Plex, Inc. v. jjoyti singh
Claim Number: FA2210002014574
Complainant is Plex, Inc. (“Complainant”), represented by Christopher J. Palermo of Baker Botts L.L.P., Texas, USA. Respondent is jjoyti singh (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <plex-tv-link.com>, registered with GoDaddy.com, 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.
Ho-Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to Forum electronically on October 3, 2022; Forum received payment on October 3, 2022.
On October 4, 2022, GoDaddy.com, LLC confirmed by e-mail to Forum that the <plex-tv-link.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 October 5, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 25, 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@plex-tv-link.com. Also on October 5, 2022, 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.
Having received no response from Respondent, Forum transmitted to the parties a Notification of Respondent Default.
On October 28, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Ho-Hyun Nahm, Esq. 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 name be transferred from Respondent to Complainant.
A. Complainant
i) Complainant, Plex Inc., offers streaming software and online services. Complainant asserts rights in the PLEX mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g., reg. no. 4,521,345, registered April 29, 2014). The disputed domain name is confusingly similar to Complainant’s mark because it incorporates the PLEX mark in its entirety, merely adding the term “TV-LINK” and the generic top-level domain (“gTLD”) “.com” to form the disputed domain name.
ii) Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not licensed or authorized to use Complainant’s PLEX mark and is not commonly known by the disputed domain name. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to engage in a phishing scheme.
iii) Respondent registered and uses the disputed domain name in bad faith. Respondent uses the disputed domain name to engage in phishing.
B. Respondent
Respondent did not submit a Response in this proceeding.
1. The disputed domain name was registered on September 9, 2022.
2. Complainant has established rights in the PLEX mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g., reg. no. 4,521,345, registered April 29, 2014).
3. Respondent uses the disputed domain name to engage in a phishing scheme.
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”).
Complainant asserts rights in the PLEX mark based upon registration with the USPTO (e.g., reg. no. 4,521,345, registered April 29, 2014). Since Complainant has provided evidence of registration of the PLEX mark with the USPTO and other authorities, the Panel finds that Complainant has rights in the PLEX mark under Policy ¶ 4(a)(i).
Complainant contends that the disputed domain name <plex-tv-link.com> is confusingly similar to Complainant’s mark because it incorporates the PLEX mark in its entirety, merely adding the term “TV-LINK” and the gTLD “.com” to form the disputed domain name. The addition of generic or descriptive terms and gTLDs to a mark does not distinguish the disputed domain name from the mark incorporated therein per Policy ¶ 4(a)(i). See Vanguard Group Inc. v. Proven Fin. Solutions, FA 572937 (Forum Nov. 18, 2005) (holding that the addition of both the word “advisors” and the gTLD “.com” did not sufficiently alter the disputed domain name to negate a finding of confusing similarity under Policy ¶ 4(a)(i)). Therefore, the Panel finds that the disputed domain name is confusingly similar to the PLEX mark under Policy ¶ 4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”).
Complainant argues that Respondent does not have rights or legitimate interests in the disputed domain name because Respondent is not licensed or authorized to use Complainant’s PLEX mark and is not commonly known by the disputed domain name. Where a response is lacking, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed domain name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark). The WHOIS information for the disputed domain name lists the registrant as “jjoyti singh.” Therefore, the Panel finds Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Complainant asserts that Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to engage in a phishing scheme. Use of a disputed domain name to engage in phishing is neither 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 United States Postal Service v. Kehinde Okunola / Genuine ICT Centre, FA 1785420 (Forum June 6, 2018) (“Respondent uses the <uspscouriers.com> domain name both to sell services competing with the business of Complainant and to phish for personal identification information from Internet users. Neither of these uses of the domain name constitutes 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) such as would confirm in Respondent rights to or legitimate interests in the domain name as provided in those subsections of the Policy.”). Complainant has provided screenshots of the disputed domain name’s resolving webpage, showing an attempt to collect users’ personal information. Therefore, the Panel finds Respondent uses the disputed domain name for neither 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).
The Panel finds that Complainant has made out a prima facie case that arises from the considerations above. All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant argues that Respondent registered and uses the disputed domain name in bad faith because Respondent uses the disputed domain name to engage in a phishing scheme. Use of a disputed domain name to engage in phishing demonstrates bad faith under Policy ¶ 4(a)(iii). See Morgan Stanley v. Bruce Pu, FA 1764120 (Forum Feb. 2, 2018) (“[T]he screenshot of the resolving webpage allows users to input their name and email address, which Complainant claims Respondent uses that to fraudulently phish for information. Thus, the Panel agrees that Respondent phishes for information and finds that Respondent does so in bad faith under Policy ¶ 4(a)(iii).”).
Complainant contends that Respondent uses the disputed domain name with the goal of duping Complainant’s users into providing activation codes and other information for its own commercial gain. The disputed domain name includes Complainant’s PLEX mark in its entirety, repeatedly references Complainant’s legitimate domain name <plex.tv>, and directly solicits user information on websites improperly bearing Complainant’s PLEX stylized mark. At the very least, these acts are likely to confuse the public, including current and prospective users of Complainant’s PLEX service, as to the source of the service that Respondent offers via the website at the disputed domain name, and may induce Complainant’s customers to provide sensitive information under the guise of activating their televisions. The Panel recalls that Complainant has provided screenshots of the disputed domain name’s resolving webpage, showing an attempt to collect users’ personal information to support its contention. Therefore, the Panel finds Respondent registered and uses the disputed domain name 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 <plex-tv-link.com> domain name be TRANSFERRED from Respondent to Complainant.
Ho-Hyun Nahm, Esq., Panelist
Dated: October 31, 2022
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