Home Box Office, Inc. v. Shae Clair
Claim Number: FA2202001984346
Complainant is Home Box Office, Inc. ("Complainant"), represented by Erin S. Hennessy of Haynes and Boone, LLP, New York, USA. Respondent is Shae Clair ("Respondent"), Georgia, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <euphoriacasting.com>, registered with NameCheap, Inc..
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 February 14, 2022; the Forum received payment on February 14, 2022.
On February 14, 2022, NameCheap, Inc. confirmed by email to the Forum that the <euphoriacasting.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 21, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 14, 2022 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@euphoriacasting.com. Also on February 21, 2022, 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 March 16, 2022, 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 provides entertainment programming worldwide, including the teen drama television series Euphoria, which premiered in June 2019. Euphoria is available on various media platforms, including Complainant's video-on-demand streaming platform, HBOMax. Complainant owns numerous trademark registrations around the world for EUPHORIA, including two United States registrations for EUPHORIA in standard character form, both of which issued in 2020.
Respondent registered the disputed domain name <euphoriacasting.com> via a privacy registration service in January 2022. The domain name is being used for a website that mimics the look and feel of Complainant's HBOMax website, incorporating the same color scheme along with images copied from Complainant's Euphoria series. The website purports to offer opportunities to be cast as an actor on Euphoria, and prompts users to provide sensitive personal information. The website has been taken down following a report from Complainant to Respondent's webhosting service, but Complainant is concerned that Respondent may continue to use the domain name for fraudulent purposes. Complainant states that Respondent is not commonly known by the disputed domain name, is not affiliated with Complainant, and has not been authorized to use Complainant's EUPHORIA mark in any manner.
Complainant contends on the above grounds that the disputed domain name <euphoriacasting.com> is confusingly similar to its EUPHORIA 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 confusingly similar 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 <euphoriacasting.com> incorporates Complainant's registered EUPHORIA trademark, adding the generic term "casting" and the ".com" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Advance Magazine Publishers Inc. v. Contact Privacy Inc. / Youssef Nasser, CanadianVogue, Muna Shoman, Vouge Casting, D2020-3233 (WIPO Feb. 10, 2021) (finding <voguecasting.com> confusingly similar to VOGUE); Warner Bros. Entertainment Inc. v. Jon Dives d/b/a warnerfilms, FA 1248657 (Forum Apr. 16, 2009) (finding <warnercasting.com> confusingly similar to WARNER BROS.); Home Box Office, Inc. v. Cody Thompson, FA 1541930 (Forum Mar. 11, 2014) (finding <entouragemovie.com> and <entouragefilm.com> confusingly similar to ENTOURAGE). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
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 its sole apparent use has been to pass off as Complainant, presumably to phish for personal information from Internet users under false pretenses or for related fraudulent purposes. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Advance Magazine Publishers Inc. v. Contact Privacy Inc. / Youssef Nasser, CanadianVogue, Muna Shoman, Vouge Casting, supra (finding lack of rights or interests in similar circumstances); Pear Therapeutics, Inc. v. Richard Dinovits, FA 1917865 (Forum Nov. 23, 2020) (same).
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."
Respondent used a privacy registration service to register a domain name incorporating Complainant's registered mark, and is using the domain name for a website that passes off as Complainant for what appear to be fraudulent purposes. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., Advance Magazine Publishers Inc. v. Contact Privacy Inc. / Youssef Nasser, CanadianVogue, Muna Shoman, Vouge Casting, supra (finding bad faith registration and use in similar circumstances); Pear Therapeutics, Inc. v. Richard Dinovits, 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 <euphoriacasting.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: March 17, 2022
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