Twitch Interactive, Inc. v. Liliya Nogova
Claim Number: FA1907001851719
Complainant is Twitch Interactive, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, United States. Respondent is Liliya Nogova (“Respondent”), Russia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dirtytwitch.com> registered with Registrar of Domain Names REG.RU 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.
Steven M. Levy, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 12, 2019; the Forum received payment on July 12, 2019.
On July 15, 2019, Registrar of Domain Names REG.RU LLC confirmed by e-mail to the Forum that the <dirtytwitch.com> domain name is registered with Registrar of Domain Names REG.RU LLC and that Respondent is the current registrant of the name. Registrar of Domain Names REG.RU LLC has verified that Respondent is bound by the Registrar of Domain Names REG.RU 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 July 16, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 5, 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@dirtytwitch.com. Also on July 16, 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 August 7, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Steven M. Levy, Esq. 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.
PRELIMINARY ISSUE: LANGUAGE OF PROCEEDING
The Panel notes that the Registration Agreement for the disputed domain is written in Russian, thereby making that the designated language of the proceedings. However, Complainant has alleged that because Respondent is conversant and proficient in English, the proceeding should be conducted in English. The Panel has the discretion under UDRP Rule 11(a) it has the discretion to determine the appropriate language of the proceedings taking into consideration the particular circumstances of the administrative proceeding. See FilmNet Inc. v. Onetz, FA 96196 (Forum Feb. 12, 2001 (finding it appropriate to conduct the proceeding in English under Rule 11, despite Korean being designated as the required language in the registration agreement because the respondent submitted a response in English after receiving the complaint in Korean and English). Complainant contends Respondent’s website available at the disputed domain name uses English characters and words therein, suggesting that Respondent is at least proficient in the English language. Various postings to online message boards promoting the disputed domain also appear in English. Further, Complainant is neither conversant nor proficient in the Russian language and translation of the documents in this case would require delay and unnecessary additional costs.
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest that 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.
A. Complainant
Complainant is the world’s leading social video service for online video gamers. Complainant has rights in the trademark TWITCH through its use in commerce since 2011 and its registration of the mark with the United States Patent and Trademark Office (“USPTO”) dating back to 2013. Respondent’s <dirtytwitch.com> domain name is confusingly similar to Complainant’s TWITCH mark because it incorporates the mark in its entirety and adds the word “dirty” and the “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <dirtytwitch.com> domain name as it is not commonly known by the disputed domain name nor has it been licensed, authorized, or otherwise permitted by Complainant to use the TWITCH mark. Respondent fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, Respondent’s disputed domain name resolves to a webpage that triggers phishing and virus warnings and had a fake login page seeking to harvest users’ credentials. Respondent also promotes adult and mature sexually-themed content at its site and it offers video streaming services that compete with Complainant. However, the website at the disputed domain name is currently inactive and displays a “404 Not Found” message.
Respondent registered and uses the <dirtytwitch.com> domain name in bad faith as Respondent attempts to divert Internet users for commercial gain. Next, Respondent uses the disputed domain name in furtherance of a phishing scheme. It also attempts to promote and offer mature or adult sexually-themed content. Finally, Respondent had actual knowledge of Complainant’s rights in the TWITCH mark as the mark is famous and Respondent specifically attempts to create an association with Complainant and its services.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights;
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the disputed domain name was registered and is being used by Respondent 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 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”).
Complainant argues that it has rights in the TWITCH mark through its registration of the mark with the USPTO. Registration of a mark with the USPTO is generally sufficient to establish 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.”). Here, Complainant has provided a copy of its USPTO registration for the TWITCH mark (e.g. Reg. No. 4,275,948 registered Jan. 15, 2013). Therefore, the Panel finds that Complainant has adequately shown rights in the TWITCH mark per Policy ¶ 4(a)(i).
Next, Complainant asserts that Respondent’s <dirtytwitch.com> domain name is confusingly similar to the TWITCH mark. Registration of a domain name that includes a fully formed mark and the addition of a generic term along with a gTLD does not distinguish the domain name from the mark per Policy ¶ 4(a)(i). See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i)). Here, Complainant argues that Respondent’s domain name is comprised of Complainant’s TWITCH mark to which is added the word “dirty” and the “.com” gTLD. Therefore, the Panel finds that Respondent’s domain name is confusingly similar to Complainant’s TWITCH mark per Policy ¶ 4(a)(i).
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). Should it succeed in that effort, the burden then shifts to Respondent to show that 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”).
