Blitz NV, LLC / Dan Bilzerian v. Graf Alexandr
Claim Number: FA1903001835582
Complainant is Blitz NV, LLC / Dan Bilzerian (“Complainant”), represented by Gail Podolsky of Carlton Fields, P.A., Georgia, United States. Respondent is Graf Alexandr (“Respondent”), Republic of Moldova.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <bilzerian.net> and <bilzerian24.net>, registered with Regional Network Information Center, JSC dba RU-CENTER.
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 the Forum electronically on March 25, 2019; the Forum received payment on March 25, 2019.
On March 26, 2019, Regional Network Information Center, JSC dba RU-CENTER confirmed by e-mail to the Forum that the <bilzerian.net> and <bilzerian24.net> domain names are registered with Regional Network Information Center, JSC dba RU-CENTER and that Respondent is the current registrant of the names. Regional Network Information Center, JSC dba RU-CENTER has verified that Respondent is bound by the Regional Network Information Center, JSC dba RU-CENTER 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 27, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 16, 2019 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@bilzerian.net, postmaster@bilzerian24.net. Also on March 27, 2019, 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 18, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Ho Hyun Nahm, 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 names be transferred from Respondent to Complainant.
A. Complainant
i) Complainant, Blitz NV, is a corporate entity having exclusive rights to capitalize on the fame and distinctiveness of Dan Bilzerian—a poker player and social media personality. Complainant has rights in the BILZERIAN mark through its registration with the European Union Intellectual Property Office (“EUIPO”) (e.g. Reg. No. 14,376,016, registered Oct. 29, 2015). See Compl. Ex. E. Respondent’s <bilzerian.net> domain name is confusingly similar to Complainant’s mark as it incorporates the mark in its entirety and is differentiated only by the addition of the “.net” generic top-level domain (“gTLD”). Respondent’s <bilzerian24.net> domain name is also confusingly similar to Complainant’s mark as it incorporates the mark in its entirety and is differentiated only by the addition of the number “24” and the “.net” gTLD.
ii) Respondent does not have rights or legitimate interests in the <bilzerian.net> and <bilzerian24.net> domain names. Respondent is not permitted or licensed to use Complainant’s BILZERIAN mark in any manner and is not commonly known by the disputed domain names. Additionally, Respondent is not using the disputed domain names to make a bona fide offering of goods or services or for a legitimate non-commercial or fair use. Rather, Respondent uses the disputed domain names to pass off as Complainant in furtherance of illegal activities.
iii) Respondent has registered and is using the domain name in bad faith. Respondent uses the <bilzerian.net> and <bilzerian24.net> domain names to attempt to divert, for commercial gain, Internet users to the disputed domain names by creating a likelihood of confusion with Complainant’s BILZERIAN mark as to the source, sponsorship, affiliation, and endorsement of the services offered through the disputed domain name’s resolving website. Further, Respondent had actual or constructive notice of Complainant’s rights in the mark prior to registering the disputed domain names. Finally, Respondent used a privacy shield to mask its identity.
B. Respondent
Respondent did not submit a response in this proceeding.
1. The disputed domain names were registered on April 15, 2017.
2. Complainant has established rights in the BILZERIAN mark based upon registration of the mark with the EUIPO (e.g. Reg. No. 14,376,016, registered Oct. 29, 2015).
3. The disputed domain name’s resolving website features an unauthorized image of Mr. Bilzerian.
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”).
Preliminary Issue 1 : Language of Proceeding
The Panel notes that the Registration Agreement is written in Russian, thereby making the language of the proceedings in Russian. Complainant has alleged that because the disputed domain name and its content is in English, the proceeding should be conducted in English. The Panel has the discretion under UDRP Rule 11(a) it has the discretion to determine the appropriate language of the proceedings taking into consideration the particular circumstances of the administrative proceeding. See FilmNet Inc. v. Onetz, FA 96196 (Forum Feb. 12, 2001 (finding it appropriate to conduct the proceeding in English under Rule 11, despite Korean being designated as the required language in the registration agreement because the respondent submitted a response in English after receiving the complaint in Korean and English). Complainant contends Respondent is conversant in English based upon the fact that the content placed on the resolving websites for <bilzerian.net> and <bilzerian24.net> domain names is in English.
