Netflix, Inc. v. Savvy Investments, LLC Privacy ID# 972699
Claim Number: FA1906001847634
Complainant is Netflix, Inc. (“Complainant”), represented by David K. Caplan of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is Savvy Investments, LLC Privacy ID# 972699 (“Respondent”), Wyoming, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <netiflix.com>, registered with Sea Wasp, 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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 12, 2019; the Forum received payment on June 12, 2019.
On June 14, 2019, Sea Wasp, LLC confirmed by e-mail to the Forum that the <netiflix.com> domain name is registered with Sea Wasp, LLC and that Respondent is the current registrant of the name. Sea Wasp, LLC has verified that Respondent is bound by the Sea Wasp, 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 June 19, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 9, 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@netiflix.com. Also on June 19, 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.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On July 12, 2019, 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. 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 is the world’s leading internet entertainment service with over 148 million members in over 190 countries enjoying original series, documentaries, and feature films across a wide variety of genres and languages. Complainant has rights in the NETFLIX mark through its registrations with the United States Patent and Trademark Office (“USPTO”) and elsewhere around the world (e.g. Reg. No. 2,552,950 registered Mar. 26, 2002). See Compl. Annex. M. Respondent’s <netiflix.com> domain name is confusingly similar to Complainant’s NETFLIX mark as the disputed domain name incorporates the mark in its entirety, adding the single letter “i” between “net” and “flix” along with the “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <netiflix.com> domain name as Complainant has not given Respondent authorization to own or use any domain name incorporating Complainant’s mark nor is Respondent commonly known by the disputed domain name. Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent’s <netiflix.com> domain name resolves to an adult entertainment website featuring live sex cams. Respondent further uses the disputed domain name to drive traffic to Respondent’s website for commercial gain by generating revenue by selling tokens for use in tipping sex cam performers. Respondent engages in typosquatting.
Respondent registered and used the <netiflix.com> domain name in bad faith by diverting internet traffic to an adult entertainment website that Respondent uses for financial gain. Respondent engaged in typosquatting. Lastly, Respondent had actual knowledge of Complainant’s rights in the NETFLIX mark as Complainant’s mark.
B. Respondent
Respondent failed to submit a Response in this proceeding. The disputed domain name was registered on December 2, 2005
The Panel finds that the disputed domain name is confusingly similar to Complainant’s valid and subsisting trademark; that Respondent has no rights or legitimate interests in or to the disputed domain name; and that Respondent has engaged in bad faith use and registration of the dispute domain name.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The Panel finds that the disputed domain name, <netiflix.com>, is confusingly similar to Complainant’s valid and subsisting trademark, NETFLIX. Complainant has adequately plead its rights and interests in and to this trademark. Respondent arrives at the dispute domain name by merely adding the letter “i” to Complainant’s trademark and appending the g TLD “.com”. This is insufficient to distinguish the disputed domain name from Complainant’s trademark.
As such, the Panel finds that the dispute domain name is confusingly similar to Complainant’s trademark.
The Panel further finds that Respondent has no rights or legitimate interests in or to the disputed domain name. Respondent has no right, permission or license to register the dispute domain name. Respondent is not commonly known by the disputed domain name. Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent’s <netiflix.com> domain name resolves to an adult entertainment website featuring live sex cams. Respondent further uses the disputed domain name to drive traffic to Respondent’s website for commercial gain by generating revenue by selling tokens for use in tipping sex cam performers. Respondent also engages in typosquatting.
As such, the Panel finds that Respondent has no rights or legitimate interests in or to the disputed domain name.
The Panel further finds that Respondent has engaged in bad faith use and registration of the disputed domain name. Respondent registered and used the <netiflix.com> domain name in bad faith by diverting internet traffic to an adult entertainment website that Respondent uses for financial gain. Use of a disputed domain name to resolve to an adult-orientated website maybe evidence of bad faith per Policy ¶ 4(a)(iii). See White Oak Entertainment, LLC - DBA The Chateau at White Oak Vineyard v. Al Perkins, FA 1702045 (Forum Dec. 12, 2016) (finding the respondent’s use of the domain name to redirect users to a pornographic website constituted evidence of bad faith). Here, Complainant has provided the Panel with screenshots of Respondent’s domain name resolving webpage that offers pornographic images and videos. See Compl. Annex O. Therefore, the Panel finds that Respondent registered and used the disputed domain name in bad faith per Policy ¶ 4(a)(iii).
Respondent also appears to engage in typosquatting and therefore registered and used the <netiflix.com> domain name in bad faith. A respondent engages in typosquatting where a respondent registers a domain name that contains small typographical errors to a complainant’s mark. See Vanguard Trademark Holdings USA LLC v. Shuai Wei Xu / Xu Shuai Wei, FA 1784238 (Forum June 1, 2018) (finding the respondent engaged in typosquatting—and thus registered and used the at-issue domain names in bad faith—where the names consisted of the complainant’s mark with small typographical errors introduced therein). Here, the sole change Respondent made when creating the disputed domain name was the addition of the letter “i” between “net” and “flix” of Complainant’s NETFLIX mark. Therefore, the Panel finds that Respondent’s additions merely demonstrate typosquatting by Respondent and is evidence of bad faith use and registration.
Lastly, given the fame of Complainant’s mark and the totality of the circumstances, the Panel finds that Respondent had actual knowledge of Complainant’s prior rights and interests in and to the trademark NETFLIX.
As such, the Panel finds that Respondent has engaged in bad faith use and registration of the dispute domain name.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <netiflix.com> domain name be TRANSFERRED from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: July 13, 2019
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