DramaFever Corp. v. olxhost c/o olxhost
Claim Number: FA1511001649982
Complainant is DramaFever Corp. (“Complainant”), represented by Evan Stone of Stone & Vaughan, PLLC, Texas, USA. Respondent is olxhost c/o olxhost (“Respondent”), Pakistan.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <drama-fever.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
Each undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as a Panelist in this proceeding.
Honorable John J. Upchurch, (Ret.), Honorable Charles K. McCotter, Jr., (Ret.) and Paul M. DeCicco, Esq. (Chair) as Panelists.
Complainant submitted a Complaint to the Forum electronically on November 25, 2015; the Forum received payment on November 25, 2015.
On December 1, 2015, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <drama-fever.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 December 1, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 21, 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@drama-fever.com. Also on December 1, 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 December 30, 2015, pursuant to Complainant's request to have the dispute decided by a three-member Panel, the Forum appointed Honorable John J. Upchurch, (Ret.), Honorable Charles K. McCotter, Jr., (Ret ) and Paul M. DeCicco, Esq. (Chair) as Panelists.
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 contends as follows:
Complainant uses the DRAMAFEVER mark in connection with streaming downloadable content over the internet.
Complainant has rights in the DRAMAFEVER mark through registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,513,324, registered April 15, 2014).
Respondent’s disputed <drama-fever.com> is confusingly similar to Complainant’s DRAMAFEVER mark as the domain merely adds a hyphen and the generic top-level domain (“gTLD”) “.com.”
Respondent has no rights or legitimate interests in the disputed domain name. Respondent has never been authorized by Complainant to use the DRAMAFEVER mark or had a relationship with Complainant. Respondent’s use of the domain, to distribute content owned by Complainant, is not a legitimate use.
Respondent has registered and is using the domain name in bad faith. Respondent’s bad faith is evident from Respondent’s attempt to pass of as Complainant through use of Complainant’s stylized DRAMAFEVER logo as wells as offering Complainant’s copy written content.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant demonstrates rights in its DRAMAFEVER trademark by showing a USPTO certificate of registration for such mark.
Respondent registered the at-issue domain name subsequent to Complainant’s obtaining rights in its DRAMAFEVER trademark.
Respondent is not authorized to use Complainant’s trademark.
Respondent is not commonly known by the at-issue domain name.
Respondent does not use the at-issue domain name in connection with a bona fide business nor in association with a non-commercial or fair use.
The website found at <drama-fever.com> is a portal for unauthorized distribution of motion picture content. Almost all of the content on the <drama-fever.com> website originates from Korea and the overwhelming majority of the content is owned or licensed by DramaFever Corp., the Complainant.
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.”).
The at-issue domain name is confusingly similar to a mark in which Complainant has rights.
Complainant’s registration of its DRAMAFEVER mark with a federal trademark authority like the USPTO is sufficient to establish rights in the mark for the purposes of Policy ¶ 4(a)(i). See Automotive Racing Products, Inc. v. Linecom, FA 836787 (Nat. Arb. Forum Dec. 21, 2006) (finding that the Complainant’s federal trademark registration established its rights in the mark under Policy ¶ 4(a)(i)); see also AOL LLC v. Interrante, FA 681239 (Nat. Arb. Forum May 23, 2006) (finding that where the complainant had submitted evidence of its registration with the USPTO, “such evidence establishes complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i).”). It is immaterial that Complainant may have registered its mark in a jurisdiction other than one in which Respondent resides. See Renaissance Hotel Holdings, Inc. v. Renaissance Cochin, FA 932344 (Nat. Arb. Forum Apr. 23, 2007) (finding that it does not matter whether the complainant has registered its trademark in the country in which the respondent resides, only that it can establish rights in some jurisdiction).
The at-issue <drama-fever.com> domain name contains Complainant’s DRAMAFEVER trademark with its component terms, DRAMA and FEVER, separated by a hyphen and the top-level domain name, “.com,” appended to the resulting string. Respondent’s insertion of a hyphen into Complainant’s trademark does not distinguish the domain name from Complainant’s mark under Policy ¶ 4(a)(i), nor does the addition of a necessary top-level domain name such as “.com.” Therefore, the Panel finds that Respondent’s <drama-fever.com> domain name is confusingly similary to Complainant’s DRAMAFEVER trademark. See Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing similarity where the domain name in dispute contains the identical mark of the complainant combined with a generic word or term); see also, Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) (“[I]t is a well-established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.”).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006). Since Respondent failed to respond, absent evidence of Policy ¶4(c) circumstances Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at-issue domain name.
WHOIS information for the at-issue domain names lists “olxhost c/o olxhost” as the domain name’s registrant and there is nothing in the record that otherwise suggests Respondent is commonly known by the <drama-fever.com> domain name. Therefore, the Panel finds that Respondent is not commonly known by the at-issue domain name pursuant to Policy ¶ 4(c)(ii). See Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name).
Respondent’s <drama-fever.com> domain name addresses a website that attempts to pass itself off as Complainant’s. The website displays a version of Complainant’s logo and copies the look and feel of Complainant’s official website. Further, the website offers site visitors Complainant’s copyrighted motion picture content. Using the domain name in a manner designed to allow Respondent to pass itself off as Complainant is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Kmart of Mich., Inc. v. Cone, FA 655014 (Nat. Arb. Forum April 25, 2006) (The panel found the respondent’s attempt to pass itself of as the complainant was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii) when the respondent used the disputed domain name to present users with a website that was nearly identical to the complainant’s website).
Given the forgoing, Complainant satisfies its initial burden under Policy ¶ 4(a)(ii) and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name.
Respondent registered the <drama-fever.com> domain name in bad faith. As discussed below, Policy ¶ 4(b) specific bad faith circumstances are present which compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
As mentioned above regarding Policy ¶ 4(a)(ii), Respondent attempts to pass itself off as Complainant via the at-issue domain name. Respondent unabashedly displays Complainant’s stylized DRAMAFEVER logo on the <drama-fever.com> website and further offers Complainant’s copyrighted motion picture material on the website without authorization to do so. Respondent’s use of the domain name in this manner clearly indicates Respondent’s bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iv). See Am. Online, Inc. v. Miles, FA 105890 (Nat. Arb. Forum May 31, 2002) (“Respondent is using the domain name at issue to resolve to a website at which Complainant’s trademarks and logos are prominently displayed. Respondent has done this with full knowledge of Complainant’s business and trademarks. The Panel finds that this conduct is that which is prohibited by Paragraph 4(b)(iv) of the Policy.”).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <drama-fever.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable John J. Upchurch, (Ret.),
Honorable Charles K. McCotter, Jr., (Ret.), and
Paul M. DeCicco, Esq. Chair, as Panelists
Dated: January 3, 2016
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