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language. After considering the circumstance of the present case, the Panel decides that the proceeding should be in English.
Preliminary Issue 2: Multiple Complainants
In the instant proceedings, there are two Complainants in this matter: Blitz NV, LLC and Dan Bilzerian. Paragraph 3(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that “[a]ny person or entity may initiate an administrative proceeding by submitting a complaint.” The Forum’s Supplemental Rule 1(e) defines “The Party Initiating a Complaint Concerning a Domain Name Registration” as a “single person or entity claiming to have rights in the domain name, or multiple persons or entities who have a sufficient nexus who can each claim to have rights to all domain names listed in the Complaint.”
Previous panels have interpreted the Forum’s Supplemental Rule 1(e) to allow multiple parties to proceed as one party where they can show a sufficient link to each other. For example, in Vancouver Org. Comm. for the 2010 Olympic and Paralymic Games & Int’l Olympic Comm. v. Malik, FA 666119 (Forum May 12, 2006), the panel stated:
It has been accepted that it is permissible for two complainants to submit a single complaint if they can demonstrate a link between the two entities such as a relationship involving a license, a partnership or an affiliation that would establish the reason for the parties bringing the complaint as one entity.
In Tasty Baking, Co. & Tastykake Invs., Inc. v. Quality Hosting, FA 208854 (Forum Dec. 28, 2003), the panel treated the two complainants as a single entity where both parties held rights in trademarks contained within the disputed domain names. Likewise, in Am. Family Health Srvs. Group, LLC v. Logan, FA 220049 (Forum Feb. 6, 2004), the panel found a sufficient link between the complainants where there was a license between the parties regarding use of the TOUGHLOVE mark. But see AmeriSource Corp. v. Park, FA 99134 (Forum Nov. 5, 2001) (“This Panel finds it difficult to hold that a domain name that may belong to AmerisourceBergen Corporation (i.e., the subject Domain Names) should belong to AmeriSource Corporation because they are affiliated companies.”).
Complainants contend that Complainant Blitz NV, LLC is a Nevada limited liability company that controls and enforces Complainant Dan Bilzerian’s brand. As the Panel accepts that the evidence in the Complaint is sufficient to establish a sufficient nexus or link between the Complainants, it treats them all as a single entity in this proceeding. Throughout the decision, the Complainants will be collectively referred to as “Complainant.”
Complainant claims rights in the BILZERIAN mark based upon registration of the mark with the EUIPO (e.g. Reg. No. 14,376,016, registered Oct. 29, 2015). See Compl. Ex. E. Registration of a mark with the EUIPO is sufficient to establish rights in that mark. See Lilly A/S v. yiyi chen, FA 1704586 (Forum Jan. 5, 2017) (“Until March 23, 2016, the EUIPO was known as the Office for Harmonization in the Internal Market. Registration of a mark with the EUIPO (or any other similar governmental authority) is sufficient to establish rights in the mark.”). The Panel therefore holds that Complainant’s registration of the BILZERIAN mark with the EUIPO is sufficient to establish rights in the mark under Policy ¶ 4(a)(i).
Complainant next argues Respondent’s <bilzerian.net> and <bilzerian24.net> domain names are confusingly similar to Complainant’s mark as they each incorporate the mark in its entirety and are differentiated only by the addition of the “.net” gTLD, and in the case of the <bilzerian24.net> domain name, by the addition of the number “24.” The addition of a number and a gTLD is not sufficient to overcome a confusingly similar analysis per Policy ¶ 4(a)(i). See Larkin v. Johnson, D2016-1115 (WIPO July 20, 2016), (“The Domain Name incorporates Complainant’s mark, [his personal name,] in its entirety, and adds the number “71.” The Panel finds that the additional number does not meaningfully distinguish the Domain Name from the mark); see also 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.”). As such, the Panel agrees that the disputed domain names are identical and/or confusingly similar to Complainant’s BILZERIAN mark per Policy ¶ 4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names 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 has no rights or legitimate interests in the Respondent’s <bilzerian.net> and <bilzerian24.net> domain names as Respondent is not commonly known by the disputed domain names, nor has Complainant authorized Respondent to use the BILZERIAN mark in any way. Where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by a disputed domain name. See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Additionally, lack of authorization from complainant to use its mark may be evidence that respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii). 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)”). The WHOIS information of record identifies the owner of the disputed domain name as “Graf Alexandr” and no information on record indicates Respondent was authorized to register a domain name with Complainant’s mark. The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the <bilzerian.net> and <bilzerian24.net> domain names.
