Twitter, Inc. v. Domain Admin
Claim Number: FA1503001607451
Complainant is Twitter, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is Domain Admin (“Respondent”), Hong Kong, China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <twiiter.com>, registered with Moniker Online Services LLC.
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 March 2, 2015; the Forum received payment on March 2, 2015.
On March 3, 2015, Moniker Online Services LLC confirmed by e-mail to the Forum that the <twiiter.com> domain name is registered with Moniker Online Services LLC and that Respondent is the current registrant of the name. Moniker Online Services LLC has verified that Respondent is bound by the Moniker Online Services LLC 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 4, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 24, 2015 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@twiiter.com. Also on March 4, 2015, 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 1, 2015, 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’s TWITTER (and TWEET) trademarks are registered in the United States and elsewhere around the world, to wit (U.S. Registration No.’s 3,619,911, 4,179,739 and 4,422,235 for TWITTER; U.S. Registration No. 4,338,963 for TWEET).
The <twiiter.com> domain name is confusingly similar to the TWITTER mark. The domain name contains the Complainant’s mark in full, substitutes an “i” for the first “t” in TWITTER, and inserts a generic top-level domain “.com” to form the domain name.
Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, as evidenced by the WHOIS information. Further, Complainant has neither authorized nor licensed Respondent to use Complainant’s TWITTER mark. Respondent’s lack of rights or legitimate interests in the <twiiter.com> domain name is evidenced by Respondent’s failure to use the domain name in connection with a bona fide offering of goods or services and failure to make a legitimate noncommercial or fair use of the disputed domain name. In the past, the <twiiter.com> domain name has been used as a vehicle for the delivery of malware. Further, the disputed domain name was once used in a phishing scheme. The disputed domain name once used various Twitter Logos and a fake Twitter home page, which constitutes passing off.
The disputed domain name currently resolves to a blank page.
Respondent has engaged in bad faith registration and use of the <twiiter.com> domain name under Policy ¶ 4(a)(iii). Respondent’s use of the disputed domain name disrupts Complainant’s business by diverting Internet customers seeking Complainant’s website. Further, Respondent intentionally attracts, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s mark. Moreover, Respondent registered the disputed domain name with knowledge of Complainant’s rights in the mark. Respondent’s current inactive holding of the disputed domain name is further evidence of bad faith. Additionally, the registration of the disputed domain name reflects opportunistic bad faith. Respondent has used the disputed domain name to distribute malware, which is further evidence of bad faith registration and use. Finally, Respondent has engaged in the practice of typosquatting.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the TWITTER mark through its registration of such mark with the USPTO and otherwise.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in its relevant trademarks.
Respondent employed the at-issue domain name to address websites used to propagate malware, to promote a phishing scheme, and to otherwise profit from the confusion between the domain name and Complainant’s TWITTER trademark.
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant demonstrates its rights in a mark via its several registrations with the United States Patent and Trademark Office (“USPTO”) ‑regardless of where Respondent is located. See Bloomberg L.P. v. Johnston, FA 760084 (Nat. Arb. Forum Oct. 25, 2006) (holding that the complainant’s trademark registrations with the USPTO had established rights in the BLOOMBERG mark); see also, Twitter, Inc. v. High Tech Investments LTD, DCH2011-0030 (WIPO Oct. 19, 2011) (referring to “Claimant’s well-known trademark” and “well-known brand”); see also, Twitter, Inc. v. Goldberg Client Services, Inc., Case No. D2011-1973 (WIPO Feb. 3, 2012) (“By June 2010 ... the TWITTER mark and service was well-known around the world”). The Panel also notes Complainant’s common law trademark rights in its TWITTER mark are evidenced in Complainant’s papers. These rights predate Respondent’s registration of the <twiiter.com> domain name.
Respondent’s <twiiter.com> domain name contains Complainant’s mark in full, substitutes an “i” for the first “t” in TWITTER, and appends the top‑level domain name “.com” to the resulting string. Notwithstanding the differences between the domain name and Complainant’s trademark, the two are confusingly similar under Policy ¶4(a)(i). See Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding that a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive); see also, Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a top-level to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis).
