Blitz NV, LLC / Dan Bilzerian v. Graf Alexandr
Claim Number: FA1906001848122
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bilzerian247.com>, registered with Regional Network Information Center, JSC dba RU-CENTER.
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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 17, 2019; the Forum received payment on June 17, 2019.
On June 18, 2019, Regional Network Information Center, JSC dba RU-CENTER confirmed by e-mail to the Forum that the <bilzerian247.com> domain name is registered with Regional Network Information Center, JSC dba RU-CENTER and that Respondent is the current registrant of the name. Regional Network Information Center, JSC dba RU-CENTER has verified that Respondent is bound by the Regional Network Information Center, JSC dba RU-CENTER 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 21, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 11, 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@bilzerian247.com. Also on June 21, 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 15, 2019 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Darryl C. Wilson 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 a famous Internet personality, actor, venture capitalist, and poker player. Complainant has rights in the BILZERIAN mark through its registration of the mark with the Office for Harmonization in the Internal Market (“OHIM”) (e.g. Reg. No. 14,376,016, registered Oct. 29, 2015). Respondent’s <bilzerian247.com> domain name is confusingly similar to Complainant’s mark as it contains the mark in its entirety while adding the number “247” and the “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <bilzerian247.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the mark for any purpose. Respondent also does not use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent uses the domain name to offer to sell unauthorized digital copies of active, stolen credit cards, all under Complainant’s name and images.
Respondent registered and uses the <bilzerian247.com> domain name in bad faith. Respondent disrupts Complainant’s business by intentionally attempting to divert, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s BILZERIAN mark as to the source, sponsorship, affiliation, and endorsement of the goods/services offered through Respondent’s website. Additionally, Respondent is presumed to have knowledge of Complainant’s mark and reputation because Respondent’s domain name incorporates Complainant’s mark in its entirety and an unauthorized image of Complainant’s.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is Blitz NV, LLC / Dan Bilzerian (“Complainant”), of Las Vegas, NV, USA. Complainant is the owner of international and domestic registrations for the mark BILZERIAN, and variations thereon, consisting of the family of BILZERIAN marks. Complainant has continuously used the BILZERIAN mark since at least as early as 2015, in connection with his provision of entertainment related goods and services. Complainant is also the owner of many domain names incorporating his mark such as <bilzerianentertainment.com>, registered in 2013.
Respondent is Graf Alexandr (“Respondent”), of Slobozia, Moldova. Respondent’s registrar’s address is listed as Moscow, Russia. The Panel notes that Respondent registered the <bilzerian247.com> domain name on or about May 14, 2019.
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”).
PRELIMINARY ISSUE: MULTIPLE COMPLAINANTS
In the instant proceedings, there are two Complainants. Paragraph 3(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that “[a]ny person or entity may initiate an administrative proceeding by submitting a complaint.” The Forum’s Supplemental Rule 1(e) defines “The Party Initiating a Complaint Concerning a Domain Name Registration” as a “single person or entity claiming to have rights in the domain name, or multiple persons or entities who have a sufficient nexus who can each claim to have rights to all domain names listed in the Complaint.” There are two (2) Complainants in this matter: Blitz NV, LLC and Dan Bilzerian. Complainant Blitz NV, LLC is a Nevada limited liability company that controls and enforces Complainant Dan Bilzerian’s brand. The Panel finds that the evidence in the Complaint is sufficient to establish a sufficient nexus or link between the Complainants, and accordingly treats them as a single entity in this proceeding. Therefore, the Panel will refer to the Complainants collectively as “Complainant.”
PANEL NOTE: SUPPORTED LANGUAGE REQUEST
The Panel notes that Complainant requests that the language of this administrative proceeding proceed in the English language pursuant to UDRP Rule 11(a). Complainant makes this request in light of the Russian language Registration Agreement. 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.
Complainant claims rights in the BILZERIAN mark through its registration of the mark with the OHIM (e.g. Reg. No. 14,376,016, registered Oct. 29, 2015). Registration of a mark with the OHIM sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i). See NIKE, Inc., and Nike Innovate, C.V. v. Emile Boulanger, FA 1732458 (Forum July 3, 2017) (“Registration with the OHIM is sufficient to demonstrate rights in a mark under Policy ¶ 4(a)(i).”). The Panel here finds that Complainant has established rights in the BILZERIAN mark for the purposes of Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <bilzerian247.com> domain name is confusingly similar to Complainant’s mark as it contains the mark in its entirety while adding the number “247” and the “.com” generic top-level domain (“gTLD”). The addition of numbers and a gTLD to a registered mark generally fails to sufficiently distinguish a domain name for the purposes of Policy ¶ 4(a)(i). See Home Depot Product Authority, LLC v. Angelo Kioussis, FA 1784554 (Forum June 4, 2018) (“The domain name contains the mark in its entirety, with only the addition of the generic letters ‘sb’ and the digits ‘2018,’ plus the generic Top Level Domain (“gTLD”) ‘.com.’ These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy.”). The Panel here finds that the <bilzerian247.com> domain name is confusingly similar to the BILZERIAN mark under Policy ¶ 4(a)(i).
