Crazy Games LLC v. Justin Ligeri
Claim Number: FA2203001988773
Complainant is Crazy Games LLC (“Complainant”), represented by J. Mark Dickison of LAWSON & WEITZEN, LLP, Massachusetts, USA. Respondent is Justin Ligeri (“Respondent”), Wyoming, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <crazygamesllc.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.
Steven M. Levy, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 17, 2022; the Forum received payment on March 17, 2022.
On March 17, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <crazygamesllc.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 March 18, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 7, 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@crazygamesllc.com. Also on March 18, 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, the Forum transmitted to the parties a Notification of Respondent Default.
On April 11, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Steven M. Levy, Esq. 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 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, 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, Crazy Games LLC, offers a variety of board games for sale on the Amazon.com platform, including backgammon, chess, dominoes, and sling puck. Complainant has rights in the trademark CRAZY GAMES based on registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 6,551,497, registered Nov. 9, 2021). Respondent’s <crazygamesllc.com> domain name, registered on January 25, 2022, is confusingly similar to Complainant’s CRAZY GAMES mark since it incorporates the mark in its entirety and merely adds the term “LLC” and the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <crazygamesllc.com> domain name. Respondent is not commonly known by the disputed domain name and Complainant has not authorized Respondent to use the CRAZY GAMES mark. Additionally, Respondent does not use the disputed domain for any bona fide offering of goods or services and it does not make a legitimate noncommercial or fair use thereof as Respondent uses the domain name to impersonate Complainant and offer Complainant’s goods for sale.
Respondent registered and uses the <crazygamesllc.com> domain name in bad faith. Respondent disrupts Complainant’s business by offering Complainant’s goods for sale on the resolving website for the disputed domain name. Additionally, Respondent’s use of a WHOIS privacy service further indicates bad faith. Finally, Respondent had actual knowledge of Complainant’s rights in the CRAZY GAMES mark based on the inclusion of images of Complainant’s products on the resolving website.
B. Respondent
Respondent failed to submit a Response in this proceeding.
- Complainant has demonstrated that is owns rights to the trademark CRAZY GAMES and that the <crazygamesllc.com> is confusingly similar to such mark;
- Respondent has no rights or legitimate interests in the disputed domain name as it seeks to pass itself off as Complainant by resolving the domain name to a website that displays the CRAZY GAMES mark and claims to offer for sale Complainant’s products with no indication that it has no affiliation with Complainant;
- Respondent registered and uses the <crazygamesllc.com> domain name in bad faith because its website disrupts Complainant’s business by impersonating Complainant and offering Complainant’s goods for sale; and
- Respondent’s use of a WHOIS privacy service lends further support for the conclusion that Respondent has registered and used the disputed domain name 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 and submissions 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 and supported 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 CRAZY GAMES mark based on registration of the mark with the USPTO. Registration of a mark with the USPTO is a valid showing of rights in a mark. See Zoosk, Inc. v. Brock Linen, FA 1818879 (Forum Jan. 28, 2019) (”The Panel here finds that Complainant’s registration of the ZOOSK mark with the USPTO is sufficient to establish rights in the mark under Policy ¶ 4(a)(i).”) Since Complainant provides a copy of its USPTO registration of the CRAZY GAMES mark with the USPTO, the Panel finds that Complainant has rights in the mark under Policy ¶ 4(a)(i).
Next, Complainant argues that Respondent’s <crazygamesllc.com> domain name is confusingly similar to the CRAZY GAMES mark since it copies the mark and merely adds the term “LLC” and the “.com” gTLD. The addition of a generic term and gTLD to a mark may not be sufficient to distinguish the disputed domain name from the mark under Policy ¶ 4(a)(i). See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (Finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i).); see also Discovery, Inc. v. Domain Admin / E-Promote, FA 1892784 (Forum May 19, 2020) (“The Disputed Domain Name is confusingly similar to the DISCOVERY Mark because the Disputed Domain Name incorporates the DISCOVERY Mark in its entirety and merely adds the dictionary term ‘inc.’ (an abbreviation for incorporated or incorporation), followed by the gTLD ‘.com’.”) As the disputed domain name incorporates Complainant’s CRAZY GAMES mark in its entirety and as the addition of the term “LLC” (a common abbreviation of the phrase Limited Liability Company), the Panel finds that the disputed domain name is confusingly similar to the 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). Should it succeed in this effort, the burden then shifts to Respondent to show that 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 first argues that Respondent lacks rights and legitimate interests in the <crazygamesllc.com> domain name because Respondent is not commonly known by the disputed domain name and Complainant has not authorized Respondent to use the CRAZY GAMES mark. When considering this issue WHOIS information can be used to support a finding that a respondent is or is not commonly known by a disputed domain name under Policy ¶ 4(c)(ii). See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record). Additionally, lack of authorization to use a mark may further support a conclusion that a respondent is not commonly known by the disputed domain name. See Navistar International Corporation v. N Rahmany, FA 1620789 (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). Here, the WHOIS information revealed by the concerned Registrar identifies the registrant of the disputed domain name as “Justin Ligeri” and there is no evidence that it is known otherwise. Further, Complainant asserts that it has not authorized Respondent to use the CRAZY GAMES mark. As Respondent has not filed a Response or made any other submission in this case, the Panel finds no evidence upon which to conclude that Respondent is commonly known by the domain name under Policy ¶ 4(c)(ii).
