Twitch Interactive, Inc. v. Yin Guo Dong c/o Dynadot
Claim Number: FA1504001613764
Complainant is Twitch Interactive, Inc. (“Complainant”), represented by Andrew VanArsdel of Seed Intellectual Property Law Group PLLC, Washington, USA. Respondent is Yin Guo Dong c/o Dynadot (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <twitcg.tv> and <twitcj.tv>, registered with DYNADOT LLC.
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 April 9, 2015; the Forum received payment on April 9, 2015.
On April 9, 2015, DYNADOT LLC confirmed by e-mail to the Forum that the <twitcg.tv> and <twitcj.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 10, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 30, 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@twitcg.tv, postmaster@twitcj.tv. Also on April 10, 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 May 12, 2015, 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. 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 owns the TWITCH mark through registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,275,948, registered January 15, 2013). Complainant uses the TWITCH mark in connection with its business, which provides a live video platform and community for gamers. The <twitcg.tv> and <twitcj.tv> domain names are confusingly similar to the TWITCH mark. The <twitcg.tv> domain name incorporates Complainant’s mark in full, misspells the mark with a “g” rather than “h,” and adds the country code top-level domain (“ccTLD”) “.tv.” The <twitcj.tv> domain name incorporates Complainant’s mark in full, misspells the mark with a “j” rather than “h,” and adds the ccTLD “.tv.”
Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name nor by Complainant’s TWITCH mark. Respondent is not licensed by Complainant to use Complainant’s mark. Further, Respondent is not using the disputed domain name for a bona fide offering of goods or services, or for a legitimate noncommercial or fair use. Respondent’s disputed domain names resolve to websites that display malware warnings.
Respondent has engaged in bad faith registration and use of the <twitcg.tv> and <twitcj.tv> domain names pursuant to Policy ¶ 4(a)(iii). Respondent uses the disputed domain names to distribute malware and create computer security issues, which is evidence of bad faith use and registration under Policy ¶ 4(b)(iv). Further, Respondent registered the disputed domain name with knowledge of Complainant’s rights to the TWITCH mark. Finally, Respondent has engaged in typosquatting, which is additional evidence of bad faith under Policy ¶ 4(a)(iii).
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Twitch Interactive, Inc., has rights in the TWITCH mark through registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,275,948, registered January 15, 2013). Complainant uses the TWITCH mark in connection with its business, which provides a live video platform and community for gamers.
Respondent, Yin Guo Dong c/o Dynadot, registered the <twitcg.tv> and <twitcj.tv> domain names on November 3, 2013. Respondent uses the disputed domain names to distribute malware and create computer security issues.
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 has rights in the TWITCH mark under Policy ¶ 4(a)(i) through registration with the USPTO. See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a USPTO trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)).
Respondent’s <twitcg.tv> and <twitcj.tv> domain names are confusingly similar to the TWITCH mark under Policy ¶ 4(a)(i). The <twitcg.tv> domain name incorporates Complainant’s mark in full, misspells the mark with a “g” rather than “h,” and adds the ccTLD “.tv.” The <twitcj.tv> domain name incorporates Complainant’s mark in full, misspells the mark with a “j” rather than “h,” and adds the ccTLD “.tv.” Domain names that vary from a registered mark by only one letter have a high probability of confusing similarity. See Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding that a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive). The use of a ccTLD, such as .tv, is not a significant factor when determining confusing similarity. See World Wrestling Fed'n Entm't, Inc. v. Rapuano, DTV2001-0010 (WIPO May 23, 2001) (“The addition of the country code top level domain (ccTLD) designation <.tv> does not serve to distinguish [the disputed domain] names from the complainant’s marks Policy ¶ 4(a)(i).since ‘.tv’ is a common Internet address identifier that is not specifically associated with Respondent.”).
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), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name).
Respondent has no rights or legitimate interests in the disputed domain names. Respondent is not commonly known by the disputed domain names or by Complainant’s TWITCH mark. The WHOIS information for the disputed domain names lists “Yin Guo Dong c/o Dynadot” as the registrant of records. Further, Respondent is not licensed by Complainant to use Complainant’s mark. See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Respondent is not using the disputed domain names for a bona fide offering of goods or services, or for a legitimate noncommercial or fair use. Respondent’s disputed domain names resolve to websites that display malware warnings. When accessing <twitcg.tv>, users find a warning that states, “Stop! This page is not safe.” When accessing <twitcj.tv>, users find a message that warns, “Important: You have spyware/adware” and then offers a phone number users can call to remove the spyware/adware on their computers. Disputed domain names that are affiliated with malware lack a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Ceridian Corp. v. Versata Software, Inc., FA 1259927 (Nat. Arb. Forum June 23, 2009) (finding that a respondent’s use of a disputed domain name to direct Internet users to a website which attempts to download computer viruses “failed to create any semblance of a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)”).
Respondent uses the disputed domain names to distribute malware and create computer security issues, which is evidence of bad faith use and registration under Policy ¶ 4(b)(iv). See Google, Inc. v. Petrovich, FA 1339345 (Nat. Arb. Forum September 23, 2010) (finding that disputed domain names which distribute malware to Internet users’ computers demonstrate Respondent’s bad faith under Policy ¶ 4(b)(iv)). Respondent’s use of malware in its disputed domain names is also general bad faith under Policy ¶ 4(a)(iii). See Victoria’s Secret Stores Brand Mgmt., Inc. v. PrivacyProtect.org, FA 1357512 (Nat. Arb. Forum December 17, 2010) (finding that a domain name attracting Internet users to a resolving website that attempts to download malicious software onto their computers to steal personal information “indicates bad faith registration and use according to Policy ¶ 4(a)(iii)”).
Further, Respondent registered the disputed domain names with actual knowledge of Complainant’s rights to the TWITCH mark. Therefore, Respondent registered the disputed domain names in bad faith under Policy ¶ 4(a)(iii). See Yahoo! Inc. v. Butler, FA 744444 (Nat. Arb. Forum Aug. 17, 2006) (finding bad faith where the respondent was "well-aware of the complainant's YAHOO! mark at the time of registration”).
Also, Respondent has engaged in typosquatting, which is evidence of bad faith under Policy ¶ 4(a)(iii). As both disputed domain names vary by just one letter, Internet users here would merely need to mistype the TWITCH mark, to be mistakenly directed to Respondent’s <twitcg.tv> and <twitcj.tv> websites rather than Complainant’s. Respondents who take advantage of common typing errors engage in bad faith registration under Policy ¶ 4(a)(iii). See Vanguard Group, Inc. v. IQ Mgmt. Corp., FA 328127 (Nat. Arb. Forum Oct. 28, 2004) (“By engaging in typosquatting, [r]espondent has registered and used the <vangard.com> domain name in bad faith pursuant to 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 <twitcg.tv> and <twitcj.tv> domain names be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: May 26, 2015
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