V.R.S. Virtual Reality Technology Ltd. and Data Tech Media, spletne storitve d.o.o. v. Viacheslav Demchuk
Claim Number: FA2204001993809
Complainants are V.R.S. Virtual Reality Technology Ltd. and Data Tech Media, spletne storitve d.o.o. (“Complainants”), represented by Matthew Shayefar of Boston Law Group, PC, Massachusetts, USA. Respondent is Viacheslav Demchuk (“Respondent”), Russia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <sexlikerealhd.com>, registered with Internet Domain Service BS Corp.
PANEL
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.
Alan L. Limbury, as Panelist.
Complainants submitted a Complaint to the Forum electronically on April 26, 2022. The Forum received payment on April 26, 2022.
On April 27, 2022, Internet Domain Service BS Corp confirmed by e-mail to the Forum that the <sexlikerealhd.com> domain name is registered with Internet Domain Service BS Corp and that Respondent is the current registrant of the name. Internet Domain Service BS Corp has verified that Respondent is bound by the Internet Domain Service BS Corp 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 April 28, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 18, 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@sexlikerealhd.com. Also on April 28, 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 May 24, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Alan L. Limbury 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 Virtual Reality Technology Ltd.
PRELIMINARY ISSUE: MULTIPLE COMPLAINANTS
In the instant proceedings, there are two Complainants. Paragraph 3(a) of 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.”
Because there is a trademark licence between Complainants V.R.S. Virtual Reality Technology Ltd. and Data Tech Media, spletne storitve d.o.o., the Panel finds there to be a sufficient nexus between them such that each may claim to have rights to the <sexlikerealhd.com>domain name listed in the Complaint.
A. Complainants
Complainants collectively operate one of the most popular virtual reality adult entertainment websites in the world. Complainant Virtual Reality Technology Ltd. asserts rights in the SEX LIKE REAL mark based on registration with the United States Patent and Trademark Office (“USPTO”). Respondent’s <sexlikerealhd.com> domain name is identical or confusingly similar to the SEX LIKE REAL mark.
Respondent lacks rights and legitimate interests in the <sexlikerealhd.com> domain name as Respondent is not commonly known by the domain name and is neither an authorized user or licensee of the SEX LIKE REAL mark. Additionally, Respondent does not use the domain name for any bona fide offer of goods or services, nor for any legitimate noncommercial or fair use, but rather unlawfully and fraudulently to feature content taken directly off Complainants’ legitimate website.
Respondent registered the <sexlikerealhd.com> domain name in bad faith with actual knowledge of Complainants’ rights in the SEX LIKE REAL mark. Respondent is attempting to pass himself off as Complainant by using a domain name substantially similar to Complainants’ mark for a website that provides substantially similar services as Complainants on their own website. Respondent’s website prominently displays Complainants’ trademark and falsely claims to distribute original content produced by Complainants. Such use demonstrates both bad faith disruption and attraction for commercial gain.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
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 Virtual Reality Technology Ltd. has shown that it has rights in the SEX LIKE REAL mark based on registration with the USPTO (Reg. No. 5,411,042, registered February 27, 2018). It has licensed the mark to Complainant Data Tech Media, spletne storitve d.o.o. for use on the <sexlikereal.com> website and associated applications. Data Tech Media, spletne storitve d.o.o. registered the domain name <sexlikereal.com> on July 24, 2015.
The Panel finds Respondent’s <sexlikerealhd.com> domain name to be virtually identical and confusingly similar to Complainants’ mark, incorporating the mark in its entirety, removing spaces between the words in the mark and adding the generic suffix HD (indicating “high definition”). These differences do nothing to distinguish the domain name from the mark. The inconsequential “.com” generic top-level domain (“gTLD”) may be ignored.
Complainants have established this element.
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The <sexlikerealhd.com> domain name was registered on June 27, 2020, more than two years after Complainants’ SEX LIKE REAL mark and nearly five years after Complainant Data Tech Media, spletne storitve d.o.o. registered and started using the <sexlikereal.com> domain name for its website. The <sexlikerealhd.com> domain name resolves to a website that displays Complainants’ SEX LIKE REAL trademark, copies a logo from Complainants’ <sexlikereal.com> website, uses a similar layout to Complainants’ website and provides nearly the same service, inviting users to download virtual reality pornographic videos. Further, a little “SLR Originals” icon is placed next to every video, falsely indicating that the content is created by Complainants.
These circumstances, together with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain name on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the <sexlikerealhd.com> domain name. See JUUL Labs, Inc. v. Dryx Emerson / KMF Events LTD, FA1906001849706 (Forum July 17, 2019).
Respondent has made no attempt to do so.
The Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has established this element.
Registration and Use in Bad Faith
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of the domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy, i.e.
(iii) Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on its website or location.
The circumstances set out above in relation to the second element satisfy the Panel that Respondent was fully aware of Complainants’ SEX LIKE REAL mark when Respondent registered the <sexlikerealhd.com> domain name and did so primarily for the purpose of disrupting the business of Complainants. Further, that Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website, by creating a likelihood of confusion with Complainants’ mark as to the source of Respondent’s website and of the services promoted on that website. This demonstrates registration and use in bad faith under Policy ¶ 4(b)(iii) and (iv).
Complainant has established this element.
DECISION
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 <sexlikerealhd.com> domain name be TRANSFERRED from Respondent to Complainant Virtual Reality Technology Ltd.
Alan L. Limbury, Panelist
Dated: May 25, 2022
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