PLEXLINKS.COM v. aniket rana
Claim Number: FA2302002031564
Complainant is PLEXLINKS.COM (“Complainant”), represented by Christopher J. Palermo of Baker Botts L.L.P., USA. Respondent is aniket rana (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <plexlinks.com>, registered with GoDaddy.com, LLC.
Hon. Karl v. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to Forum electronically on February 13, 2023; Forum received payment on February 13, 2023.
On February 13, 2023, GoDaddy.com, LLC confirmed by e-mail to Forum that the <plexlinks.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 February 14, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 6, 2023 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@plexlinks.com. Also on February 14, 2023, 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.
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, Plex, Inc., is a media streaming and computer software management service. Complainant has rights in the PLEX mark through numerous trademark registrations, including with the United States Patent and Trademark Office (“USPTO”) (e.g., USPTO Reg. No. 4,521,345, which was registered on April 29, 2014). Respondent’s <plexlinks.com> domain name is confusingly similar to the PLEX mark as it includes the entire mark and merely adds the word “links” and the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <plexlinks.com> domain name since Respondent is not licensed or authorized to use Complainant’s PLEX mark and is not commonly known by the disputed domain name. In addition, Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent seeks to divert Internet users by falsely associating themselves with Complainant to conduct a phishing scheme.
Respondent registered and uses the <plexlinks.com> domain name in bad faith by confusing consumers as to the source or affiliation of the domain name and resolving site for commercial gain. Further, Respondent is phishing for personal information.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, based upon the uncontested allegations and evidence, the Panel finds that Complainant is entitled to the requested relief of transfer of the <plexlinks.com> domain name.
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 claims rights in the PLEX mark through multiple trademark registrations, including with the USPTO (e.g., USPTO Reg. No. 4,521,345, which was registered on April 29, 2014). Registration of a mark with the USPTO is a valid showing of rights in a mark under Policy ¶ 4(a)(i). See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (stating, “Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”). Since Complainant provides evidence of registration of the PLEX mark with the USPTO, the Panel finds that Complainant has demonstrated rights in the PLEX mark per Policy ¶ 4(a)(i).
Complainant argues that the <plexlinks.com> domain name is confusingly similar to its PLEX mark since it uses the entire mark and then merely adds the term “links,” which users may confuse as related to Complainant’s services, and the “.com” gTLD. When a disputed domain name wholly incorporates another’s mark, additional terms are insufficient to defeat a finding of confusing similarity. See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”). Similarly, gTLDs are irrelevant for purposes of Policy ¶ 4(a)(i) analysis. See Blue Cross and Blue Shield Association v. Shi Lei aka Shilei, FA 1784643 (Forum June 18, 2018) (“A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax requires TLDs.”). Respondent only adds a generic term and gTLD to the PLEX mark. The Panel finds that <plexlinks.com> is confusingly similar to Complainant’s PLEX mark under Policy ¶ 4(a)(i).
Complainant has proved this element.
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”). The Panel finds that Complainant has made a prima facie case.
Complainant argues that Respondent has no rights or legitimate interests in the <plexlinks.com> domain name because Respondent is not commonly known by the disputed domain name and Complainant has never licensed rights to or authorized Respondent to use the PLEX mark. In the absence of a response, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name. See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same). In addition, where there is no evidence to indicate a complainant has authorized the use of a mark, it may act as support that a respondent is not commonly known by the disputed domain name and thus lacks any rights or legitimate interest in the disputed domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”); see also Navistar International Corporation v. N Rahmany, FA 1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). The WHOIS information for <plexlinks.com> lists the registrant as “aniket rana.” The Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Complainant also contends that Respondent seeks to trade off of the goodwill associated with the PLEX mark by diverting confused customers to a site that purports to be affiliated with Complainant. Previous Panels have found that use of a domain name to mislead and divert customers away from a complainant does not constitute either a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Ripple Labs Inc. v. NGYEN NGOC PHUONG THAO, FA 1741737 (Forum Aug. 21, 2017) (“Respondent uses the [disputed] domain name to divert Internet users to Respondent’s website… confusing them into believing that some sort of affiliation exists between it and Complainant… [which] 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).”). In addition, Panels have declined to find a bona fide offering of goods or services or a legitimate noncommercial or fair use of a domain name when a respondent diverts traffic to a site that imitates a complainant. See Dell Inc. v. Devesh Tyagi, FA 1785301 (Forum June 2, 2018) (“Respondent replicates Complainant’s website and displays Complainant’s products. The Panel finds that this use is not a bona fide offering of goods or services under Policy ¶¶ 4(c)(i) & (iii).”). In this case, Complainant provides evidence that <plexlinks.com> resolves to a site that prominently features the PLEX mark and nearly identical PLEX logo. Respondent also advertises the site to create a PLEX streaming account and provide other services Complainant offers under the PLEX mark and its streaming business. The Panel agrees that Respondent appears to be diverting and confusing Internet users by passing off as or as affiliated with Complainant and finds that Respondent does not make a bona fide offering of goods or services and legitimate noncommercial or fair use of the <plexlinks.com> domain name under Policy ¶¶ 4(c)(i) and (iii).
