World Wrestling Entertainment, Inc. v. Dumea Alexandru
Claim Number: FA1802001771501
Complainant is World Wrestling Entertainment, Inc. (“Complainant”), represented by Matthew C. Winterroth of World Wrestling Entertainment, Inc., Connecticut, USA. Respondent is Dumea Alexandru (“Respondent”), Romania.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wwegames.info>, registered with NameCheap, Inc.
The undersigned certifies that he acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 12, 2018; the Forum received payment on February 12, 2018.
On February 12, 2018, NameCheap, Inc. confirmed by e-mail to the Forum that the <wwegames.info> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 February 13, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 5, 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@wwegames.info. Also on February 13, 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 March 8, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Bruce E. Meyerson 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
1. Complainant is an integrated media organization, a recognized leader in global entertainment, and a publicly traded company with a market capitalization of approximately $2.74 billion. Complainant has rights in the WWE mark through trademark registrations with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,621,017, registered May 12, 2009).
2. Respondent’s <wwegames.info>[1] domain name is confusingly similar to Complainant’s WWE mark as Respondent adds the generic term “games” and a “.info” generic top level domain (“gTLD”) to Complainant’s wholly incorporated mark.
3. Respondent has no rights or legitimate rights in the <wwegames.info> domain name as Respondent is not licensed or authorized to use Complainant’s WWE mark and Respondent is not commonly known by the domain name. Additionally, Respondent is not using the domain name in connection with a bona fide offer of goods and services or for a legitimate noncommercial or otherwise fair use as, instead, Respondent uses the domain name to mislead and divert users otherwise seeking Complainant to a website that features Complainant’s copyrighted, commercial content and games.
4. Respondent registered and uses the domain name in bad faith. Respondent attempts to divert users to the <wwegames.info> domain name for commercial gain as Respondent features Complainant’s copyrighted video game material and this indicates bad faith registration and use.
5. Furthermore, Respondent had actual and constructive knowledge of Complainant’s rights in the WWE mark at the time Respondent registered the <wwegames.info> domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the WWE mark. Respondent’s domain name is confusingly similar to Complainant’s WWE mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <wwegames.info> domain name and that Respondent registered and uses the 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.
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.”).
Complainant has rights in the WWE mark as Complainant registered the mark with the USPTO. Registering a mark with the USPTO is sufficient to show rights in a mark per Policy ¶ 4(a)(i). See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (“Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”). Complainant provides copies of its USPTO registrations for the WWE mark (e.g., Reg. No. 3,621,017, registered May 12, 2009). Thus, the Panel finds Complainant has rights in the WWE mark per Policy ¶ 4(a)(i).
Next, Complainant argues Respondent’s <wwegames.info> domain name is confusingly similar to Complainant’s WWE mark as Respondent merely adds a generic term and gTLD to the mark. Adding a generic term and a gTLD to a complainant’s mark does not negate any confusing similarity between a domain name and mark per Policy ¶ 4(a)(i). See Morgan Stanley v. Eugene Sykorsky / private person, FA 1651901 (Forum Jan. 19, 2016) (concluding that the addition of a generic term and top level domain to a trademark is inconsequential under a Policy ¶ 4(a)(i) analysis.). Thus, the Panel finds Respondent’s <wwegames.info> domain name is confusingly similar to Complainant’s WWE mark per Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the <wwegames.info> domain name. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel holds that Complainant has made a prima facie case.
First, Complainant asserts Respondent is not commonly known by the <wwegames.info> domain name. In the event a respondent fails to submit a response to UDRP proceedings, WHOIS information can suffice to determine whether a respondent is commonly known by the domain name per Policy ¶ 4(c)(ii). See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). The WHOIS information for the <wwegames.info> domain name identifies the registrant as “Dumea Alexandru.” Complainant further asserts it did not authorize Respondent’s use of the WWE marks. The Panel agrees and finds Respondent is not commonly known by the <wwegames.info> domain name per Policy ¶ 4(c)(ii).
Next, Complainant contends Respondent is not using the <wwegames.info> domain name in connection with a bona fide offer of goods and services or for a legitimate noncommercial or otherwise fair use as, instead, Respondent uses the <wwegames.info> domain name to mislead and divert users otherwise seeking Complainant to a website that features Complainant’s copyrighted, commercial content and games. Diverting Internet users to a resolving website by using a domain name that incorporates the mark of another and is confusingly similar to a complainant’s goods or services is not a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) and (iii). See Ripple Labs Inc. v. NGYEN NGOC PHUONG THAO, FA 1741737 (Forum Aug. 21, 2017) (“Respondent uses the [disputed] domain name to divert Internet users to Respondent’s website… confusing them into believing that some sort of affiliation exists between it and Complainant… [which] 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).”). Respondent’s website features a variety of games and content related to wrestling. Therefore, the Panel finds Respondent has used the domain name to divert Internet users seeking Complainant to Respondent’s resolving website; that is not a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) and (iii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant asserts Respondent intentionally attempts to confuse Internet users otherwise seeking Complainant by featuring Complainant’s copyrighted, commercial content and games at the resolving website from the <wwegames.info> domain name. Featuring content in an attempt to confuse Internet users as to the source, sponsorship, affiliation, or endorsement of a domain name that incorporates the mark of another demonstrates bad faith registration and use per Policy ¶ 4(b)(iv). See Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”). The record shows that Respondent’s resolving website features online games and content related to Complainant’s wrestling business, in addition to displaying Complainant’s WWE mark. Thus, the Panel finds Respondent registered and used the <wwegames.info> domain name in bad faith per Policy ¶ 4(b)(iv).
Furthermore, Complainant argues Respondent had actual notice of Complainant’s rights in the WWE mark at the time Respondent registered the <wwegames.info> domain name. The record shows that Respondent registered the domain name long after Complainant registered the WWE mark and after Complainant had established its worldwide notoriety. Registering a domain name incorporating the mark of another with actual knowledge of that mark amounts to bad faith per Policy ¶ 4(a)(iii). See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“[T]he Panel here finds actual knowledge through the name used for the domain and the use made of it.”). The Panel may finds Respondent had actual notice of Complainant’s rights in the WWE mark at the time Respondent registered the <wwegames.info> domain name, thus showing bad faith per Policy ¶ 4(a)(iii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wwegames.info> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: March 21, 2018
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