Twitter, Inc. v. Qq
Claim Number: FA2209002011222
Complainant is Twitter, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is Qq (“Respondent”), Turkey.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <twitterhelpermanager.com> and <twitterhelper-manager.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 Forum electronically on September 8, 2022; Forum received payment on September 8, 2022.
On September 8, 2022, Google LLC confirmed by e-mail to Forum that the <twitterhelpermanager.com> and <twitterhelper-manager.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 September 8, 2022, Forum served the Complaint and all Annexes, including a Turkish and English language Written Notice of the Complaint, setting a deadline of September 28, 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@twitterhelpermanager.com, postmaster@twitterhelper-manager.com. Also on September 8, 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, Forum transmitted to the parties a Notification of Respondent Default.
On October 7, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Debrett G. Lyons as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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 Respondent to Complainant.
The Registration Agreements are written in Turkish, thereby making the language of the proceedings Turkish (Rule 11(a)). Nevertheless, Complainant has alleged that Respondent is proficient in English and so the proceeding should be conducted in English.
The Panel has the discretion under UDRP Rule 11 to determine the appropriate language taking into consideration the particular circumstances of the administrative proceedings. Facility of the parties in another language is one of those circumstances. Here, the use of the domain names is best described in the Complaint, as follows:
The disputed domain names initially resolve to messages stating, “This site has been reported as unsafe” and “Microsoft recommends you don’t continue to this site. It has been reported to Microsoft for containing misleading content that could lead you lose personal info, financial data, and even money.”
Bypassing these warnings currently leads to inactive pages.
The disputed domains have previously resolved to a Twitter-Logo branded phishing site comprising a fake “Copyright Infringement Detected in Your Account” warning. The warning continues, “If you think copyright infringement is incorrect, you should provide feedback on the form. If you can’t give feedback, Your account will be permanently deleted from our servers within 24 hours!” The copyright legend reads, “© 2022 Twitter, Inc.”
Having taken the Rules into account and paying regard to the obvious ability of Respondent in English, the Panel finds that these administrative proceedings should continue in English.
A. Complainant
Complainant asserts trademark rights in TWITTER. Complainant holds a national registration for that trademark. Complainant submits that the disputed domain names are confusingly similar to its trademark.
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 provides communication services by reference to the trademark, TWITTER, registered, inter alia, with United States Patent & Trademark Office (“USPTO”) as Reg. No. 3,619,911 registered November 12, 2009;
2. the disputed domain names were registered on August 16, 2022 and their use has been described above; and
3. there is no relationship between the parties and Complainant has not authorized Respondent to use its trademark or to register any domain name incorporating the 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 its registration of TWITTER with the USPTO, a national trademark authority.
For the purposes of comparison of the domain names with the trademark, the gTLD “.com” can be disregarded as trivial. Thereafter, the names merely combine the trademark with descriptive words of no distinctive value. In each case the trademark remains the recognizable part of the domain name and the Panel finds the names to be confusingly similar to the trademark (see, for example, Twitter, Inc. v. Walia, FA2206002002608 (Forum July 28, 2022) finding <twitter-managehelp.com> confusingly similar to TWITTER; Twitter, Inc. v. qwewqqwwqe et. al., FA2204001992610 (Forum May 27, 2022) finding <twitter-helping.com> and <twitter-managed.com> confusingly similar to TWITTER; Twitter, Inc. v. baran, FA2204001991016 (Forum May 3, 2022) finding <twitter-manage.com> and <twitter-management.com> confusingly similar to TWITTER).
The Panel therefore finds that 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 name of the underlying domain name holder, as disclosed by the Registrar, is “Qq”. That name does not provide any indication that Respondent might be commonly known by either of the domain names. There is no evidence that Respondent has any trademark rights. Complainant states that there is no association between the parties and Respondent has no authority to use the trademark.
The use, already described, does not comprise a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii) (see, for example, Bloomberg L.P. v. SC Media Servs. & Info. SRL, FA 0296583 (Forum Sept. 2, 2004) finding that resolution to an empty page is evidence that Respondent fails to actively use the disputed domain name, suggesting a lack of rights and legitimate interests in the disputed domain name); Dell Inc. v. link growth / Digital Marketing, FA 1785283 (Forum June 7, 2018) (“Respondent’s domain names currently display template websites lacking any substantive content. The Panel finds that Respondent has does not have rights or legitimate interests with respect of the domain name per Policy ¶¶ 4(c)(i) or (iii).”); Enterprise Holdings, Inc. v. I S / Internet Consulting Services Inc., FA 1785242 (Forum June 5, 2018) (“On its face, the use of a domain name that is confusingly similar to the mark of another in order to facilitate a phishing scheme cannot be described as either a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).
The onus shifts to Respondent and, in the absence of a Response, Panel finds that Respondent has no rights or interests and so finds that 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 in bad faith 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 actions fall squarely under paragraph 4(b)(iv) above. The Panel has already found confusing similarity. In their earlier states, the resolving websites existed for some fraudulent commercial gain. In terms of the Policy, the Panel finds that Respondent has intentionally used the Disputed Domain Names to attract, for commercial gain, internet users to its websites by creating a likelihood of confusion with as to the source, sponsorship, affiliation, or endorsement of those websites (see, for example, Amazon Technologies, Inc. v. jaskima smith, FA 1750160 (Forum Oct. 26, 2017) finding the respondent registered and used the disputed domain name in bad faith to pass off as the complainant in an attempt to gain personal information from users who mistakenly access the website; Capital One Fin. Corp. & Capital One Bank v. Howel, FA 289304 (Forum Aug. 11, 2004) (“The <capitalonebank.biz> domain name is confusingly similar to Complainant’s mark, it is being used to redirect Internet users to a website that imitates Complainant’s credit application website, and it is being used to fraudently [sic] acquire personal information from Complainant’s clients. Respondent’s use of the domain name supports findings of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”); Google Inc. v. Domain Admin / Whois Privacy Corp., FA1506001622862 (Forum Aug. 10, 2015) (finding that the respondent’s apparent use of the disputed domain name in furtherance of a ‘phishing’ scheme further established its bad faith registration and use of the disputed domain name under Policy ¶ 4(a)(iii)).
Panel 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 <twitterhelpermanager.com> and <twitterhelper-manager.com> domain names be TRANSFERRED from Respondent to Complainant.
Debrett G. Lyons, Panelist
Dated: October 10, 2022
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