Complainant argues that Respondent lacks rights or legitimate interest in the <dirtytwitch.com> domain name as Respondent is not commonly known by the disputed domain name nor has Respondent been given license or consent to use the TWITCH mark or register domain names using Complainant’s mark. Where a response is lacking, relevant WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). The WHOIS information for the disputed domain name identifies the registrant as “Liliya Nogova” and there is no evidence to suggest that Respondent is known otherwise, that it was authorized to use the TWITCH mark, or that it is commonly known by the disputed domain name. Therefore, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii).
Complainant next argues that Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. It states that Respondent’s disputed domain name resolves to a webpage that triggers phishing and virus warnings and that at one time it displayed a fake login page as part of a phishing scheme. Use of a disputed domain name used in the furtherance of a phishing scheme may not be a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii). See Bittrex, Inc. v. Domain Privacy Services, FA 1786849 (Forum June 15, 2018) (“Using a disputed domain name to operate an FFDNS scheme and distribute malicious software or phish for users’ information is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use of the domain name under Policy ¶ 4(c)(iii).”). Here, Complainant has provided screenshots that resulted from attempts at browsing to Respondent’s domain name. One image shows a message cautioning users of a “Deceptive site ahead” and explaining that the browser “blocked this page because it may trick you into doing something dangerous like installing software or revealing personal information like passwords or credit cards.” Another screenshot indicates that Respondent’s website was blocked by a security manager. According to Complainant, bypassing these warnings currently leads to a “404 Not Found” error. However, according to a declaration of Complainant’s attorney, bypassing these warnings previously led to an over-21 age confirmation page, and then to a page promoting “gaming streams with dirty elements.” To proceed beyond that, Respondent’s site requested login credentials for a third-party website that acts as a video game digital distribution platform. While no screenshots of the claimed login page are provided, the above-mentioned declaration attests to them and there is no Response or other submission by Respondent in this case which disputes such evidence. In light of the unrebutted prima facie case presented by Complainant, the Panel finds, by a preponderance of the evidence, that Respondent has sought to either offer malware or engage in a phishing scheme aimed at harvesting the login credentials of those visiting the <dirtytwitch.com> website. It has thus failed to make a bona fide offering of goods or services or legitimate or noncommercial fair use of the disputed domain name per Policy ¶ 4(c)(i) or (iii).
Complainant further argues that Respondent uses the <dirtytwitch.com> domain name to promote adult and mature sexual content and it cites cases for the proposition that use of a disputed domain name to promote adult and mature sexual content may not be a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii). See Twitch Interactive, Inc. v. Nigal Thornberry, FA 1698790 (Forum Nov. 29, 2016) (the Panel agrees with Complainant’s contention that “Respondent’s offering of adult-oriented material at its resolving website is evidence of its lack of rights or legitimate interests in the <twitchnudes.com> domain name.”). In a decision issued only a few days ago, this Panel stated its position that it does not view the adult or sexually-themed nature of a website, alone, as sufficient grounds upon which to find a lack of bona fide offering of goods or services. Oath Inc. v. Borisov Pavel Sergeevich, FA 1851228 (Forum Aug. 5, 2019). Rather, such cases should be examined in the same manner as disputes involving industries other than adult entertainment. Id.
Complainant additionally contends that Respondent attempts to offer competing video streaming services through its <dirtytwitch.com> domain name. Use of a disputed domain name to offer competing services and products may not be a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii). See Invesco Ltd. v. Premanshu Rana, FA 1733167 (Forum July 10, 2017) (“Use of a domain name to divert Internet users to a competing website is not a bona fide offering of goods or services or a legitimate noncommercial or fair use.”). Here, Complainant argues that Respondent uses the disputed domain name to promote alternative video streaming services for gamers. Complainant provides a declaration from one of its attorneys in which it is claimed that the <dirtytwitch.com> website was visited and that it promoted what was described on the site as “gaming streams with dirty elements.” Further, the Complainant enters into evidence screenshots of message boards and forums frequented by online gamers and esports fans in which Respondent promoted the disputed domain name and sought to drive traffic to its video streaming website. As the disputed domain name has already been found to be confusingly similar to Complainant’s TWITCH mark, the Panel finds that Respondent’s use of the domain fails to meet the standard of a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii).
