels have held that a USPTO registration establishes a complainant’s rights in a mark under Policy ¶ 4(a)(i). See Dell Inc. v. Rino Manangkalangi, FA 1626784 (Forum Aug. 5, 2015) (holding that Complainant has rights in the ALIENWARE trademark and service mark for purposes of Policy ¶ 4(a)(i) by reason of its registration of the mark with the USPTO.). Therefore, the Panel finds that Complainant has established rights in the EUROSPORT mark per Policy ¶ 4(a)(i).
Complainant asserts that Respondent’s <wwweurosport.com> domain name is confusingly similar to Complainant’s EUROSPORT mark, as Respondent is taking advantage of the common typographical error of omitting the period between “www” and the mark. Respondent has also affixed the generic top-level domain (“gTLD”) “.com” to the domain. Panels have held that the elimination of the period between “www” and a complainant’s mark does not serve to adequately distinguish a respondent’s disputed domain from a complainant’s mark. See Bank of Am. Corp. v. InterMos, FA 95092 (Forum Aug. 1, 2000) (finding that the respondent’s domain name <wwwbankofamerica.com> is confusingly similar to the complainant’s registered trademark BANK OF AMERICA because it “takes advantage of a typing error (eliminating the period between the www and the domain name) that users commonly make when searching on the Internet”). Panels have also held that the affixation of the “.com” gTLD is irrelevant to a Policy ¶ 4(a)(i) analysis. See Countrywide Fin. Corp. v. Johnson & Sons Sys., FA 1073019 (Forum Oct. 24, 2007) (holding that the addition of the generic top-level domain (“gTLD”) “.com” was irrelevant). Therefore, the Panel finds that the <wwweurosport.com> domain name is confusingly similar to Complainant’s EUROSPORT mark pursuant to Policy ¶ 4(a)(i).
Complainant has proved this element.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant argues that Respondent has no rights or legitimate interests in the domain. Complainant asserts that Respondent is not commonly known by the disputed domain name. The WHOIS information for the disputed domain name lists “Super Privacy Service c/o Dynadot” as the registrant of record. Complainant states that Respondent is not sponsored by Complainant in any way. Based on these contentions and lack of any evidence to the contrary, the Panel finds that Respondent is not commonly known by the domain under Policy ¶ 4(c)(ii). See CheapCaribbean.com, Inc. v. Moniker Privacy Services, FA1411001589962 (Forum January 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).”).
Complainant asserts that Respondent lacks rights or legitimate interests in the <wwweurosport.com> domain name, as evidenced by Respondent’s failure to use the disputed domain name in connection with a bona fide offering of goods or services, or for a legitimate noncommercial or fair use. Complainant has submitted for the Panel’s review evidence which it purports shows that the domain redirects Internet users to unrelated third party webpages, some of which include adult-oriented material. Typosquatting, redirecting to unrelated third parties, and redirecting to adult-oriented material have all been held to support the finding that a respondent lacks rights or legitimate interests in a disputed domain name. See Diners Club Int’l Ltd. v. Domain Admin******It's all in the name******, FA 156839 (Forum June 23, 2003) (holding that the respondent’s <wwwdinersclub.com> domain name, a typosquatted version of the complainant’s DINERS CLUB mark, was evidence in and of itself that the respondent lacks rights or legitimate interests in the disputed domain name vis á vis the complainant); see also Forum Seiko Kabushiki Kaisha v. CS into Tech, FA 198795 (Forum Dec. 6, 2003) (“Diverting customers, who are looking for products relating to the famous SEIKO mark, to a website unrelated to the mark is not a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor does it represent a noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also Twitter, Inc. v. Kiribati Media / Kiribati 200 Media Limited-, FA 1603444 (Forum March 19, 2015) (holding that, generally, a disputed domain which hosts adult-oriented material is not a bona fide offering of goods or services or a legitimate noncommercial or fair use). Therefore, the Panel finds that Respondent lacks rights and legitimate interests in the disputed domain name.
