Spotify AB v. The LINE The Line / The Line
Claim Number: FA1801001765498
Complainant is Spotify AB (“Complainant”), represented by John L. Slafsky of Wilson Sonsini Goodrich & Rosati, California, USA. Respondent is The LINE The Line / The Line (“Respondent”), Luxembourg.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <spotfy.com>, registered with EuroDNS S.A.
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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 4, 2018; the Forum received payment on January 4, 2018.
On Jan 08, 2018, EuroDNS S.A. confirmed by e-mail to the Forum that the <spotfy.com> domain name is registered with EuroDNS S.A. and that Respondent is the current registrant of the name. EuroDNS S.A. has verified that Respondent is bound by the EuroDNS S.A. 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 January 11, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 31, 2018 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@spotfy.com. Also on January 11, 2018, 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 February 5, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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, Spotify AB, is a world leader in developing and distributing software and services for streaming music and other audio-video content. Complainant has rights in the SPOTIFY mark based upon its registration of the mark with multiple trademark agencies, including the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 3,561,218, registered Jan. 13, 2009; filed Jan. 4, 2007). See Compl. Ex. K. Complainant also claims common law rights in the mark dating back to its first use of the mark in commerce in 2006. See Compl. Exs. D–J. Respondent’s <spotfy.com> domain name is confusingly similar to Complainant’s SPOTIFY mark, as the domain name consists entirely of the mark, differing only by the omission of the letter “i” in the mark and the addition of the “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <spotfy.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use the SPOTIFY mark in any manner. Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent does not make any business or commercial use of the name. See Compl. Ex. M.
Respondent registered and is using the <spotfy.com> domain name in bad faith. Any possible use of the domain name would serve to draw Internet users away from Complainant and disrupt Complainant’s business. Respondent’s typosquatting behavior is independent evidence of bad faith. Further, Respondent likely had actual and/or constructive knowledge of Complainant’s rights in the SPOTIFY mark at the time it registered and subsequently used the domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding. Respondent registered the disputed domain name on January 23, 2007.
The Panel finds that the disputed domain name is confusingly similar to Complainant’s valid and subsisting trademark; that Respondent has no rights or legitimate interests in or to the dispute domain name; and that Respondent has engaged in bad faith use and registration of the dispute domain name.
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 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 (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 Panel finds that the disputed domain name, <spotfy.com>, is confusingly similar to Complainant’s valid and subsisting trademark SPOTIFY. Either through the registration of SPOTIFY or through the common law use of this mark, Complainant has adequately plead its interests in and to this trademark. Respondent arrives at the disputed domain name by merely deleting and “i” from the mark and using it in its entirety and adding the g TLD “.com.” This is inadequate to distinguish the disputed domain name from the Complainant’s trademark.
As such, the Panel finds that the disputed domain name is confusingly similar to Complainant’s trademark.
Further, the Panel finds that Respondent has no rights or legitimate interests in or to the dispute domain name. Respondent has no rights, permission or license to register the disputed domain name. Respondent is not commonly known by the disputed domain name.
Complainant also asserts Respondent’s inactive holding of the <spotfy.com> domain name indicates it does not have rights or legitimate interests in the name. Inactive holding of a domain name does not demonstrate rights or legitimate interests in the name per Policy ¶¶ 4(c)(i) or (iii). See George Weston Bakeries Inc. v. McBroom, FA 933276 (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). Complainant contends Respondent’s domain name does not resolve to an active webpage. See Compl. Ex. M. The Panel finds Respondent does not have rights or legitimate interests in the domain name per Policy ¶¶ 4(c)(i) or (iii).
Complainant also claims Respondent’s <spotfy.com> domain name is a typosquatted version of the SPOTIFY mark. Typosquatting is the practice of registering a domain name in an attempt to take advantage of Internet users’ typographical errors and can be evidence a respondent lacks rights and legitimate interests in the domain name. See The Hackett Group, Inc. v. Brian Herns / The Hackett Group, FA1412001597465 (Forum Feb. 6, 2015) (holding that the respondent’s incorporation of the complainant’s entire mark with only the addition of the letter ‘s’ indicated that the respondent had engaged in typosquatting and was further evidence that the respondent lacked rights or legitimate interests in the disputed domain name per Policy ¶ 4(a)(ii)). Complainant contends the <spotfy.com> domain name differs from the SPOTIFY mark only by the omission of the letter “i" in the mark, and is thus a classic case of typosquatting. See Compl. Ex. L. The Panel finds that Respondent’s registration of the domain name is typosquatting and indicates it lacks rights and legitimate interests in the domain name per Policy ¶ 4(a)(ii).