Complainant further argues Respondent’s lack of rights and legitimate interests in the <bilzerian.net> and <bilzerian24.net> domain names is demonstrated by its failure to use the names to make a bona fide offering of goods and services or for a legitimate or noncommercial or fair use. Complainant instead contends that the disputed domain names resolve to a website used to pass off as Complainant in furtherance of illegal activities. Use of a domain name to pass off as a complainant in furtherance of illegal activities is not a use indicative of rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii). See iFinex Inc. v. Yuri Hefetz / Genie-Solution, FA 1789385 (Forum July 9, 2018) (holding that the respondent’s mimicking the complainant’s website in order to cause existing or potential customers to falsely believe they are setting up a new account with the complainant is prima facie evidence of the respondent’s lack of rights and legitimate interests in the disputed domain name); see also Google Inc. v. Alex Dori, FA 1623672 (Forum July 13, 2015) (“Given that Respondent is using the disputed domain name to offer illegal content for download and streaming, the Panel finds that Respondent’s use of the disputed domain name does not constitute a bona fide offering or a legitimate noncommercial or fair use.”). Here, Complainant alleges the disputed domain names contain unauthorized images of Mr. Bilzerian, purport to sell unauthorized digital copies of active credit cards, and provide information on how others may engage in identity theft and credit card fraud. Complainant provides screenshots to further this assertion. See Compl. Ex. I. The Panel therefore determines that Respondent does not have rights or legitimate interests in the <bilzerian.net> and <bilzerian24.net> domain names per Policy ¶¶ 4(c)(i) or (iii).
Complainant argues that Respondent’s bad faith is indicated by its use of the <bilzerian.net> and <bilzerian24.net> domain names to attempt to divert, for commercial gain, Internet users to the disputed domain names by creating a likelihood of confusion with Complainant’s BILZERIAN mark as to the source, sponsorship, affiliation, and endorsement of the services offered through the disputed domain name’s resolving website. Use of a disputed domain name to divert Internet users by creating a likelihood of confusion with a complainant’s mark as to the source, sponsorship, and endorsement of the services may demonstrate bad faith per Policy ¶ 4(b)(iv). See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 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.”).
The Panel recalls that Complainant alleges the disputed domain names contain unauthorized images of Mr. Bilzerian, purport to sell unauthorized digital copies of active credit cards, and provide information on how others may engage in identity theft and credit card fraud. See Compl. Ex. I. As such, the Panel finds that Respondent registered and is using the disputed domain names in bad faith per Policy ¶ 4(b)(iv).
Complainant further argues Respondent’s bad faith is demonstrated by Respondent’s actual and/or constructive knowledge of Complainant’s rights in the BILZERIAN mark prior to registering the <bilzerian.net> and <bilzerian24.net> domain names. A respondent’s actual knowledge of a complainant’s rights in a mark prior to registering a disputed domain name may demonstrate bad faith per Policy ¶ 4(a)(iii). See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”). Here, Complainant provides screenshots of the disputed domain name’s resolving website which features an allegedly unauthorized image of Mr. Bilzerian, which Complainant argues demonstrates Respondent’s knowledge of Complainant. See Compl. Ex. I. As the Panel agrees with Complainant’s contentions, the Panel infers, due to the manner of use of the disputed domain names that Respondent registered the disputed domain names 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 <bilzerian.net> and <bilzerian24.net> domain names be TRANSFERRED from Respondent to Complainant.
Ho Hyun Nahm, Esq., Panelist
Dated: April 22, 2019
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