Licensing IP International S.à.r.l. v. Lucas Ajemian
Claim Number: FA2002001882531
Complainant is Licensing IP International S.à.r.l. (“Complainant”), represented by ROBIC, LLP, Canada. Respondent is Lucas Ajemian (“Respondent”), Virginia, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <pornhubgift.info>, registered with GoDaddy.com, 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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 8, 2020; the Forum received payment on February 8, 2020.
On February 10, 2020, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <pornhubgift.info> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.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 February 11, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 2, 2020 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@pornhubgift.info. Also on February 11, 2020, 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 6, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Alan L. Limbury 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
The domain name is confusingly similar to Complainant’s trademark PORNHUB; that Respondent has no rights or legitimate interests in the domain name, which was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
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 owns numerous registrations for the trademark PORNHUB, including United States Patent and Trademark Office (“USPTO”) Reg. No. 4,220,491 registered on October 9, 2012. The domain name is confusingly similar to Complainant’s mark since it consists of that mark together with the descriptive word “gift”, which does nothing to distinguish the domain name from the mark, and the inconsequential gTLD “.info”, which may be disregarded.
Complainant has established this element.
Paragraph 4(c) of the Policy sets out three illustrative circumstances as examples which, if established by Respondent, shall demonstrate rights to or legitimate interests in the domain name for purposes of paragraph 4(a)(ii) of the Policy, i.e.
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
Complainant’s business is the offering of adult entertainment online. Complainant has provided evidence that the PORNHUB mark is extremely well known worldwide and that its “www.pornhub.com” website receives extremely high Internet traffic.
The domain name <pornhubgift.info> was registered on October 10, 2017. It resolves to a website promoting a freely downloadable web browser of a third party. Complainant says Respondent, Lucas Ajemian, is not commonly known by the domain name nor has he been licensed or authorized by the Complainant to use Complainant’s mark. Complainant says domain names confusingly similar to its marks are attractive to redirect traffic to a landing page promoting a browser presented as optimized or popular for mobile use, given that, in 2019, mobile devices made up more than 80% of all traffic on Complainant’s website worldwide. Complainant infers that Respondent is either using the domain name as a representative or service provider of the developer and publisher of the browser or otherwise paid or rewarded for referring traffic to such landing page. This allows the Respondent to seek illegitimate commercial gain from the registration and use of the domain name.
Complainant’s assertions are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain name on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that he does have rights or legitimate interests in the domain name. See 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”). Respondent has made no attempt to do so. In the circumstances of this case, the Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has established this element.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <pornhubgift.info> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: March 18, 2020
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