Complainant claims that Respondent uses the <plexlinks.com> domain name to phish for personal information. Phishing has consistently been held not to satisfy Policy ¶¶ 4(c)(i) or (iii). See, e.g., DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (”Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”); 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 resolving webpage for <plexlinks.com> offers a place for users to input a code, which Complainant explains is a user’s confidential activation code used as a security measure for customers to access Complainant’s services. At Respondent’s site, when users enter their code they are invited to call a telephone number—which is not Complainant’s legitimate number—to verify their account. As such, Complainant argues that Respondent uses the site to steal activation codes, and possibly other sensitive information, which would allow Respondent free access to Complainant’s services and the ability to charge a customer’s account. The Panel finds that Respondent is engaging in illegal phishing and that Respondent lacks rights or legitimate interests in respect of the <plexlinks.com> domain name under Policy ¶¶ 4(c)(i) and (iii).
Complainant has proved this element.
Complainant argues that Respondent registered and uses the <plexlinks.com> domain name in bad faith by confusing customers as to the source or affiliation of the disputed domain name by using a confusingly similar domain name and hosting a website that falsely associates itself with Complainant. When a disputed domain name is found confusingly similar to a mark that is well-known and clearly connected with a good or service, Panels have presumed that a Respondent seeks to cause confusion and attract users for commercial gain. See Metro. Life Ins. Co. v. Bonds, FA 873143 (Forum Feb. 16, 2007) (“The Panel finds such use to constitute bad faith registration and use pursuant to Policy ¶ 4(b)(iv), because [r]espondent is taking advantage of the confusing similarity between the <metropolitanlife.us> domain name and Complainant’s METLIFE mark in order to profit from the goodwill associated with the mark.”); see also Am. Univ. v. Cook, FA 208629 (Forum Dec. 22, 2003) (“Registration and use of a domain name that incorporates another's mark with the intent to deceive Internet users in regard to the source or affiliation of the domain name is evidence of bad faith.”). Similarly, a respondent’s use of a domain name for a site that passes itself off as or as associated with a complainant is also evidence of bad faith attraction for commercial gain. See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum December 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.”); see also Am. Int’l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003) (finding that the disputed domain name was registered and used in bad faith where the respondent hosted a website that “duplicated Complainant’s mark and logo, giving every appearance of being associated or affiliated with Complainant’s business . . . to perpetrate a fraud upon individual shareholders who respected the goodwill surrounding the AIG mark”). Respondent’s webpage displays the PLEX mark and logo and provides various references to Complainant and Complainant’s streaming services. Respondent seeks to cause customer confusion through the <plexlinks.com> domain name and its resolving site which is evidence of bad faith under Policy ¶ 4(b)(iv).
Complainant also argues that Respondent is using the <plexlinks.com> domain name to phish for confidential information from customers. Phishing has been used as independent evidence of bad faith. See Google Inc. v. Domain Admin / Whois Privacy Corp., FA 1506001622862 (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)). The resolving webpage for <plexlinks.com> offers a place for users to input a personal code. The Panel finds that Respondent’s phishing operation is additional evidence of bad faith per Policy ¶ 4(a)(iii) and finds that Respondent registered and uses the disputed domain name in bad faith.
Complainant has proved this element.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <plexlinks.com> domain name be TRANSFERRED from Respondent to Complainant.
______________________________________________________________
Hon. Karl V. Fink (Ret.) Panelist
March 16, 2023
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