John Stamos v. Ryan G Foo / PPA Media Services / Domain Admin / Whois Privacy Corp
Claim Number: FA1505001618847
Complainant is John Stamos ("Complainant"), represented by Evan N Spiegel of Lavely & Singer Professional Corporation, California, USA. Respondent is Ryan G Foo / PPA Media Services ("Respondent"), Chile.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <johnstamos.com>, registered with Internet.bs Corp.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 11, 2015; the Forum received payment on May 11, 2015. The Complaint was brought against Domain Admin / Whois Privacy Corp., London, United Kingdom. At that time the whois registration data for the <johnstamos.com> domain name identified the registrant of the domain name as Domain Admin / Whois Privacy Corp., Nassau, Bahamas. The Complaint stated that the actual location of Whois Privacy Corp. is London according to its website, and therefore listed that location instead of Nassau.
On May 19, 2015, Internet.bs Corp. confirmed by email to the Forum that the <johnstamos.com> domain name is registered with Internet.bs Corp. and identified Respondent Ryan G Foo / PPA Media Services as the registrant of the domain name. Internet.bs Corp. has verified that Respondent is bound by the Internet.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").
At the Forum's insistence, Complainant filed an Amended Complaint on May 20, 2015, listing Ryan G Foo / PPA Media Services as Respondent.[1]
On May 21, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 10, 2015 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@johnstamos.com. Also on May 21, 2015, the Written Notice of the Complaint, notifying Respondent of the email 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 June 15, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 is an internationally known and recognized musician, television and
motion picture actor, and producer. Complainant asserts that he has developed common-law trademark rights in JOHN STAMOS, and contends that the disputed domain name <johnstamos.com> is identical to this mark. Complainant further contends that Respondent has no rights or legitimate interests in the disputed domain name and that the domain name was registered and is being used in bad faith. In support thereof, Complainant asserts inter alia that Respondent is not commonly known by JOHN STAMOS, has no relationship with Complainant, and has never been authorized or licensed to use Complainant's mark. Complainant states that the disputed domain name currently is being used to redirect Internet users to a web page that features a fake "virus warning" and a series of pop-up windows that promote an illegal phishing scheme; and that in the past, the domain name has been used for a website consisting entirely of pay-per-click advertising links to unrelated websites. Complainant accuses Respondent of being a serial cybersquatter, and cites numerous decisions under the Policy recognizing Respondent as such.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is identical to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and has been used in bad faith.
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.").
Complainant claims to have acquired common-law trademark rights in JOHN STAMOS by virtue of his international recognition and his use of the name in connection with his extensive career in television and other aspects of the entertainment industry. To establish the requisite rights in a mark comprised of a personal name, proof that the name has been used as a distinctive identifier of goods or services is required. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, § 1.6 (2d ed. 2011), available at http://www.wipo.int/amc/en/domains/search/overview/; e.g., Jim Carrey v. BWI Domains, D2009-0563 (WIPO June 16, 2009) (finding common-law rights in JIM CARREY); Morgan Freeman v. Mighty LLC, D2005-0263 (WIPO Apr. 28, 2005) (finding common-law rights in MORGAN FREEMAN); Mick Jagger v. Denny Hammerton, FA 95261 (Nat. Arb. Forum Sept. 11, 2000) (finding common-law rights in MICK JAGGER). The Panel accepts Complainant's claim of trademark rights in JOHN STAMOS based upon the undisputed evidence before it.
