Twitter, Inc. v. Carlos Garcia / Carlos Alaejos
Claim Number: FA1605001675243
Complainant is Twitter, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is Carlos Garcia / Carlos Alaejos (“Respondent”), Spain.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <girlsonperiscope.com> and<eroticonperiscope.com>, registered with Domain.com, LLC; and <fashiononperiscope.com>, registered with 1&1 Internet SE.
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 May 16, 2016; the Forum received payment on May 16, 2016.
On May 17, 2016 Domain.com, LLC confirmed by e-mail to the Forum that the <girlsonperiscope.com> and <eroticonperiscope.com> domain names are registered with Domain.com, LLC and that Respondent is the current registrant of the names. Domain.com, LLC has verified that Respondent is bound by the Domain.com, 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 May 18, 2016, 1&1 Internet SE confirmed by e-mail to the Forum that the <fashiononperiscope.com> domain name is registered with 1&1 Internet SE and that Respondent is the current registrant of the name. 1&1 Internet SE has verified that Respondent is bound by the 1&1 Internet SE registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the Policy.
On May 19, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 8, 2016 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@girlsonperiscope.com, postmaster@eroticonperiscope.com, and postmaster@fashiononperiscope.com. Also on May 19, 2016, 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 May 23, 2016.
On May 25, 2016, 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.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant
Complainant has registered the PERISCOPE mark with many governmental entities. See Compl., at Attached Ex. D. Respondent’s disputed domains are confusingly similar to the PERISCOPE mark as they merely add the generic term “on,” one of the generic terms “girls,” “erotic,” or “fashion,” and the generic top-level domain (“gTLD”) “.com.”
Respondent has no rights or legitimate interests in the disputed domain names. Respondent is not commonly known by the disputed domain names and is not affiliated with Complainant in any way. Further, Respondent does not use the disputed domains in connection with any bona fide offering of goods or services or for any legitimate noncommercial or fair use. Instead, <girlsonperiscope.com> resolves to live video feeds and other content from Complainant’s service (see Compl., at Attached Ex. F), as well as advertisements from third-party websites (Id.), while misrepresenting that it is affiliated with Complainant (see Compl., at Attached Ex. G (“The video Content published on [<girlsonperiscope.com>] is licensed by Twitter.”)). The resolving site for <eroticonperiscope.com> is a pay-per-click site that promotes unrelated third-party businesses. See Compl,. at Attached Ex. K (links include: “Auto Insurance,” “Bachelor Degree Programs,” “Affordable Health Care”). And the <fashiononperiscope.com> domain name redirects Internet users to <kasters.tv> which promotes a competing video platform. See Compl., at Attached Ex. J.
Respondent registered and used the disputed domain names in bad faith. Respondent’s conduct falls within the proscribed conduct of Policy ¶¶ 4(b)(iii) and (iv) as one of the domains redirects to a competing video streaming site and the inclusion of pay-per-click links and advertisements likely nets Respondent commercial gain. Further, while Respondent misrepresents that it is licensed by Complainant adds to the totality of the circumstances suggesting Respondent had actual knowledge of the PERISCOPE mark and Complainant’s rights in the mark when registering and using the disputed domains.
B. Respondent
Respondent, in its Response, consents to the transfer of the disputed domain names, stating, “The Respondent respectfully requests that the Administrative Panel accepts the remedy requested by the Complainant. The respondent agrees to transfer all the disputed domains to the complainant.” Resp., at p.2 § 5.
The Panel finds that the Respondent has consented to the transfer of the disputed domain names and, therefore, hereby orders the immediate transfer from the Respondent to the Complainant.
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language. After considering the circumstance of the present case, the Panel decides that the proceeding should be in English.
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.
Preliminary Issue: Multiple Respondents
In the instant proceedings, Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.”
Complainant contends that the domains are owned by the same entity for the following reasons:
• WHOIS for <girlsonperiscope.com> and <eroticonperiscope.com> is identical. See Compl., at Attached Ex. A.
• All of the domains have the same e-mail contact, alaexos@gmail.com. Id.
• The nominal registrant for all the domains has the same first name, Carlos. Id.
• The domains have similar structures, all ending in “onperiscope.com.” Id.
• The domains <girlsonperiscope.com> and <fashiononperiscope.com> use the same host, MSN. Id.
The Panel finds that the disputed domain names are held by the one Respondent and, therefore, finds that the Complainant has appropriately joined this one and only Respondent.
Consent to Transfer
The Panel finds that the Respondent consents to transfer the <girlsonperiscope.com>, <eroticonperiscope.com>, and <fashiononperiscope.com> domain names to Complainant. However, after the initiation of this proceeding, Domain.com, LLC and 1&1 Internet SE placed holds on Respondent’s accounts and therefore Respondent cannot transfer the disputed domain names while this proceeding is still pending. As a result, the Panel finds that in a circumstance such as this, where Respondent has not contested the transfer of the disputed domain names but instead agrees to transfer the domain names in question to Complainant, the Panel shall forego the traditional UDRP analysis and order an immediate transfer of the <girlsonperiscope.com>, <eroticonperiscope.com>, and <fashiononperiscope.com> domain names.
Having consented to the transfer, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <girlsonperiscope.com>, <eroticonperiscope.com>, and <fashiononperiscope.com> domain names transferred from the Complainant to the Respondent.
Kenneth L. Port, Panelist
Dated: May 25, 2016
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