Twitter, Inc. v. davidoff vasile
Claim Number: FA2202001983487
Complainant is Twitter, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is davidoff vasile (“Respondent”), Italy.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <twittler.online>, 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 7, 2022; the Forum received payment on February 7, 2022.
On February 8, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <twittler.online> 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 February 9, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 1, 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@twittler.online. Also on February 9, 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 March 3, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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 contends as follows:
Complainant operates a real-time global information network that allows users to publically comment.
Complainant has rights in the TWITTER mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <twittler.online> domain name is confusingly similar to Complainant’s TWITTER mark. Respondent incorporates the mark in its entirety adds the letter “l” and the “.online” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <twittler.online> domain name as Respondent is not commonly known by the at-issue domain name nor did Complainant authorize Respondent to use the TWITTER mark in any way. Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent’s domain name resolves to a webpage that attempts to pass off as Complainant.
Respondent registered and used the <twittler.online> domain name in bad faith as Respondent attempts to pass off as Complainant in furtherance of a phishing scheme. Respondent had actual knowledge of Complainant’s rights in the TWITTER mark due to the fame of the mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the TWITTER mark.
Complainant’s rights in TWITTER existed prior to Respondent’s registration of the at-issue domain name.
Respondent is not authorized to use Complainant’s trademark.
Respondent uses the at-issue domain name to pass itself off as Complainant and facilitate a phishing scheme.
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 at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant has a trademark registration for TWITTER with the USPTO. Such registration is sufficient to demonstrate Complainant’s rights in the TWITTER mark under Policy ¶ 4(a)(i). See Nintendo of America Inc. v. lin amy, FA 1818485 (Forum Dec. 24, 2018) ("Complainant’s ownership a USPTO trademark registration for the NINTENDO mark evidences Complainant’s rights in such mark for the purposes of Policy ¶ 4(a)(i).”).
Respondent’s <twittler.online> domain name contains Complainant’s TWITTER trademark with an “l” added, with all followed by the top-level domain name “.online.” The differences between Respondent’s domain name and Complainant’s trademark are insufficient to distinguish Respondent’s <twittler.online> domain name from the TWITTER trademark for the purposes of Policy ¶ 4(a)(i). Therefore, the Panel concludes that Respondent’s <twittler.online> domain name is confusingly similar to Complainant’s TWITTER mark. See Bank of America Corporation v. Above.com Domain Privacy, FA 1629452 (Forum Aug. 18, 2015) (finding that the <blankofamerica.com> domain name contains the entire BANK OF AMERICA mark and merely adds the gTLD ‘.com’ and the letter ‘l’ to create a common misspelling of the word ‘bank’).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006).
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue 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)”).
The WHOIS information for <twittler.online> identifies the domain name’s registrant as “davidoff vasile,” and the record before the Panel contains no evidence showing that Respondent is commonly known by TWITTER or by <twittler.online>. The Panel therefore concludes that Respondent is not commonly known by the <twittler.online> domain name for the purposes of Policy ¶ 4(c)(ii). See PragmaticPlay Limited v. Robert Chris, FA2102001932464 (Forum Mar. 23, 2021) (“The WHOIS information of record lists the registrant as “Robert Chris,” and no other information of record suggests Respondent is commonly known by the domain name. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).”).
Respondent uses <twittler.online> to pass itself off as Complainant and address a webpage displaying the TWITTER trademark along with content and design in the image of a genuine TWITTER login page where TWITTER users may login to their existing TWITTER accounts or if they have no account may sign-up for one. Respondent ultimately uses the faux login page to phish for personal information from deceived internet users who falsely believe they are dealing with Complainant when they are in fact dealing with the conniving Respondent. Respondent’s use of the domain name in this manner is neither a bona fide offering of goods or services under Policy ¶ 4 (c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(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 website resolving from the disputed domain name featured the complainant’s mark and various photographs related to the complainant’s business); see also Bank of Am. Fork v. Shen, FA 699645 (Forum June 11, 2006) (finding that the respondent’s use of a domain name to redirect Internet users to websites unrelated to a complainant’s mark is not a bona fide use under Policy ¶ 4(c)(i)).
Given the forgoing, Complainant satisfies its initial burden and absent evidence to the contrary shows Respondent’s lack of rights and legitimate interests in the at-issue domain name under Policy ¶ 4(a)(ii).
The at-issue domain name was registered and used in bad faith. As discussed below without limitation, bad faith circumstances are present from which the Panel concludes that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
First, Respondent uses the confusingly similar <twittler.online> domain name to address a webpage displaying Complainant’s trademark and logo. The page looks like a genuine TWITTER login page. There, Respondent gathers personal data and genuine TWITTER account credentials from confused visitors who believe they are logging into TWITTER or signing up for a TWITTER account. Respondent’s use of the at-issue domain name to pass itself off as Complainant and phish for the personal data of third-parties is evidence of bad faith under the Policy. 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.”), see also United States Postal Service v. kyle javier, FA 1787265 (Forum June 12, 2018) (“Use of a domain name to phish for Internet users’ personal information is evidence of bad faith.”).
Next, Respondent engages in typosquatting. Typosquatting is a practice whereby a domain name registrant deliberately introduces typographical errors or misspellings into a trademark and then uses the malformed trademark in a domain name hoping that internet users will inadvertently type the adulterated mark when searching for products or services associated with the target trademark and/or will misread the domain name and confuse it with its target trademark or a related website. As all can see, the at-issue domain name contains Complainant’s TWITTER trademark notwithstanding the added letter “l.” The domain name may easily be mistaken for Complainant’s TWITTER trademark and/or for an official TWITTER website, if any, at <twitter.online>. Respondent’s typosquatting, in itself, is evidence of Policy ¶ 4(a)(iii) bad faith. See Cost Plus Management Services, Inc. v. xushuaiwei, FA 1800036 (Forum Sept. 7, 2018) (“Typosquatting itself is evidence of relevant bad faith registration and use.”); see also LifeLock, Inc. v. Adam Viener / ThunkTunk LLC, FA1409001579875 (Forum Oct. 28, 2014) (“As the Panel has noted above, at the conclusion of its findings under the first Policy element under Policy ¶ 4(a)(i), the disputed domain name <lifelocl.com> differs from the LIFELOCK mark only by substituting the letter ‘L’ for the letter ‘K’ in the LOCK-portion of Complainant’s registered mark. The Panel finds this behavior amounts to typosquatting, and as such the Panel finds this to be evidence of bad faith pursuant to Policy ¶ 4(a)(iii).”).
Moreover, Respondent had actual knowledge of Complainant’s rights in the TWITTER mark when it registered <twittler.online> as a domain name. Respondent’s prior knowledge is evident from the notoriety of Complainant’s famous trademark and from Respondent’s use of Complainant’s trademark and logo on the faux login page addressed by <twittler.online>. Registering and using the confusingly similar <twittler.online> domain name with knowledge of Complainant’s rights in such domain name further shows Respondent’s bad faith registration and use of <twittler.online>pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); see also, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <twittler.online> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: March 7, 2022
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