RevZilla Motorsports, LLC v. Elad Avrahami / Secnox
Claim Number: FA1912001873573
Complainant is RevZilla Motorsports, LLC (“Complainant”), represented by Amanda L. DeFord of McGuireWoods LLP, Virginia, USA. Respondent is Elad Avrahami / Secnox (“Respondent”), Israel.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <revszilla.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.
David A. Einhorn appointeed as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 3, 2019; the Forum received payment on December 3, 2019.
On December 4, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <revszilla.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 December 5, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 26, 2019 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@revszilla.com. Also on December 5, 2019, 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 December 30, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David A. Einhorn 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 uses the REVZILLA mark in connection with motorcycle gear and parts. Complainant has rights in the REVZILLA mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 4,186,105, registered Aug. 7, 2012) and China’s National Intellectual Property Administration (“CNIPA”) (e.g. Reg. No. 34181865, registered July 7, 2019). Respondent’s <revszilla.com> domain name is identical or confusingly similar to Complainant’s mark as it misspells Complainant’s mark by adding an “s” after the word “rev” and before the word “zilla” as well as adds the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <revszilla.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the mark. Respondent fails to use the disputed domain name 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 host a website displaying Complainant’s logo and copyrighted text to deceive consumers into buying what they believe to be genuine products from Complainant.
Respondent registered and uses the <revszilla.com>domain name in bad faith. Respondent uses Complainant’s mark to attempt to sell counterfeit or competitive products. Respondent engages in typosquatting by inserting an “s” in the middle of Complainant’s mark. Respondent registered the <revszilla.com> domain name with knowledge of Complainant’s rights in the REVZILLA mark.
B. Respondent
Respondent failed to submit a response in this proceeding. The Panel notes that Respondent registered the <revszilla.com> domain name on November 13, 2019.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Preliminary Issue: Deficient Response
The Forum received informal email correspondence from Respondent on December 5, 2019. The Forum does not consider the Response to be in compliance with ICANN Rule 5, nor does the informal response include any evidence to substantiate its assertions. The Panel, at its discretion, may choose whether to accept and consider this Response. See Sears Brands, LLC v. Airhart, FA 1350469 (Forum Dec. 2, 2010) (electing to not accept and not consider the response as the response was not in compliance with ICANN Rule 5). Accordingly, the Panel elects not to consider this response.
Complainant asserts rights in the REVZILLA mark based on registration with the USPTO and CNIPA. Registration of a mark with the multiple trademark agencies sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶4(a)(i). See Alibaba Group Holding Limited v. YINGFENG WANG, FA 1568531 (Forum Aug. 21, 2014) (“Complainant has rights in the ALIBABA mark under the Policy through registration with trademark authorities in numerous countries around the world.”). Complainant provides copies of registrations with the USPTO (e.g. Reg. No. 4,186,105, registered Aug. 7, 2012) and CNIPA (e.g. Reg. No. 34181865, registered July 7, 2019). Accordingly, the Panel finds that Complainant has established rights in the REVZILLA mark for the purposes of Policy ¶ 4(a)(i).
Complainant next argues that Respondent’s <revszilla.com> domain name is identical or confusingly similar to Complainant’s mark as it misspells Complainan’s mark by adding an “s” after the word “rev” and before the word “zilla”. The addition of the letter “s” fails to sufficiently distinguish a domain name for the purposes of Policy ¶ 4(a)(i). See LodgeWorks Partners, L.P. v. Isaac Goldstein / POSTE RESTANTE, FA 1717300 (Forum March 20, 2017) Respondent’s <archerhotels.com> is found to be similar to complainant’s ARCHER HOTEL mark.). The Panel therefore finds that the <revszilla.com> domain name is confusingly similar to the REVZILLA mark under Policy ¶ 4(a)(i).
Complainant argues that Respondent lacks rights or legitimate interests in the <revszilla.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the mark. WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). The WHOIS information for the disputed domain name lists the registrant as “Elad Avrahami/Secnox,” and there is no other evidence to suggest that Respondent was authorized to use the REVZILLA mark. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Complainant also argues Respondent fails to use the <revszilla.com> domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use and instead uses the disputed domain name to host a website displaying Complainant’s logo and copyrighted text to deceive consumers into buying what they believe to be genuine products from Complainant. Passing off as complainant to sell counterfeit or competing products does not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i) or legitimate noncommercial or fair use per Policy ¶ 4(c)(iii). See Nokia Corp. v. Eagle, FA 1125685 (Forum Feb. 7, 2008) (finding the respondent’s use of the disputed domain name to pass itself off as the complainant in order to advertise and sell unauthorized products of 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 of the disputed domain name pursuant to Policy ¶ 4(c)(iii)); see also Gumwand Inc. v. jared brading, FA 1794058 (Forum Aug. 6, 2018) (finding that use of a confusingly similar domain name to resolve to a website which purported to sell chewing gum-removal equipment which was either counterfeit versions of Complainant’s goods, or goods which competed directly with Complainant’s chewing gum-removal equipment business, was not a bona fide offering of goods or services or a legitimate noncommercial or fair use within Policy ¶¶ 4(c)(i) or (iii)). Complainant provides screenshots of the resolving webpage of the disputed domain name which Complainant argues displays Complainant’s logo and advertises Complainant’s products for sale. Complainant also provides a screenshot of Complainant’s own website for comparison. The Panel therefore finds that Respondent does not use the disputed domain name to make a bona fide offering of goods or services under Policy ¶ 4(c)(i) or legitimate noncommercial or fair use per Policy ¶ 4(c)(iii).
Thus, Complainant has also satisfied Policy ¶ 4(a)(ii).
Complainant contends that Respondent registered and uses the <revszilla.com>domain name in bad faith as Respondent uses Complainant’s mark to attempt to sell counterfeit or competitive products. Passing off as a complainant to sell competing or counterfeit versions of a complainant’s products can show bad faith registration and use per Policy ¶ 4(b)(iv). See Russell & Bromley Limited v. Li Wei Wei, FA 1752021 (Forum Nov. 17, 2017) (finding the respondent registered and used the at-issue domain name in bad faith because it used the name to pass off as the complainant and offer for sale competitive, counterfeit goods). Complainant has provided screenshots of the resolving webpage of the disputed domain name allegedly displaying Complainant’s logo and advertising Complainant’s products for sale. Complainant also provides a screenshot of Complainant’s own website for comparison. The Panel therefore finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(b)(iv).
Complainant also argues Respondent registered and uses the <revszilla.com>domain name in bad faith as Respondent engages in typosquatting by merely inserting an “s” in the middle of Complainant’s mark. Typosquatting, the registration of a domain name containing a slight misspelling of a mark, can show bad faith registration and use per Policy ¶ 4(a)(iii). See, e.g. Priceline.com, Inc. v. Ryan G Foo / PPA Media Services, FA1684157 (Forum Aug. 18, 2016) (holding that registration of a domain name consisting of a slight misspelling of the complainant’s mark and affiliation of that domain name with the complainant’s affiliate program constituted bad faith per Policy ¶ 4(a)(iii)). The Panel agrees with Complainant, and finds that Respondent has engaged in typosquatting and registered and used the disputed domain name in bad faith per Policy ¶ 4(a)(iii).
Thus, Complainant has also 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 <revszilla.com> domain name be TRANSFERRED from Respondent to Complainant.
David A. Einhorn, Panelist
Dated: January 10, 2019
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