Complainant also argues that some of the websites to which Internet users are redirected through Respondent’s disputed domain solicit personal information from the users, including names and e-mail addresses. Complainant asserts that such use by Respondent constitutes phishing. Panels have found that a Respondent’s use of a domain to phish for personal information from Internet users does not constitute a bona fide offering of goods or services, or a legitimate noncommercial or fair use. See Blackstone TM L.L.C. v. Mita Irelant Ltd., FA 1314998 (Forum Apr. 30, 2010) (“The Panel finds that Respondent’s attempt to “phish” for users’ personal information is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Therefore, the Panel finds Respondent is not using the domain in connection with a bona fide offering of goods or services, or a legitimate noncommercial or fair use.
Complainant has proved this element.
Complainant argues that Respondent intentionally attracts, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s mark. Complainant contends that Respondent presumably receives “click through” fees through its use of the disputed domain name, and that it registered the disputed domain name to attract and mislead consumers for its own profit. Panels have found that a respondent’s use of a domain to host links unrelated to a complainant’s business is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Dovetail Ventures, LLC v. Klayton Thorpe, FA1506001625786 (Forum August 2, 2015) (holding that the respondent had acted in bad faith under Policy ¶ 4(b)(iv), where it used the disputed domain name to host a variety of hyperlinks, unrelated to the complainant’s business, through which the respondent presumably commercially gained). Therefore, the Panel finds that Respondent has engaged in bad faith under Policy ¶ 4(b)(iv).
Complainant alleges that some of the websites to which Internet users are redirected from Respondent’s domain contain adult-oriented material. Panels have held that a respondent’s use of a domain to feature adult-oriented content is evidence of bad faith registration and use under Policy ¶ 4(b)(iv). See Google Inc. v. Bassano, FA 232958 (Forum Mar. 8, 2004) (holding that the respondent’s use of the <googlesex.info> domain name to intentionally attract Internet users to a website featuring adult-oriented content constituted bad faith registration and use under Policy ¶ 4(b)(iv)). Accordingly, the Panel finds Respondent has acted in bad faith under Policy ¶ 4(b)(iv).
Complainant contends that Respondent’s use of the domain to host hyperlinks to websites that solicit personal information, including names and e-mail addresses, from Internet users constitutes bad faith registration and use per Policy ¶ 4(a)(iii). Panels agree that a respondent’s use of a domain to engage in phishing activity violates Policy ¶ 4(a)(iii). See Hess Corp. v. GR, FA 770909 (Forum Sept. 19, 2006) (determining that the respondent demonstrated bad faith registration and use because it was attempting to acquire the personal and financial information of Internet users through a confusingly similar domain name). The Panel accepts Complainant’s argument, and finds that Respondent registered and is using the domain in bad faith under Policy ¶ 4(a)(iii).
Complainant contends that Respondent has engaged in the tactic of typosquatting, in violation of Policy ¶ 4(a)(iii). According to Complainant, users would merely need to omit the period between “www” and the EUROSPORT mark to be mistakenly directed to Respondent’s website rather than Complainant’s. Panels have found that respondents who take advantage of common typing errors engage in bad faith under Policy ¶ 4(a)(iii). See Nextel Commc’ns Inc. v. Geer, FA 477183 (Forum July 15, 2005) (finding that the respondent’s registration and use of the <nextell.com> domain name was in bad faith because the domain name epitomized typosquatting in its purest form). Accordingly, the Panel finds that Respondent’s typosquatting conduct is additional evidence of bad faith pursuant to Policy ¶ 4(a)(iii).
Complainant asserts that, due to its extensive list of trademark registrations and the international fame of its mark, Respondent must have had at least constructive knowledge of Complainant's rights in the EUROSPORT mark when Respondent registered the domain. Panels have held that constructive knowledge is not sufficient evidence of bad faith. 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."). The Panel agrees with Complainant’s argument regarding Respondent's actual knowledge, however, and concludes that Respondent registered the domain name in bad faith according to Policy ¶ 4(a)(iii). See Immigration Equality v. Brent, FA 1103571 (Forum Jan. 11, 2008) ("That Respondent proceeded to register a domain name identical to, and with prior knowledge of Complainant's mark is sufficient to prove bad faith registration and use under Policy ¶ 4(a)(iii).").
Complainant has proved this element.
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 <wwweurosport.com> domain name be TRANSFERRED from Respondent to Complainant
__________________________________________________________________
Hon. Karl V. Fink (Ret.), Panelist
Dated: July 14, 2016
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