Furthermore, Respondent’s registration of the disputed domain name indicates that it is not using the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial of fair use. The disputed domain name resolves to a blank page. As such, Respondent has no rights or legitimate interests in or to the disputed domain name.
Finally, the Panel finds that Respondent has engaged in bad faith use and registration of the disputed domain name as any possible use Respondent could make of the disputed domain name would serve to create consumer confusion and disrupt Complainant’s business. Where a domain name is obviously connected with a complainant’s mark, a likelihood of bad faith registration and use can be found. See Love City Brewing Company v. Anker Fog / Love City Brewing Company, FA 1753144 (Forum Nov. 27, 2017) (Finding that Respondent disrupts Complainant’s business by pointing Internet users to an expired webpage. This may create the perception that Complainant is closed, never existed, or is not a legitimate business. Therefore, the Panel finds that Respondent registered and uses the disputed domain names in bad faith per Policy ¶ 4(b)(iii).); see also Phat Fashions, LLC v. Kruger, FA 96193 (Forum Dec. 29, 2000) (finding bad faith under Policy ¶ 4(b)(iv) even though the respondent has not used the domain name because “it makes no sense whatever to wait until it actually ‘uses’ the name, when inevitably, when there is such use, it will create the confusion described in the Policy”). Complainant claims that any future use of the domain name would serve to create consumer confusion and/or disrupt Complainant’s business. The Panel finds that Respondent registered and/or used the <spotfy.com> domain name in bad faith per Policy ¶¶ 4(b)(iii) and/or (iv).
Complainant also asserts that Respondent’s failure to use the <spotfy.com> domain name is evidence of its bad faith. Inactive holding of a domain name can be evidence of bad faith under Policy ¶ 4(a)(iii). See VideoLink, Inc. v. Xantech Corporation, FA1503001608735 (Forum May 12, 2015) (“Failure to actively use a domain name is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”). The Panel notes that the disputed domain name does not resolve to an active website. See Compl. Ex. M. The Panel, therefore, finds that Respondent’s inactive holding of the disputed domain name to be evidence of its bad faith per Policy ¶ 4(a)(iii).
Complainant also contends that because Respondent registered the <spotfy.com> domain name after Complainant first adopted and began using the SPOTIFY mark, it is likely that Respondent had actual knowledge of Complainant's prior rights in the mark at the time it registered the domain name. Given the fame of the mark and the totality of the circumstances, the Panel finds that Respondent had actual knowledge of Complainant’s prior rights in and to its trademark and, therefore, that Respondent engaged in bad faith use and registration of the disputed domain name.
Complainant also claims Respondent’s <spotfy.com> domain name is a typosquatted version of the SPOTIFY mark and indicated bad faith. Typosquatting is the practice of registering a domain name in an attempt to take advantage of Internet users’ typographical errors and can be independent evidence the domain name was registered and used in bad faith. See Homer TLC, Inc. v. Artem Ponomarev, FA1506001623825 (Forum July 20, 2015) (“Finally, under this head of the Policy, it is evident that the <homededpot.com> domain name is an instance of typosquatting, which is the deliberate misspelling of the mark of another in a domain name, done to take advantage of common typing errors made by Internet users in entering into a web browser the name of an enterprise with which they would like to do business online. Typosquatting is independent evidence of bad faith in the registration and use of a domain name.”). The disputed domain name, <spotfy.com>, differs from the SPOTIFY mark only by the omission of the letter “i" in the mark, and is thus a classic case of typosquatting. See Compl. Ex. L. The Panel finds that Respondent’s registration of the domain name is typosquatting and evidence of bad faith per Policy ¶ 4(a)(iii).
As such, the Panel finds that Respondent engaged in bad faith use and registration of the disputed domain name.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <spotfy.com> domain name transferred from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: February 6, 2018
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