Twitch Interactive, Inc. v. S Jon Grant
Claim Number: FA1504001614428
Complainant is Twitch Interactive, Inc. (“Complainant”), represented by Andrew VanArsdel of Seed Intellectual Property Law Group PLLC, Washington, USA. Respondent is S Jon Grant (“Respondent”), Arizona, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <twotch.tv>, <rtwitch.tv>, <tewitch.tv>, and <twithch.tv>, registered with DYNADOT LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 14, 2015; the Forum received payment on April 14, 2015.
On April 14, 2015, DYNADOT LLC confirmed by e-mail to the Forum that the <twotch.tv>, <rtwitch.tv>, <tewitch.tv>, and <twithch.tv> domain names are registered with DYNADOT LLC and that Respondent is the current registrant of the names. DYNADOT LLC has verified that Respondent is bound by the DYNADOT 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 April 20, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 11, 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@twotch.tv, postmaster@rtwitch.tv, postmaster@tewitch.tv, and postmaster@twithch.tv. Also on April 20, 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 18 May 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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
Complainant states that it operates the world’s leading live video platform at the web site <www.twitch.tv>. The service was launched in June 2011 and attracts millions of visitors per month.
Complainant alleges that it owns registered trademarks, with the first registration dating back to January 2012, for the marks TWITCH and TWITCHTV and that the disputed domain names are confusingly similar, in the sense of the Policy, to its marks. Complainant cites UDRP precedents to support its position.
Complainant states that Respondent has not and is not using the disputed domain names in connection with a bona fide offering of goods or services, nor is he making a noncommercial fair use of the disputed domain names. Respondent has never been known under the disputed domain names. He is not affiliated with Complainant and has not been licensed or otherwise authorized to use Complainant’s marks. Consequently, Respondent does not have rights or a legitimate interest in the disputed domain names. Complainant cites UDRP precedents to support its position.
According to Complainant, the disputed domain names resolve to pay per click websites containing active links to web sites that offer services that compete with those of the Complainant. This is not a bona fide use. Complainant cites UDRP precedents to support its position.
Complainant states that when Respondent registered the disputed domain names, in August 2013 and August 2014, the Complainant’s service already had millions of users and was well-known. The intent of the registrations was to divert Internet users for commercial gain by engaging in the practice known as typo-squatting. Respondent has attempted to benefit commercially from the goodwill associated with Complainant’s marks and this constitutes bad faith registration and use under the Policy. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns registered marks for TWITCH and TWICHTV, with the first registration dating back to January 2012.
The disputed domain names were first registered in August 2013.
The services offered by Complainant are widely used and well known.
Respondent is using the disputed domain names to resolve to web sites containing commercial links to services that compete with those of Complainant.
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.”).
It is clear that the disputed domain names, consisting of misspellings of the Complainant’s trademarks, are confusingly similar to the Complainant’s trademark. See for example Lenovo (Beijing) Limited Corporation China v. John Wang, FA 1586484 (Nat’l Arb. Forum Dec. 10, 2014); WordPress Foundation v. Domain Backorder Domain-Catch.com / Net Solutions Holding LLC, FA 1552560 (Nat’l Arb. Forum May 5 2014).
Respondent is using the disputed domain name to point to a website that offers services that compete with the Complainant’s products.
The Panel finds that Respondent is redirecting Internet users interested in the Complainant’s products and services to its own website for commercial gain and that such use does not fall within the parameters of a bona fide offering of goods or services pursuant to paragraph 4(c)(i) of the Policy or a legitimate noncommercial or fair use pursuant to paragraph 4(c)(iii) of the Policy. See for example Homer, TLD Inc. v. Kang, FA 573872 (Nat’l Arb. Forum, Nov. 22 2005); Nike, Inc. v. Dias, FA 135016 (Nat’l Arb. Forum, Jan. 7, 2002).
It is clear to the Panel that Respondent was aware of Complainant’s marks when it registered and started using the disputed domain names, because the disputed domain names are essentially identical to Complainant’s well-known marks.
Respondent (who did not reply to the Complainant’s contentions) has not presented any plausible explanation for his use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, in the Panel’s view, Respondent’s actual use of the disputed domain name (as noted above) is clearly not bona fide, because Respondent uses the disputed domain names to resolve to a web site that offers services that compete with those of the Complainant. This indicates that Respondent has registered and is using the disputed domain name to take advantage of the confusing similarity between the disputed domain name and Complainant’s marks in order to profit from the goodwill associated with the mark in bad faith under paragraph 4(b)(iv) of the Policy. See for example V Secret Catalogue, Inc. v. Bryant Little, FA 301728 (Nat’l Arb. Forum Sept. 2, 2004); G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat’l Arb. Forum Nov 21, 2002).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <twotch.tv>, <rtwitch.tv>, <tewitch.tv>, and <twithch.tv> domain names be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: May 19, 2015
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