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 (Nat. Arb. Forum Aug. 18, 2006). Since Respondent failed to respond, absent evidence of Policy ¶4(c) circumstances Complainant’s prima facie showing acts conclusively.
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.
WHOIS information for the at-issue domain name lists “Domain Admin” as the domain name’s registrant and there is nothing in the record that otherwise suggests Respondent is commonly known by the <twiiter.com> domain name. Therefore, the Panel finds that Respondent is not commonly known by the at-issue domain name pursuant to Policy ¶ 4(c)(ii). See Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name).
Further, the at-issue domain name once addressed a website that used various Twitter Logos and a fake Twitter home page; this use constitutes passing off. Respondent also used <twiiter.com> websites as a vehicle for the delivery of malware and to sponsor a phishing scheme. These uses of the at-issue domain name are neither bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair uses under Policy ¶ 4(c)(iii). See Kmart of Mich., Inc. v. Cone, FA 655014 (Nat. Arb. Forum April 25, 2006) (The panel found the respondent’s attempt to pass itself of as the complainant was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii) when the respondent used the disputed domain name to present users with a website that was nearly identical to the complainant’s website); see also Baker v. J M, FA 1259254 (Nat. Arb. Forum June 12, 2009) (concluding that the hosting of a virus that activates when an Internet user accesses the resolving website does not demonstrate rights and legitimate interests in a disputed domain name under Policy ¶ 4(a)(ii)); see also, See George Weston Bakeries Inc. v. McBroom, FA 933276 (Nat. Arb. Forum Apr. 25, 2007) (finding that the respondent had no rights or legitimate interests in a domain name under either Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii) where it failed to make any active use of the domain name).
Given the forgoing, Complainant satisfies its initial burden under Policy ¶4(a)(ii) and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name.
The domain name was registered and used in bad faith. As discussed below, Policy ¶4(b) specific bad faith circumstances as well as other circumstance are present which compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
As mentioned above Respondent used the domain name in various schemes whereby Internet users were defrauded into believing the confusingly similar at-issue domain name was associated with Complainant and its TWITTER trademark. These schemes were intent on profiting from wayward traffic directed to a <twiiter.com> website where Respondent could exploit visitors either by passing off goods, or by infecting the visitor’s computer with malware, or otherwise. Respondent’s use of the domain name disrupted Complainant’s business and misappropriated the trademark value of Complainant’s mark to wrangle visitors to its website thereby demonstrating Respondent’s bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iii) and Policy ¶ 4(b)(iii). See Jerie v. Burian, FA 795430 (Nat. Arb. Forum Oct. 30, 2006) (concluding that the respondent registered and used the <sportlivescore.com> domain name in order to disrupt the complainant’s business under the LIVESCORE mark because the respondent was maintaining a website in direct competition with the complainant); see also, Google, Inc. v. Petrovich, FA 1339345 (Nat. Arb. Forum September 23, 2010) (finding that disputed domain names which distribute malware to Internet users’ computers demonstrate Respondent’s bad faith under Policy ¶ 4(b)(iv))
Next, Respondent registered the <twiiter.com> domain name knowing that Complainant had trademark rights in the TWITTER mark. Respondent’s prior knowledge is evident from the notoriety of Complainant’s trademark and from Respondent’s overt misspelling of such trademark in forming the at-issue domain. Given the forgoing, it is clear that Respondent intentionally registered the at-issue domain name precisely to improperly exploit its trademark value, rather than for some benign reason. Respondent’s prior knowledge of Complainant's trademark further indicates that Respondent registered and used the <twiiter.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Nat. Arb. 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").
Finally, Respondent’s domain names exemplify typosquatting. Typosquatting is a practice whereby a domain name registrant, such as Respondent, deliberately introduces typographical errors or misspellings into a trademark and then uses the string in a domain name. The conniving registrant wishes and hopes that Internet users will inadvertently type the malformed trademark when searching for the mark’s associated products or services. In doing so the wayward Internet users are directed to a web presence controlled by the domain name’s registrant where their accidental visits may be exploited. Here, Respondent simply changes a single letter in Complainant’s trademark before incorporating the mark into the at-issue domain name. Respondent’s typosquatting, in itself, is evidence of Policy ¶ 4(a)(iii) bad faith. See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use 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 <twiiter.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: April 2, 2015
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