Twitter, Inc. v. ömer faruk / Omer Faruk
Claim Number: FA2203001988966
Complainant is Twitter, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is ömer faruk / Omer Faruk (“Respondent”), Turkey.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <twitter-self.com> and <twitter-secure.com>, registered with Google 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.
Debrett G Lyons as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 18, 2022; the Forum received payment on March 18, 2022.
On Mar 21, 2022, Google LLC confirmed by e-mail to the Forum that the <twitter-self.com> and <twitter-secure.com> domain names are registered with Google LLC and that Respondent is the current registrant of the names. Google LLC has verified that Respondent is bound by the Google 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 March 21, 2022, the Forum served the Complaint and all Annexes, including a Turkish and English Language Written Notice of the Complaint, setting a deadline of April 11, 2022 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@twitter-self.com, postmaster@twitter-secure.com. Also on March 21, 2022, the Turkish and English Language 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 April 20, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Debrett G. Lyons 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.
Preliminary IssueS
A. LANGUAGE
Turkish is the language of the Registration Agreement and therefore the language of the proceedings is Turkish. Nevertheless, Complainant submits that:
…the proceeding should be conducted in English since the disputed domain names resolve to websites that are entirely in English, Respondent is sending correspondence in English using the disputed domains, the disputed domain names comprise English words and English gTLD’s, and Respondent is using the disputed domain names to target a US company.
Pursuant to Rule 11(a), the Panel finds those submissions persuasive of the likelihood that Respondent is conversant in English and so the Panel decides that the proceeding should continue in English.
B. RESPONDENT
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.” The Panel finds in this case that there is in fact only one domain name holder. The nominal registrants have the same name but for the trivial omission of a diacritical mark in one instance of the “o” of Omer. The registrant information shares other commonalities.
A. Complainant
Complainant asserts trademark rights in TWITTER. Complainant holds national registrations for those trademarks. Complainant submits that the disputed domain names are confusingly similar to its trademarks.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain names.
Complainant alleges that Respondent registered and used the disputed domain names in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The factual findings pertinent to the decision in this case are that:
1. Complainant is a well-known social media company doing business by reference to the trademark, TWITTER;
2. Complainant owns, inter alia, United States Patent and Trademark Office (“USPTO”) Reg. No. 3,619,911, registered May 12, 2009 for the trademark TWITTER;
3. the disputed domain names were registered in March 2022 and resolve to webpages using Complainant’s trademark and logo and attempting to pass themselves off as sites maintained by Complainant;
4. further, the domain names have been used to send mails advising users to change their TWITTER passwords; and
5. there is no commercial agreement between the parties and Complainant has not authorized Respondent to use its trademark or to register any domain name incorporating its trademark.
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.
Paragraph 4(a)(i) of the Policy requires a two-fold enquiry—a threshold investigation into whether a complainant has rights in a trademark, followed by an assessment of whether the disputed domain name is identical or confusingly similar to that trademark.
It is well established by decisions under this Policy that a trademark registered with a national authority is evidence of trademark rights (see, for example, Mothers Against Drunk Driving v. phix, FA 174052 (Forum Sept. 25, 2003)). Complainant therefore has rights since it provides proof of registration of the trademark TWITTER with the USPTO, a national trademark authority.
The Panel finds that the disputed domain names are confusingly similar to the trademark. For the purposes of comparison of the disputed domain names with the trademark, the gTLD can be disregarded. The domain names merely hyphenate the descriptive terms “self”, or “secure”, to the trademark. The trademark remains the dominant and recognizable part of the domain names (see, for example, Dell Inc. v. Protection of Private Person / Privacy Protection, FA 1681432 (Forum Aug. 1, 2016) (“A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax requires TLDs.”); Skechers U.S.A., Inc. and Skechers U.S.A., Inc. II v. Svensson Viljae, FA 1784650 (Forum June 1, 2018) finding confusing similarity where “[t]he disputed domain name <skechers-outlet.com> adds a hyphen and the generic term ‘outlet’ to Complainant's registered SKECHERS mark, and appends the ‘.com’ top-level domain.”).
Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy.
Paragraph 4(c) of the Policy states that any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate rights or legitimate interests to a domain name for purposes of paragraph 4(a)(ii) of the Policy:
(i) before any notice to you of the dispute, your use 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) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Complainant need only make out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain names, after which the onus shifts to Respondent to rebut that case by demonstrating those rights or interests (see, for example, Do The Hustle, LLC v. Tropic Web, D2000‑0624 (WIPO Aug. 21, 2000)).
The domain name owners were concealed from the public but in consequence of these proceedings the name of the underlying owner was disclosed. That name does not carry any suggestion that Respondent might be commonly known by the domain names. Complainant asserts that it did not authorize Respondent to register or use its trademark, and that Respondent is not affiliated with, associated with, or otherwise endorsed by Complainant.
There is no evidence that Respondent has any trademark rights. There has been no bona fide offering of goods or services or legitimate noncommercial or fair use of the domain names. The evidence is that the disputed domain names have been used for a nefarious purpose to phish for sensitive personal information from users of Complainant’s social media platform.
A prima facie case has been made and so the onus shifts to Respondent (see, for example, iFinex Inc. v. Yuri Hefetz / Genie-Solution, FA 1789385 (Forum July 9, 2018) where the respondent mimicked the complainant’s website in order to cause customers to falsely believe they are setting up a new account with the complainant was held to be prima facie evidence of the respondent’s lack of rights and legitimate interests in the disputed domain name).
In the absence of a Response, the Panel finds that Respondent has not discharged the onus and finds the Respondent has no rights or interests. Complainant has satisfied the second limb of the Policy.
Complainant must prove on the balance of probabilities both that the disputed domain names were registered and used in bad faith.
Further guidance on that requirement is found in paragraph 4(b) of the Policy, which sets out four circumstances, any one of which is taken to be evidence of the registration and use of a domain name in bad faith if established.
The four specified circumstances are:
(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, respondent has intentionally attempted to attract, for commercial gain, internet users to respondent’s website 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 the respondent’s website or location or of a product or service on the site or location.’
The Panel finds that Respondent’s conduct falls under paragraph 4(b)(iv) above. The Panel has already found the domain names to be confusingly similar to the trademark. The phishing scheme deploys the resolving websites and the deceptive emails for commercial gain in some form or another. In terms of the Policy, the Panel finds that Respondent is using the domain names to intentionally attract, for commercial gain, internet users to its websites by creating a likelihood of confusion with the trademark as to the source, sponsorship, affiliation, or endorsement of those websites (see, for example, 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.”).
The Panel finds registration and use of the domain names in bad faith and so finds that Complainant has satisfied the third and final element of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <twitter-self.com> and <twitter-secure.com> domain names be TRANSFERRED from Respondent to Complainant.
Debrett G. Lyons, Panelist
April 22, 2022
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