BigBang Media LLC v. Ruslan Khalimov
Claim Number: FA2007001906871
Complainant is BigBang Media LLC (“Complainant”), represented by Matthew Shayefar of Law Office of Matthew Shayefar, PC, California, USA. Respondent is Ruslan Khalimov (“Respondent”), Russian Federation.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <spankbang.porn> (‘the Domain Name’), registered with Danesco Trading Ltd..
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 31, 2020; the Forum received payment on July 31, 2020.
On August 3, 2020, Danesco Trading Ltd. confirmed by e-mail to the Forum that the <spankbang.porn> domain name is registered with Danesco Trading Ltd. and that Respondent is the current registrant of the name. Danesco Trading Ltd. has verified that Respondent is bound by the Danesco Trading Ltd. 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 August 4, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 24, 2020 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@spankbang.porn. Also on August 4, 2020, 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 August 26, 2020 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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
The Complainant’s contentions can be summarized as follows:
The Complainant is the owner of the mark SPANKBANG, registered in the USA for adult entertainment services with first use recorded as 2011.
The addition of the gTLD “.porn” does not distinguish the Domain Name registered in 2019 from the Complainant’s SPANKBANG mark and they are identical for the purposes of the Policy.
The Respondent does not have rights or legitimate interests in the Domain Name is not commonly known by it and is not authorized by the Complainant.
The Domain Name has been used for a site offering adult entertainment services which is not connected with the Complainant using the Complainant’s SPANKBANG mark and logo and mimicking the Complainant’s official site. This is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. It is registration and use in bad faith diverting Internet users for commercial gain and disrupting the Complainant’s business.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the mark SPANKBANG, registered in the USA for adult entertainment services with first use recorded as 2011.
The Domain Name registered in 2019 has been used for competing services to the Complainant using the Complainant’s SPANKBANG mark and logo and mimicking the Complainant’s official site without authorization.
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”).
The Domain Name consists of the Complainant's SPANKBANG mark (which is registered in the USA for adult entertainment services and has been used since 2011) and the gTLD “.porn.”
The gTLD “.porn” does not serve to distinguish the Domain Name from the SPANKBANG mark, which is the distinctive component of the Domain Name. See Red Hat Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is identical for the purpose of the Policy to a mark in which the Complainant has rights.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorized the use of its mark. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 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 use made of the Domain Name is commercial so it is not legitimate noncommercial fair use.
The web site to which the Domain Name redirects offers adult entertainment services in competition with those of the Complainant. It mimics the official site of the Complainant using the Complainant’s logo. This is deceptive and confusing and amounts to passing off. As such it cannot amount to the bona fide offering of goods and services. See ShipChain, Inc. v. 谢东东 / 谢东东, FA 1785189 (Forum June 21, 2018) (“The resolving webpages between Complainant’s and Respondent’s websites are virtually the same. Respondent’s use of the disputed domain name does not confer rights and legitimate interests under Policy ¶¶ 4(c)(i) and (iii).”);
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
In the opinion of the Panelist, the use made of the Domain Name in relation to the site is confusing and disruptive in that visitors to the site will reasonably believe it is connected to or approved by the Complainant as it mimics the Complainant’s web site and offers competing adult entertainment services under a Domain Name consisting of the Complainant’s SPANKBANG mark and using the Complainant’s logo. The mimicking of the Complainant’s official site by the Respondent shows that the Respondent was aware of the Complainant, its rights, business and services at the time of registration. See Pfizer, Inc. v. Suger, D2002-0187 (WIPO Apr. 24, 2002) (finding that because the link between the complainant’s mark and the content advertised on the respondent’s website was obvious, the respondent “must have known about the Complainant’s mark when it registered the subject domain name”).
Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating a likelihood of confusion with the Complainant's trade mark as to the source, sponsorship, affiliation or endorsement of the web site and services offered on it likely to disrupt the business of the Complainant. See Asbury Auto Group Inc v. Tex. Int'l Prop Assocs FA 958542 (Forum May 29, 2007) (finding that the respondent's use of the disputed domain name to advertise car dealerships that competed with the complainant's business would likely lead to confusion amongst Internet users as to the authorization of those competing dealerships and was therefore evidence of bad faith and use); see also American Cheerleader Media, LLC. v. ilir shoshi / cheer, FA 1592319 (Forum January 20, 2015) (“The Panel here finds that Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iv) as … Respondent utilizes a logo and stylized font identical to Complainant’s own, as well as Complainant’s copyrighted images and text in an attempt to pass itself off as Complainant.”)
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under ¶¶ 4(b)(iii) and 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <spankbang.porn> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: August 26, 2020
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