BigBang Media LLC v. Miguel González / Gorlikowski Michal
Claim Number: FA2101001930270
Complainant is BigBang Media LLC (“Complainant”), represented by Matthew Shayefar of Law Office of Matthew Shayefar, PC, California, USA. Respondents are Miguel González, Mexico and Gorlikowski Michal, Poland.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <spankbang.me> and <spankbang.click>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 29, 2021. The Forum received payment on January 29, 2021.
On February 1, 2021, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <spankbang.me> and <spankbang.click> domain names are registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondents are the current registrants of the names. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondents are bound by the PDR Ltd. d/b/a PublicDomainRegistry.com registration agreement and have thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On February 2, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 22, 2021 by which Respondents could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondents’ registration as technical, administrative, and billing contacts, and to postmaster@spankbang.me and postmaster@spankbang.click. Also on February 2, 2021, the Written Notice of the Complaint, notifying Respondents of the e-mail addresses served and the deadline for a Response, was transmitted to Respondents via post and fax, to all entities and persons listed on Respondents’ registrations as technical, administrative and billing contacts.
Having received no response from Respondents, the Forum transmitted to the parties a Notification of Respondent Default.
On March 1, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Alan L. Limbury 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 names be transferred from Respondents to Complainant.
PRELIMINARY ISSUE: MULTIPLE RESPONDENTS
Paragraph 3(c) of the Rules provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder”. Paragraph 1(d) of the Forum's Supplemental Rules defines “The Holder of a Domain Name Registration” as “the single person or entity listed in the registration information, as verified by the Registrar, at the time of commencement” and sub-paragraph 1(d)(i) provides that a Complainant wishing to make an argument for a single Respondent having multiple aliases must comply with Supplemental Rules 4(c) and 17(a)(i).
Complainant contends that the domain names are effectively controlled by the same person. The domain names are registered with the same Registrar and resolve to similar websites with similar content. Both websites use the same email address for contact inquiries. Although the underlying contact details for the two domain names appears on its face to be different, Complainant submits that there is, at best, no “Miguel González,” and that the name is instead a “Latinization” of the name Michal Gorlikowski. The address provided in Mexico for “Miguel González” does not exist as far as Complainant is able to determine.
In the absence of any evidence to the contrary, the Panel is satisfied that the domain names are registered by the same domain name holder. Henceforth this decision will refer to Miguel González / Gorlikowski Michal as “Respondent”.
A. Complainant
Complainant operates a one of the world’s most popular adult entertainment websites at “www.spankbang.com”. Complainant has rights in the SPANKBANG mark based upon its consistent use since 2011 through its website and upon its registration in 2018 with the USPTO. Respondent’s <spankbang.me> and <spankbang.click> domain names are identical or confusingly similar to Complainant’s SPANKBANG mark.
Respondent has no rights or legitimate interests in the <spankbang.me> and <spankbang.click> domain names. Respondent is not commonly known by the domain names and Complainant has not authorized or licensed to Respondent any rights in the SPANKBANG mark. Further, Respondent does not use the domain names for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the domain names to pass itself off as Complainant.
Respondent registered and uses the <spankbang.me> and <spankbang.click> domain names in bad faith. Respondent disrupts Complainant’s business and attempts to attract Internet users to its competing websites for commercial gain. Respondent had knowledge of Complainant’s rights in the SPANKBANG mark at the time of registering the domain names.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
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”).
Complainant has shown that it has rights in the SPANKBANG mark based upon its longstanding use since 2011 for its “www.spankbang.com” website and upon its registration with the USPTO, Reg. No. 5,550,377 registered Aug. 28, 2018 with a claimed date of first use of March 1, 2011. The Panel finds each of Respondent’s <spankbang.me> and <spankbang.click> domain names to be identical to Complainant’s SPANKBANG mark as they contain the mark in its entirety and merely add the inconsequential “.me” and “.click” generic top-level domains (gTLDs), which may be ignored.
Complainant has established this element.
Paragraph 4(c) of the Policy sets out three illustrative circumstances as examples which, if established by Respondent, shall demonstrate rights to or legitimate interests in a disputed domain name for the purposes of paragraph 4(a)(ii) of the Policy, i.e.
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
Complainant registered the domain name <spankbang.com> on February 19, 2011 and has used it since then for its website, which has become one of the world’s most popular websites. The <spankbang.click> and <spankbang.me> domain names were registered on April 6, 2018 and September 23, 2018 respectively. They resolve to adult content websites having a similar layout and offering the same service as Complainant’s website.
These circumstances, coupled with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain names on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the domain names. See Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014). Respondent has made no attempt to do so.
In the circumstances of this case, the Panel finds that Respondent has no rights or legitimate interests in respect of the domain names.
Complainant has established this element.
Registration and Use in Bad Faith
This element requires Complainant to establish, on the balance of probability, that Respondent both registered the domain names in bad faith and is using them in bad faith.
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of a domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy, including:
(iv) by using the domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on its website or location.
In light of the circumstances set out above in relation to the second element, the Panel finds that Respondent clearly knew of Complainant’s SPANKBANG mark when registering the <spankbang.me> and <spankbang.click> domain names and that, by using them for websites virtually identical to Complainant’s website that purport to offer competing services, Respondent is masquerading as Complainant so as intentionally to attract, for commercial gain, Internet users to Respondent’s websites by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s websites.
See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”)
Accordingly, the Panel finds that Respondent registered and is using the disputed domain names in bad faith.
Complainant has established this element.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <spankbang.me> and <spankbang.click> domain names be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: March 4, 2021
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