Respondent raises no contentions with regards to Policy ¶ 4(a)(i).
The Complainant has proven this element.
The Panel notes that 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), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”).
The Panel here finds that Complainant has set forth the requisite prima facie case.
Complainant contends that Respondent has no rights or legitimate interests in the <bilzerian247.com> domain name as Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the mark for any purpose. Relevant information includes the WHOIS, assertions by a complainant regarding the nature of its relationship with a respondent, and other evidence in the record to support these assertions. See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same); see also Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sep. 4, 2018) (concluding that Respondent was not commonly known by the disputed domain name where “the WHOIS of record identifies the Respondent as “Bhawana Chandel,” and no information in the record shows that Respondent was authorized to use Complainant’s mark in any way.”). The WHOIS identifies “Graf Alexandr” as the registrant, and nothing in the record indicates that Complainant authorized Respondent to use the mark for any purpose. The Panel here finds that Respondent is not commonly known by the <bilzerian247.com> domain name under Policy ¶ 4(c)(ii).
Additionally, Complainant argues that Respondent uses the domain name to offer to sell unauthorized digital copies of active, stolen credit cards, all under Complainant’s name and images. Using a confusingly similar domain to promote services unrelated to a complainant can evince a lack of rights and legitimate interests under Policy ¶¶ 4(c)(i) and/or (iii). See Spike's Holding, LLC v. Nexperian Holding Limited, FA 1736008 (Forum July 21, 2017) (“The Panel therefore finds that Respondent’s unrelated use of the <finishnline.com> domain name evinces a lack of rights and legitimate interests under Policy ¶ 4(c)(i) & (iii).”); see also Mortgage Research Center LLC v. Miranda, FA 993017 (Forum July 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for 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).”). Complainant provides a screenshot of the resolving webpage, which displays an image of Complainant Dan Bilzerian, a login option, all while purporting to sell “Credit Cards info for real and online carding.” The Panel here finds that Respondent’s use of the domain name to display Complainant’s images and promote unrelated products/services fails to amount to any bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii).
Respondent raises no contentions with regards to Policy ¶ 4(a)(ii).
The Complainant has proven this element.
Complainant claims that Respondent disrupts Complainant’s business by intentionally attempting to divert, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s BILZERIAN mark as to the source, sponsorship, affiliation, and endorsement of the goods/services offered through Respondent’s website. Using a confusingly similar domain name in a manner disruptive of a complainant’s business by trading upon the goodwill of a complainant for commercial gain can evince bad faith under Policy ¶¶ 4(b)(iii) & (iv). See PopSockets LLC v. san mao, FA 1740903 (Forum Aug. 27, 2017) (finding disruption of a complainant’s business which was not directly commercial competitive behavior was nonetheless sufficient to establish bad faith registration and use per Policy ¶ 4(b)(iii)); see also Monsanto Co. v. Decepticons, FA 101536 (Forum Dec. 18, 2001) (finding that the respondent's use of <monsantos.com> to misrepresent itself as the complainant and to provide misleading information to the public supported a finding of bad faith). The Panel again notes that Complainant provides a screenshot of the resolving webpage which displays an image of Complainant Dan Bilzerian, a login option, all while purporting to sell “Credit Cards info for real and online carding.” The Panel here finds that Respondent’s attempted disruption of Complainant’s business and efforts to commercially benefit from those actions indicate bad faith registration and use under Policy ¶¶ 4(b)(iii) & (iv).
Further, Complainant argues that Respondent had actual knowledge of Complainant’s rights in the BILZERIAN mark at the time of registering the <bilzerian247.com> domain name. Actual knowledge of a complainant's rights in a mark prior to registering a confusingly similar domain name can evince bad faith under Policy ¶ 4(a)(iii). See iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum Jan. 1, 2018) (“Respondent’s prior knowledge is evident from the notoriety of Complainant’s BITFINEX trademark as well as from Respondent’s use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant”). Complainant contends that Respondent’s knowledge can be inferred given Complainant’s fame and notoriety and as Respondent’s domain name incorporates Complainant’s mark in its entirety along with an unauthorized image of Complainant’s. The Panel here finds that Respondent did have actual knowledge of Complainant’s mark, demonstrating bad faith registration and use under Policy ¶ 4(a)(iii).
Respondent raises no contentions with regards to Policy ¶ 4(a)(iii).
The Complainant has proven this element.
As the Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <bilzerian247.com> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: July 29, 2019
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