Blizzard Entertainment, Inc. v. Antoinette Bargas
Claim Number: FA2102001931265
Complainant is Blizzard Entertainment, Inc. (“Complainant”), represented by Adam D. Mandell of Millen, White, Zelano & Branigan, P.C., Virginia, USA. Respondent is Antoinette Bargas (“Respondent”), Illinois, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <blizzardbattlegames.net>, 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 8, 2021; the Forum received payment on February 8, 2021.
On February 8, 2021, NameSilo, LLC confirmed by e-mail to the Forum that the <blizzardbattlegames.net> 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 February 10, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 2, 2021 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@blizzardbattlegames.net. Also on February 10, 2021, 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.
A timely Response was received and determined to be complete on February 11, 2021.
On February 15, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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 contends as follows:
Complainant is a premier developer and publisher of entertainment software and critically acclaimed games.
Complainant has rights in the BLIZZARD mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <blizzardbattlegames.net> domain name is confusingly similar to Complainant’s BLIZZARD mark. Respondent incorporates the mark in its entirety and adds the generic terms “battle” and “games” along with the “.net” generic top-level domain name. (“gTLD”).
Respondent lacks rights or legitimate interests in the <blizzardbattlegames.net> domain name as Respondent is not commonly known by the at-issue domain name, nor did Complainant authorize Respondent to use the BLIZZARD marks in any way. Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Respondent’s domain name resolves to a webpage that is identical to Complainant’s webpage in an attempt to pass off or impersonate Complainant.
Respondent registered and used the <blizzardbattlegames.net> domain name in bad faith as the Complainant’s trademark is famous in the United States and throughout the world. Respondent’s domain name addresses a webpage identical to Complainant’s actual webpage which indicates intent to create confusion and a connection with a fraudulent scheme to impersonate Complainant. There is no plausible explanation for the registration of the at-issue domain name except to trade on Complainant’s goodwill.
B. Respondent
Respondent contends as follows:
The domain name <blizzardbattlegames.net> is only used by a personal privacy user, it’s not open for public user. The current owner of this domain name will never tell anyone about the name <blizzardbattlegames.net>, on the internet. This domain name’s holder hopes that the name <blizzardbattlegames.net> will not be taken away forcibly.
Complainant has rights in the BLIZZARD trademark.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademarks in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in the BLIZZARD trademark.
Respondent uses <blizzardbattlegames.net> to attempt to pass itself off as Complainant and in furtherance thereof hosted a website which is a copy of one officially operated by Complainant.
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”).
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant shows that it has a USPTO registration for its BLIZZARD trademark. Such registration is sufficient to demonstrate Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Microsoft Corp. v. Burkes, FA 652743 (Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”).
Respondent’s <blizzardbattlegames.net> domain name contains Complainant’s BLIZZARD trademark, followed by the descriptive term(s) “battlegames,” with all followed by a domain name-necessary top-level name, here “.net”. The differences between Respondent’s domain name and Complainant’s trademark are insufficient to distinguish the <blizzardbattlegames.net> domain name from Complainant’s BLIZZARD trademark for the purposes of Policy ¶ 4(a)(i). Therefore, the Panel concludes that Respondent’s <blizzardbattlegames.net> domain name is confusingly similar to Complainant’s trademark. See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy).
Respondent fails to take issue with Complainant’s contentions regarding either Complainant’s rights in a mark or the domain name’s similarity to Complainant’s BLIZZARD trademark.
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006).
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
The WHOIS information for the at-issue domain name identifies the domain name’s registrant as “Antoinette Bargas” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by the <blizzardbattlegames.net> domain name. The Panel therefore concludes that Respondent is not commonly known by the <blizzardbattlegames.net> domain name for the purposes of Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Additionally, Respondent uses the <blizzardbattlegames.net> to pass itself off as Complainant and direct internet users to what appears to be a copy of Complainant’s genuine website. Respondent’s use of the confusingly similar <blizzardbattlegames.net> domain name to pass itself off as Complainant in this manner is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding the respondent did not use the domain name to make a bona fide offering of goods or services per Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii) where the website resolving from the disputed domain name featured the complainant’s mark and various photographs related to the complainant’s business).
Although Respondent has responded to the Complaint, Respondent fails to make any legal argument which might lead the Panel to conclude that it has rights or legitimate interests in the <blizzardbattlegames.net> domain name.
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶ 4(a)(ii).
Respondent’s <blizzardbattlegames.net> domain name was registered and used in bad faith. As discussed below without limitation, bad faith circumstances are present which compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy. Respondent fails to address the issue of bad faith in its Response.
As mentioned above regarding rights and legitimate interests, Respondent uses the confusingly similar at-issue domain name to try to pass itself off as Complainant and in furtherance of thereof addresses a website masquerading as Complainant’s genuine website. Respondent’s use of the <blizzardbattlegames.net> domain name thus creates the impression that Respondent’s confusingly similar domain name and website are sponsored by, or affiliated with, Complainant when there is no such sponsorship or affiliation. Respondent’s use of <blizzardbattlegames.net> in this manner demonstrates Respondent’s bad faith under Policy ¶ 4(b)(iv). 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.”).
Moreover, Respondent registered <blizzardbattlegames.net> knowing that Complainant had trademark rights in the BLIZZARD mark. Respondent’s prior knowledge is evident from the notoriety of Complainant’s trademark and from Respondent’s use of the domain name to pass itself off as Complainant by addressing a copy of Complainant’s genuine website as discussed elsewhere herein. It is thus clear that Respondent intentionally registered the at-issue domain name to improperly exploit its trademark value, rather than for some benign reason. Respondent’s prior knowledge of Complainant's trademark independently indicates that Respondent registered and used the <blizzardbattlegames.net> domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had "actual knowledge of Complainant's mark when registering the disputed domain name"); see also Twentieth Century Fox Film Corporation and Fox International Channels (US), Inc. v. Daniel Pizlo / HS, FA1412001596020 (Forum Jan. 27, 2015) (finding that the respondent must have had actual knowledge of the complainant and its rights in the FOX LIFE mark, where the respondent was using the disputed domain name to feature one of the complainant’s videos on its website, indicating that the respondent had acted in bad faith under 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 <blizzardbattlegames.net> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: February 16, 2021
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