URS FINAL DETERMINATION

 

Netflix, Inc. v. Domains By Proxy, LLC et al.

Claim Number: FA1505001620796

 

DOMAIN NAME

<netflix.video>

 

PARTIES

Complainant: Netflix, Inc. of Los Gatos, California, United States of America.

Complainant Representative: Holland & Hart LLP of Boulder, Colorado, United States of America.

 

Respondent: Steve William, of Orlando, Florida, United States of America.

 

Domains By Proxy, LLC, of Scottsdale, Arizona, US.

 

O.R.B. LLC of N/A, United States of America.

 

REGISTRIES and REGISTRARS

Registries: VIDEO Registry

Registrars: GoDaddy.com, LLC

 

EXAMINER

The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Examiner in this proceeding.

 

Jeffrey M. Samuels, as Examiner.

 

PROCEDURAL HISTORY

Complainant submitted: May 26, 2015

Commencement: May 28, 2015     

Response Date: May 31, 2015

 

Having reviewed the communications records, the Examiner finds that the Forum has discharged its responsibility under URS Procedure Paragraphs 3 and 4 and Rule 4 of the Rules for the Uniform Rapid Suspension System (the "Rules").

 

RELIEF SOUGHT

Complainant requests that the domain name be suspended for the life of the registration.

 

STANDARD OF REVIEW

Clear and convincing evidence.

 

FINDINGS and DISCUSSION

 

Complainant is the world’s largest online streaming service, offering more than 62 million members in over 50 countries access to a wide variety of TV shows and movies through their computers, TVs, or mobile devices.  It had worldwide revenue of $5.5 billion in 2014.  Complainant owns over 250 trademark registrations in over 100 countries for the NETFLIX mark, as well as the domain name netflix.com.

 

Respondent purchased the social network Netflix.Video on May 6, 2015. Netflix. Video is a messaging, picture share, video chat, video messaging and video conferencing service offered through perceive.social.com, the social network for all religions.  Users of such service will have access to Netflix.Video by invitation only and be able to discuss their religious beliefs in order to obtain a better understanding of each other. The Netflix.Video site will have a disclaimer on the front page.

 

URS Procedure 1.2.6, requires Complainant to prove, by clear and convincing evidence, each of the following three elements to obtain an order that a domain name should be suspended.

 

The Examiner concludes that the disputed domain name, netflix.video, is identical or confusingly similar to the NETFLIX mark.  The domain name incorporates in full the NETFLIX mark adding only the descriptive term “video.”  The evidence also establishes that Complainant owns national registrations for the NETFLIX mark and that the mark is in current use.

 

The Examiner further concludes that Respondent has no rights or legitimate interests in the disputed domain name.  In this regard, the Examiner notes that the disputed domain name is not currently being used in connection with an active site and that, as noted above, the domain name is identical or confusingly similar to Complainant’s NETFLIX mark.

 

The evidence also supports the finding that the disputed domain name was registered and is being used in bad faith.  As noted by Complainant, the disputed domain name was registered 17 years after Complainant began using the NETFLIX mark, 18 years after Complainant registered the netflix.com domain name, and 13 years after Complainant first registered the NETFLIX mark in the U.S. While there is no evidence that Respondent has attempted to sell the domain name to Complainant, in view of the commercial success enjoyed by Complainant’s NETFLIX service, it strains credulity to believe that Respondent was not aware of Complainant and of its NETFLIX mark when it purchased the netflix.video domain name.  Moreover, the use of the term “video” in the disputed domain name heightens the association between Complainant and the disputed domain name, given that Complainant’s NETFLIX mark is used in connection with video services.  Respondent’s current “passive” use of the disputed domain name is another factor that supports a finding of the requisite bad faith.

 

FINDING OF ABUSE or MATERIAL FALSEHOOD

 

Respondent asserted that the instant complaint is an abuse of the URS process and/or contains material falsehoods.  Respondent contends that Complainant is a subscription service and would not suffer any harm given that the disputed domain name includes the term “video.”  Respondent, in its Response, also advances Constitutional arguments, namely, its First Amendment rights under the “Free Exercise” of religion and “Establishment” Clauses.

 

The Examiner finds that the complaint does not constitute an abuse of the URS process or contain material falsehoods.  As determined above, the addition of the term “video” in the disputed domain name heightens the harm suffered by Complainant.  With respect to Respondent’s Constitutional arguments, nothing in the instant decision prohibits Respondent from exercising its First Amendment rights; it must do so, however, in a manner that does not conflict with Complainant’s legal rights.

 

DETERMINATION

After reviewing the parties’ submissions, the Examiner determines that

the Complainant has demonstrated all three elements of the URS by a standard of clear and convincing evidence.  The Examiner hereby Orders the following domain names be SUSPENDED for the duration of the registration: netflix.video.

 

Jeffrey M. Samuels, Examiner

Dated:  June 01, 2015