Spotify AB v. Rasmus Gozzi
Claim Number: FA1903001835990
Complainant is Spotify AB (“Complainant”), represented by John L. Slafsky of Wilson Sonsini Goodrich & Rosati, California, USA. Respondent is Rasmus Gozzi (“Respondent”), Sweden.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <spotifyaudioads.com>, registered with Ascio Technologies, Inc. Danmark - Filial af Ascio technologies, Inc. USA.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 26, 2019; the Forum received payment on March 26, 2019.
On April 3, 2019, Ascio Technologies, Inc. Danmark - Filial af Ascio technologies, Inc. USA confirmed by e-mail to the Forum that the <spotifyaudioads.com> domain name is registered with Ascio Technologies, Inc. Danmark - Filial af Ascio technologies, Inc. USA and that Respondent is the current registrant of the name. Ascio Technologies, Inc. Danmark - Filial af Ascio technologies, Inc. USA has verified that Respondent is bound by the Ascio Technologies, Inc. Danmark - Filial af Ascio technologies, Inc. USA 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 4, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 24, 2019 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@spotifyaudioads.com. Also on April 4, 2019, 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.
A timely Response was received and determined to be complete on April 18, 2019.
On April 22, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant 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 through its trademark registrations around the world, including with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,561,218, registered Jan. 13, 2009). Respondent’s <spotifyaudioads.com> domain name is nearly identical and confusingly similar to Complainant’s SPOTIFY mark.
Respondent has no rights or legitimate interests in the <spotifyaudioads.com> domain name. Respondent is not licensed or otherwise authorized to use Complainant’s SPOTIFY mark and is not commonly known by the disputed domain name. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the disputed domain name to divert users away from Complainant’s website to a parked webpage.
Respondent registered and uses the <spotifyaudioads.com> domain name in bad faith. Respondent attempts to disrupt Complainant’s business and attract, for commercial gain, users to the disputed domain name where Respondent does not actively use the domain name. Furthermore, Respondent had actual knowledge of Complainant’s rights in the SPOTIFY mark prior to registering and subsequent use of the disputed domain name.
B. Respondent
Respondent is not in control of the <spotifyaudioads.com> domain name and has referred the Panel to the individual he says is in control of the domain name. Respondent makes no other contentions.
Complainant 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 through its trademark registrations around the world, including with the USPTO (e.g., Reg. No. 3,561,218, registered Jan. 13, 2009). Respondent’s <spotifyaudioads.com> domain name is confusingly similar to Complainant’s SPOTIFY mark.
Respondent has no rights or legitimate interests in the <spotifyaudioads.com> domain name. Respondent uses the disputed domain name to divert users away from Complainant’s website to a parked webpage.
Respondent registered and uses the <spotifyaudioads.com> domain name 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.
Complainant has rights in the SPOTIFY mark through its trademark registrations around the world, including with the USPTO. (e.g., Reg. No. 3,561,218, registered on Jan. 13, 2009). See Vanguard Trademark Holdings USA LLC v. Wang Liqun, FA 1625332 (Forum July 17, 2015) (finding, “Registration of a mark with a governmental authority (or, in this case, multiple governmental authorities) is sufficient to establish rights in the mark for purposes of Policy ¶ 4(a)(i)”).
Respondent’s <spotifyaudioads.com> domain name is confusingly similar to Complainant’s SPOTIFY mark. The domain name incorporates the mark in its entirety and adds the term ”audioads” and the “.com” generic top-level domain (“gTLD”).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”).
Respondent lacks rights or legitimate interest in <spotifyaudioads.com> domain name.
Complainant has not authorized Respondent to use Complainant’s mark. The WHOIS information for the disputed domain name lists the registrant as “Rasmus Gozzi.” Where a response is lacking, WHOIS information can be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). Therefore, Respondent is not commonly known by the disputed domain name.
Respondent does not use the <spotifyaudioads.com> domain name to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Respondent diverts internet users from Complainant’s website to an inactive webpage. Complainant has provided screenshots of Respondent’s webpage displaying the message “This site can’t be reached.” Attempts to divert internet users to inactive or unrelated webpages is not a bona fide offering of goods or services per Policy ¶ 4(c)(i). See Herbalife Int’l, Inc. v. Farmana, D2005-0765 (WIPO Oct. 3, 2005) (parking of the domain name for many years constitutes no more than a passive use or de facto activity, which activity can reinforce a finding of no legitimate interest).
Respondent attempts to disrupt Complainant’s business and attract, for commercial gain, users to the disputed domain name because Respondent inactively holds the domain name. 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.). Also, Respondent had actual notice of Complainant’s rights in the SPOTIFY mark when registering the <spotifyaudioads.com> domain name. Therefore, Respondent registered and used the <spotifyaudioads.com> domain name in bad faith under Policy ¶ 4(a)(iii).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <spotifyaudioads.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: May 4, 2019
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