Additionally, Complainant argues that Respondent does not use the disputed domain for any bona fide offering of goods or services and that it makes no legitimate noncommercial or fair use thereof as Respondent uses the domain name to impersonate Complainant and offer Complainant’s goods for sale. Use of a disputed domain name to resolve to a website displaying a complainant’s mark and product images, and offering a complainant’s goods for sale under conditions where a respondent seeks to pass itself off as a complainant does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding the respondent did not use the domain name to make a bona fide offering of goods or services per Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii) where the resolving website featured the complainant’s mark and various photographs related to the complainant’s business while offering competing services). Complainant here provides screenshots of Respondent’s website at the disputed domain name showing photographs of Complainant’s CRAZY GAMES branded products along with offers to sell the same. The website also displays a checkout page consisting of a form into which users are asked to input their full names and addresses. Complainant also points out that “the website provides no means by which to contact Respondent”. Though not mentioned by Complainant, the Panel notes that Respondent’s website contains no notice or mention of its lack of a relationship with Complainant. This removes it from the realm of a potentially legitimate distributorship under the familiar four-step test set out in Oki Data Americas, Inc. v. ASD, Inc., D2001-0903 (WIPO Nov. 6, 2001). As Complainant has made out a prima facie case which has not been rebutted by Respondent, upon a preponderance of the evidence presented, the Panel finds that Respondent is not using the domain name for a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor is it making a legitimate noncommercial or fair use thereof under Policy ¶ 4(c)(iii).
Complainant argues that Respondent had actual knowledge of Complainant’s rights in the CRAZY GAMES mark based on the inclusion of images of Complainant’s products on the resolving website. Actual knowledge of a complainant’s trademark rights, as demonstrated by the use a respondent makes of the domain name, is a sufficient foundation upon which to build a case for bad faith under Policy ¶ 4(a)(iii). See Twentieth Century Fox Film Corporation and Fox International Channels (US), Inc. v. Daniel Pizlo / HS, FA 1596020 (Forum Jan. 27, 2015) (finding that the respondent must have had actual knowledge of the complainant and its rights in the FOX LIFE mark where the respondent was using the <foxlife.org> domain name to feature one of the complainant’s videos on its website); G.D. Searle & Co. v. Pelham, FA 117911 (Forum Sept. 19, 2002) (“[I]t can be inferred that Respondent had knowledge of Complainant’s rights in the CELEBREX mark because Respondent is using the CELEBREX mark as a means to sell prescription drugs, including Complainant’s CELEBREX drug.”) Here, the Panel agrees that the display of Complainant’s CRAZY GAMES products on the website of the <crazygamesllc.com> website provides substantial evidence that Respondent had actual knowledge of the mark at the time it registered the disputed domain name.
Complainant next argues that Respondent registered and uses the <crazygamesllc.com> domain name in bad faith because its website disrupts Complainant’s business by impersonating Complainant and offering Complainant’s goods for sale. Use of a disputed domain name to offer a complainant’s products for sale, while impersonating that complainant, is evidence of bad faith registration and use under Policy ¶ 4(b)(iii). See Central Digital Publishing, LLC v. AlaaEldin ELzahed, FA 1959698 (Forum Sept. 14, 2021) (“Respondent registered and uses the <wordplays.net> domain name in bad faith to disrupt Complainant’s business by impersonating Complainant and diverting Internet users to the Respondent’s competing website.”) Complainant provides screenshots of the <crazygamesllc.com> website showing that Respondent displays images of Complainant’s CRAZY GAMES branded products and offers them for sale. The top of each page at this site displays the CRAZY GAMES mark in a logo style that differs very slightly from that used by Complainant and there is no notice or other mention of the lack of any relationship between Respondent and Complainant. Furthermore, Complainant’s screenshots show that Respondent’s website invites potential customers to input their full names and addresses during the checkout process. This evidence indicates that the <crazygamesllc.com> website seeks to pass itself off as originating with Complainant and, as Respondent has not participated in this case, it has not sought to offer an alternate explanation for its actions. Therefore, the Panel finds bad faith disruption of Complainant’s business under Policy ¶ 4(b)(iii).
Finally, Complainant contends that Respondent’s use of a WHOIS privacy service further indicates bad faith. The consensus view amongst panels is that use of a privacy service, without more, cannot reach the threshold of bad faith registration and use. See WWF-World Wide Fund for Nature aka WWF International v. Moniker Online Services LLC and Gregory Ricks, D2006-0975 (WIPO Nov. 1, 2006) (finding use of proxy registration service does not of itself indicate bad faith; there are many legitimate reasons for proxy registration services); see also Divex Limited v. ZJ, Sam Chang and Tim NG, D2007-0861 (WIPO Sep. 21, 2007) (finding privacy services may be justified by the need to avoid spam and identity theft). However, the totality of the circumstances which surround a respondent’s engagement of a privacy service may support a finding of bad faith registration and use. See, e.g., Autodesk, Inc. v. Super Privacy Service LTD c/o Dynadot / 小林 王, D2022-0360 (WIPO Apr. 6, 2022) (“The Respondent has not provided any evidence of good faith use. In this context, the Respondent’s use of a privacy protection service to conceal its identity further points to bad faith.”) As the public WHOIS record only identifies Respondent as “Privacy service provided by Withheld for Privacy ehf”, the Panel finds that Respondent has utilized a privacy shield in a manner which materially adversely affects or obscures the facts of this proceeding. As such, it finds further support for its conclusion that Respondent has registered and used 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 <crazygamesllc.com> domain name be TRANSFERRED from Respondent to Complainant.
Steven M. Levy, Esq., Panelist
Dated: April 14, 2022
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