BigBang Media LLC v. Domain Administrator / See PrivacyGuardian.org
Claim Number: FA2101001928074
Complainant is BigBang Media LLC ("Complainant"), represented by Matthew Shayefar of Law Office of Matthew Shayefar, PC, California, USA. Respondent is Domain Administrator / See PrivacyGuardian.org ("Respondent"), Arizona, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <spankbang.party>, registered with NameSilo, 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 E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 12, 2021; the Forum received payment on January 12, 2021.
On January 13, 2021, NameSilo, LLC confirmed by email to the Forum that the <spankbang.party> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 January 13, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 2, 2021 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@spankbang.party. Also on January 13, 2021, the Written Notice of the Complaint, notifying Respondent of the email 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 7, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 has used the SPANKBANG mark since 2011 in connection with an adult-themed website. Complainant claims that the website has millions of monthly users and (according to a SimilarWet report) over 260 million visits in the last six months of 2020. Complainant owns trademark registrations for SPANKBANG in the United States and Canada.
Respondent registered the disputed domain name <spankbang.party> in August 2019 and is using it for a competing website that displays the SPANKBANG mark and, according to Complainant, uses a layout similar to that used by Complainant's site and provides nearly identical services. Complainant states that Respondent is not commonly known by the disputed domain name and has not received any license, right, or permission to use Complainant's mark.
Complainant contends on the above grounds that the disputed domain name <spankbang.party> is identical or confusingly similar to its SPANKBANG mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is identical to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used 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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <spankbang.party> corresponds to Complainant's registered SPANKBANG trademark, with the ".party" top-level domain appended thereto. The addition of a top-level domain is normally irrelevant for purposes of paragraph 4(a)(i) of the Policy. See, e.g., BigBang Media LLC v. Ruslan Khalimov, FA 1906871 (Forum Aug. 26, 2020) (finding <spankbang.porn> identical to SPANKBANG); Screen Actors Guild - American Federation of Television & Radio Artists v. Lan Wei, FA 1681144 (Forum Aug. 3, 2016) (finding <sag.party> identical or confusingly similar to SAG). The Panel considers the disputed domain name to be identical to Complainant's registered mark.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization, and it is being used for a directly competing website that displays Complainant's mark and uses the same layout as Complainant's website, presumably with the intent to attract Internet users seeking Complainant's website and mislead them into believing that Respondent's website is authorized by or associated with Complainant. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Beauty Holding, LLC v. Benjamin Wilde, FA 1925183 (Forum Jan. 18, 2021) (finding lack of rights or interests arising from websites mimicking complainant's website); BigBang Media LLC v. Ruslan Khalimov, supra (finding lack of rights or interests arising from website mimicking complainant's site and displaying its logo); Quora, Inc. v. Santosh Kalwar, FA 1866468 (Forum Nov. 15, 2019) (finding lack of rights or interests arising from copycat versions of complainant's website and mobile app).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
The disputed domain name corresponds to Complainant's mark and is being used for a directly competing website that displays the mark and uses the same layout as Complainant's website, presumably for the purpose of creating and profiting from confusion. It is registered in the name of a privacy registration service, shielding the identity of the actual registrant. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., Beauty Holding, LLC v. Benjamin Wilde, supra (finding bad faith in similar circumstances); BigBang Media LLC v. Ruslan Khalimov, supra (same); Quora, Inc. v. Santosh Kalwar, supra (same). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <spankbang.party> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: February 8, 2021
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