Taboola.com Ltd. v. Roland Dushku
Claim Number: FA2301002028097
Complainant is Taboola.com Ltd. ("Complainant"), Israel, self-represented. Respondent is Roland Dushku ("Respondent"), Ukraine.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <taboolacheck.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 Forum electronically on January 18, 2023; Forum received payment on January 18, 2023.
On January 18, 2023, NameCheap, Inc. confirmed by email to Forum that the <taboolacheck.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 January 20, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 9, 2023 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@taboolacheck.com. Also on January 20, 2023, 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, Forum transmitted to the parties a Notification of Respondent Default.
On February 13, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed David E. Sorkin 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
Complainant describes itself as "the world's leading content discovery platform." Complainant states that it employs more than 1,300 people in its offices located in countries around the world and provides content recommendations to more than one billion unique visitors each month. Complainant has used TABOOLA and related marks in connection with its services since 2007. Complainant owns United States trademark registrations for TABOOLA in standard character and stylized form and for other TABOOLA-formative marks.
The disputed domain name <taboolacheck.com> was registered in November 2022. The name is registered in the name of a privacy registration service on behalf of Respondent. The domain name resolves to a web page that states only "Hi, your code number is:" followed by a string of letters and numbers. Complainant states that Respondent is not commonly known by the domain name, is not a licensee of Complainant, and is not authorized to use Complainant's mark.
Complainant contends on the above grounds that the disputed domain name <taboolacheck.com> is confusingly similar to its TABOOLA 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 <taboolacheck.com> incorporates Complainant's registered TABOOLA trademark, adding the generic term "check" 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., Taboola.com Ltd. v. Abd Multi, FA 2028098 (Forum Feb. 13, 2023) (finding <taboolapixel.com> confusingly similar to TABOOLA); Taboola.com Ltd. v. Ma Long, FA 2010823 (Forum Oct. 7, 2022) (finding <taboolapro.com> confusingly similar to TABOOLA); Taboola.com Ltd. v. Boris Zoharov, FA 2010540 (Forum Sept. 29, 2022) (finding <taboola-code.com> confusingly similar to TABOOLA); Taboola.com Ltd. v. Elisabeth Dunn, FA 1896261 (Forum June 11, 2020) (finding <authenticaion-taboola.com> confusingly similar to TABOOLA); Snapchat, Inc. v. PRIVATE REGISTRANT / A HAPPY DREAMHOST CUSTOMER, FA 1593519 (Forum Jan. 12, 2015) (finding <snapchatcheck.com> confusingly similar to SNAPCHAT). 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 for a website displaying what the Panel infers to be a randomly generated number. Such use is unlikely to give rise to rights or legitimate interests under the Policy. Compare Taboola.com Ltd. v. Ma Long, supra (finding lack of rights or interests where domain name resolved to a landing page that read "It works") with Snapchat, Inc. v. PRIVATE REGISTRANT / A HAPPY DREAMHOST CUSTOMER, supra (declining to find lack of rights or interests where domain name resolved to page purporting to allow users to determine whether their data was leaked in complainant's security breach).
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)(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 incorporating Complainant's coined mark, and its sole apparent use is for a nearly empty website that displays a "code number" without any explanation. The domain name is registered in the name of a privacy registration service, and Respondent has not come forward to offer any explanation for the selection or intended use of the domain name. Under the circumstances, the Panel considers it reasonable to infer that the domain name was registered and is being used to create and exploit confusion with Complainant's mark for commercial gain. See, e.g., Taboola.com Ltd. v. Abd Multi, supra (finding bad faith registration and use in similar circumstances); Taboola.com Ltd. v. Ma Long, supra (same); Taboola.com Ltd. v. Boris Zoharov, supra (same). The Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <taboolacheck.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: February 15, 2023
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