Complainant argues that Respondent had actual knowledge of Complainant’s rights in the TWITCH mark due to the fame of the mark and Respondent’s attempts to create an association with Complainant and its video streaming services. Actual knowledge of a complainant’s rights in its mark may be evidence of bad faith and can be displayed through the fame of the mark and a respondent’s use of it. Such knowledge, prior to registering a disputed domain name, may form the foundation upon which to support a finding of bad faith registration under Policy ¶ 4(a)(iii). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (“Complainant contends Respondent’s appropriation of Complainant’s trademark was a clear intent to trade upon Complainant’s reputation and goodwill in order to confuse Internet users. Therefore, the Panel finds Respondent did have actual knowledge of Complainant’s mark prior to registration and this constitutes bad faith per Policy ¶ 4(a)(iii).”) Here, Complainant claims that Respondent had actual knowledge of Complainant’s rights in the TWITCH mark due to the fame of the mark and it submits into evidence media articles and web traffic statistics that show its popularity. Further, through posts on gaming and esports message boards Respondent has indicated that its <dirtytwitch.com> website offers video streaming services. Therefore, the Panel finds that Respondent had actual knowledge of Complainant’s rights in the TWITCH mark at the time it registered the disputed domain name.
Complainant next argues that Respondent registered and used the <dirtytwitch.com> domain name in bad faith because Respondent uses the disputed domain name to offer adult oriented sexual material. Prior UDRP decisions have held that a respondent’s use of a disputed domain name to display adult-oriented images can evince bad faith registration and use per Policy ¶ 4(a)(iii). See Microsoft Corporation v. Robin Taylor, FA 1389985 (Forum June 20, 2011) (“Complainant alleges that the disputed domain names each resolve to websites featuring adult-oriented material. The Panel finds that this is evidence of Respondent’s bad faith registration and use of the disputed domain names under Policy ¶ 4(a)(iii).”) Similar to its reasons noted above, this Panel declines to find bad faith based solely on the adult or sexually-themed nature of the website to which the disputed domain name resolves.
However, Complainant also argues that Respondent uses the <dirtytwitch.com> domain name in an attempt to disrupt Complainant’s business by offering competing services. Using a disputed domain name to disrupt a complainant’s business by offering competing services may be evidence of bad faith under Policy ¶ 4(b)(iii). See LoanDepot.com, LLC v. Kaolee (Kay) Vang-Thao, FA1762308 (Forum Jan. 9, 2018) (Finding that Respondent’s use of the disputed domain name to offer competing loan services disrupts Complainant’s business under Policy ¶ 4(b)(iii)). Here, Complainant claims that Respondent uses the disputed domain name to offer an alternative video streaming service to disrupt Complainant’s business. The Panel notes that, while Complainant submits no actual screenshots of the <dirtytwitch.com> website that show any such content. It does, however, support this claim with the submission of messages that promote this service which were posted by Respondent on gaming chat boards[i]. Therefore, the Panel finds that Respondent registered and uses the disputed domain name to disrupt Complainant’s business in bad faith under Policy ¶ 4(b)(iii).
Next, Complainant argues that Respondent registered and uses the <dirtytwitch.com> domain name in bad faith because Respondent attempts to create confusion and divert Internet users from Complainant’s website for commercial gain. Using a disputed domain name to divert Internet users from a complainant’s website for commercial gain may be evidence of bad faith under Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting). Here, Complainant argues that Respondent attempts to divert Internet users for commercial gain and its evidence that Respondent sought to have users log in to its service supports this. Complainant’s factual assertions are reasonable and Respondent has not participated in this case to contest them. Therefore, the Panel finds, by a preponderance of the evidence, that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(iv).
Finally, Complainant asserts that Respondent registered and used the <dirtytwitch.com> domain name in bad faith in furtherance of a phishing scheme. Use of a disputed domain name in furtherance of a phishing scheme may be evidence of bad faith per Policy ¶ 4(a)(iii). See Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA1506001625750 (Forum July 17, 2015) (“Respondent uses the <klabzuba-oilgas.com> domain to engage in phishing, which means Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).”) Here, Complainant has provided screenshots of Respondent’s domain name’s resolving webpage that shows a message that there might be a “deceptive site ahead” and Respondent has not countered Complainant’s assertion. Therefore, on the evidence before it, the Panel finds it more likely than not that Respondent was engaged in some form of phishing or other activity to infect users’ computers with malware. As such, it registered and used the disputed domain name in bad faith per 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 <dirtytwitch.com> domain name be TRANSFERRED from Respondent to Complainant.
Steven M. Levy, Esq., Panelist
Dated: August 8, 2019
[i] One example of these messages states “DirtyTwitch – spot for adult gamers who want to see something more than just gaming streams. Watch Girls play CSGO, masturbate and fulfill of your dirty desires. Support your favourite girl with skins or just watch for free – anything is allowed. 1 month Free subscription. No need to pay. Watch and enjoy right now”.
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