The disputed domain name corresponds to the JOHN STAMOS mark, with the omission of the space and the addition of the ".com" top-level domain. These alterations do not diminish the similarity between the domain name and Complainant's mark. See, e.g., Jim Carrey, supra (finding <jimcarrey.com> "virtually identical and confusingly similar" to JIM CARREY); Morgan Freeman, supra (finding <morganfreeman.com> identical to MORGAN FREEMAN); Mick Jagger, supra (finding <mickjagger.com> identical to MICK JAGGER). The Panel finds that the disputed domain name is identical to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's mark without authorization, and it is being used to redirect Internet users to a web page that features a fake "virus warning" and a series of pop-up windows that promote an illegal phishing scheme. See, e.g., Hewlett-Packard Co. v. Collazo, FA 144628 (Nat. Arb. Forum Mar. 5, 2003) (holding that use of domain name for links to third-party sites and pop-up advertisements did not give rise to rights or legitimate interests). Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
For the same reasons as those present in numerous other cases involving Respondent, including National Geographic Society v. Ryan G Foo / PPA Media Services, FA 1609301 (Apr. 16, 2015); Zions Bancorporation v. Ryan G Foo, PPA Media Services / Domain Admin, Whois Privacy Corp., D2014-2278 (WIPO Apr. 9, 2015); and many others, the Panel finds that the disputed domain name was registered and has been used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <johnstamos.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: June 16, 2015
[1] Complainant included the following explanation in its Amended Complaint:
The Panel should be aware, however, that as of the initial filing date/submission of this action, on May 11, 2015, the registration of the <JohnStamos.com> domain name was pursuant to a proxy whois registration, under the false listed registrant name "Domain Admin / Whois Privacy Corp." Spiegel Decl. ¶5, Exh C (copies of whois records for 4/28/15 and 5/11/15). Only after the initial copy/version of this complaint was submitted to NAF and also transmitted to the Registrant and Registrar on May 11, 2015, the Registrar permitted the whois registration record to be changed to the underlying registration record in the name of Respondent "Ryan G Foo / PPA Media Services", with NAF then (notwithstanding objections from Complainant) requiring a subsequent change in the case caption and change in registrant location/jurisdiction. Pursuant to Whois Privacy Corp's "Service Agreement," located on the website <whoisprivacycorp.com>, "Whois Privacy provides You with a[] Proxy service allowing you to keep certain identity and contact details from appearing in public Whois information. We will become the registered name holder of record, and ou[r] identity and contact information is displayed in the Whois data." Spiegel Decl. ¶10-11, Exh O (Service Agreement) and Exh P (Terms of Use, listing its registration location as London, UK). However, Whois Privacy Corp is not a typical, legitimately operated identity masking service. Rather, it provides a straw man/proxy service used to hide the identity of the website operator, with Whois Privacy Corp as the actual and legal registrant pursuant to ICANN registrant rules and policies. As a result, Respondent's co-conspirator and/or its alias is also a recognized serial cybersquatter. See, e.g., Zions Bancorporation v. Ryan G Foo, PPA Media Services / Domain Admin, Whois Privacy Corp., Case No. D2014-2278 (WIPO April 9, 2015); Google Inc. v. Domain Admin / Whois Privacy Corp., Claim No. FA1502001605239 (NAF 2015); Google Inc. v. Domain Admin / Whois Privacy Corp., Claim No. FA1501001600801 (NAF 2015); Zillow, Inc. v. Domain Admin / Whois Privacy Corp., Claim No. FA1412001596560 (NAF 2015); Zillow, Inc. v. Domain Admin / Whois Privacy Corp., Claim No. FA1412001592809 (NAF 2015); Capital One Financial Corp. v. Domain Admin / Whois Privacy Corp., Claim No. FA1412001592737 (NAF 2015); Laboratory Institute of Merchandising d/b/a/ LIM College v. Domain Admin / Whois Privacy Corp., Claim No. FA1411001590824 (NAF 2014); YourGemologist, LLC v. Domain Admin / Whois Privacy Corp., Claim No. FA1411001590089 (NAF 2014); Moneytree, Inc. v. Domain Admin / Whois Privacy Corp., Claim No. FA1411001588355 (NAF 2014); Capital One Financial Corp. v Domain Admin / Whois Privacy Corp., Claim No. FA1410001582803 (NAF 2014). Accordingly, Complaint objects to NAF's and the Registrar's self-serving (as it owns Whois Privacy Corp) subsequently allowed change in the listed name of the Respondent after submission of the complaint and action to NAF, which should therefore also include the name "Domain Admin / Whois Privacy Corp" as respondent, or at least as an alias of Respondent Ryan G Foo / PPA Media Services in the case name and holding.
Compl. at 2-3.
Under the circumstances, the Panel considers it appropriate to include both Domain Admin / Whois Privacy Corp. and Ryan G Foo / PPA Media Services in the caption of this proceeding. See Zions Bancorporation v. Ryan G Foo, PPA Media Services / Domain Admin, Whois Privacy Corp., D2014-2278 (WIPO Apr. 9, 2015).
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