Big Fish Games, Inc. v. Fuad Aliyev / IT Universe LLC
Claim Number: FA2204001991809
Complainant is Big Fish Games, Inc. ("Complainant"), represented by Jeffrey A. Nelson of Davis Wright Tremaine LLP, Washington, USA. Respondent is Fuad Aliyev / IT Universe LLC ("Respondent"), Georgia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bigfishgames.com.de>, 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 participated in the mandatory CentralNic Mediation, and the mediation process was terminated.
Complainant submitted a Complaint to the Forum electronically on April 11, 2022; the Forum received payment on April 11, 2022.
On April 11, 2022, the Forum transmitted to CentralNic Ltd, the registry for the <.com.de> domain, a notification that a complaint under the CentralNic Dispute Resolution Policy (the "CDRP" or "Policy") had been received concerning the <bigfishgames.com.de> domain name, and requesting that the domain name be locked pending this proceeding. CentralNic Ltd responded on April 13, 2022, confirming the request and supplying Respondent's contact information.
On April 13, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 3, 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@bigfishgames.com.de. Also on April 13, 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 May 9, 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 CentralNic Dispute Resolution Policy ("Rules"). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the CDRP, CDRP 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 is a developer and publisher of casual games for computers and mobile devices, and states that it has distributed more than 2.5 billion games to customers in 150 countries. Complainant and a predecessor in interest have used BIG FISH and related marks in connection with this business since 2002. Complainant owns United States trademark registrations for BIG FISH and BIG FISH GAMES in standard character form, and claims that the BIG FISH marks and brand are well known around the world.
Respondent is the registrant of the disputed domain name <bigfishgames.com.de>, registered in December 2019. The domain name is being used for a website that advertises online games. Clicking on one of the games opens a screen that prompts the user to log in or sign up for an account. Complainant states that Respondent is not commonly known by the domain name, is not affiliated with Complainant, and is not authorized or licensed to use Complainant's mark.
Complainant contends on the above grounds that the disputed domain name <bigfishgames.com.de> is confusingly similar to its BIG FISH GAMES 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 or 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 or is being used in bad faith.
The CDRP also requires that Complainant have participated in a CentralNic Mediation, and that the mediation have been terminated prior to the consideration of the Complaint.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy ("UDRP") and the CentralNic Dispute Resolution Policy, the Panel will draw upon UDRP principles as applicable in rendering its decision.
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 <bigfishgames.com.de> incorporates Complainant's registered BIG FISH GAMES trademark, omitting the spaces and appending the ".com.de" second-level domain. The omission of spaces and inclusion of a generic second-level domain like ".com.de" are normally disregarded for purposes of paragraph 4(a)(i) of the CDRP. See, e.g., Epic Games, Inc. v. WhoisGuard Protected / WhoisGuard, Inc., FA 1804257 (Forum Oct. 18, 2018) (finding <epicgames.com.se> identical or confusingly similar to EPIC GAMES); Big Fish Games, Inc. v. Download Soft, FA 892752 (Forum Mar. 1, 2007) (finding <bigfishgames.net> identical to BIG FISH GAMES). The Panel considers the disputed domain name to be identical 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. It is being used for a website that advertises directly competing goods or services and solicits personal information from users. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Calvin Klein Trademark Trust & Calvin Klein, Inc. v. Andrey Kutuzov, FA 1960028 (Forum Sept. 15, 2021) (finding lack of rights or interests where domain name was used to promote unauthorized or competing goods); NIKE, Inc., & Nike Innovate, C.V. v. Alireza Zare, FA 1731606 (Forum June 13, 2017) (finding lack of rights or interests where domain name was used to pass off as complainant and deceive users into revealing personal data); Big Fish Games, Inc. v. Download Soft, supra (finding lack of rights or interests where domain name was used to promote competing goods and services).
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 or is being used in bad faith. Under paragraph 4(b)(i) of the Policy, bad faith may be shown by evidence that a domain name was acquired "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 [Respondent's] documented out-of-pocket costs directly related to the Domain Name." Under paragraph 4(b)(iii), 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 registered a domain name corresponding to Complainant's registered mark and is using it to advertise directly competing goods or services and to solicit personal information from users. Such conduct is indicative of bad faith under the Policy. See, e.g., NIKE, Inc., & Nike Innovate, C.V. v. Alireza Zare, supra (finding bad faith where domain name was used to pass off as complainant in connection with a phishing scheme); Big Fish Games, Inc. v. Download Soft, supra (finding bad faith where domain name was used for website promoting competing goods and services). The Panel finds that the disputed domain name was registered or is being used in bad faith.
Having considered the three elements required under the CDRP Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bigfishgames.com.de> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: May 10, 2022
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page