Brentwood Holding Group Inc v. Tejas Parmar / Tejas
Claim Number: FA2008001907417
Complainant is Brentwood Holding Group Inc (“Complainant”), represented by Alina Landver of LANDVER LAW CORPORATION, APC, California, United States. Respondent is Tejas Parmar / Tejas (“Respondent”), Canada.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <flingster.pro> and <dirtyroulette.net>,(‘the Domain Names’) registered with Namecheap, Inc.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 5, 2020; the Forum received payment on August 5, 2020.
On August 6, 2020, Namecheap, Inc confirmed by e-mail to the Forum that the <flingster.pro> and <dirtyroulette.net> domain names are registered with Namecheap, Inc and that Respondent is the current registrant of the names. 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 August 13, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 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@flingster.pro, postmaster@dirtyroulette.net. Also on August 13, 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 September 8, 2020 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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 Names be transferred from Respondent to Complainant.
A. Complainant
The Complainant’s contentions can be summarised as follows;
The Complainant is the owner of the marks DIRTY ROULETTE, registered in the USA for video chat services with use recorded as 2010 and FLINGSTER, registered in the USA for video chat services with first use recorded as 2014.
The Domain Names registered in 2020 are identical to the Complainant’s trade marks merely adding gTLDs which do not distinguish the Domain Names from the Complainant’s marks for the purposes of the Policy.
The Respondent does not have rights or legitimate interests in the Domain Names, is not commonly known by them and is not authorised by the Complainant.
The Domain Names have been used for competing web sites offering video chat services under the names ‘Dirty Roulette’ and ‘Flingster’ which is confusing for Internet users who will think the sites are associated with the Complainant. This is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. It is registration and use in bad faith diverting Internet users for commercial gain.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the marks DIRTY ROULETTE, registered in the USA for video chat services with use recorded as 2010 and FLINGSTER, registered in the USA for video chat services with first use recorded as 2014.
The Domain Names registered in 2020 have been used for competing video chat services not connected with the Complainant.
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”).
<Dirtyroulette.net> consists of the Complainant's DIRTY ROULETTE mark (which is registered, inter alia in USA for video chat services with the first use recorded as 2010) and the gTLD '.net'.
<Flingster.pro> consists of the Complainant's FLINGSTER mark (which is registered, inter alia in USA for video chat services with the first use recorded as 2014) and the gTLD '.pro'.
Adding the gTLD '.net' or the gTLD '.pro' does not serve to distinguish the Domain Names from the Complainant’s marks. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Names are individually each identical for the purpose of the Policy to a mark in which the Complainant has rights.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
The Complainant has not authorised the use of its marks. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Names. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
Using a domain name for competing services not connected with the Complainants is commercial and so cannot be noncommercial legitimate fair use and is not a bona fide offering of goods or services. See Am. Intl Group Inc v Benjamin FA 944242 (Forum May 11, 2007) finding that the Respondent's use of a confusingly similar domain name to advertise real estate services which competed with the Complainant's business did not constitute a bona fide use of goods and services.)
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Names and that the Complainants have satisfied the second limb of the Policy.
In the opinion of the Panel the use made of the Domain Names in relation to the sites attached to them is confusing and disruptive in that visitors to the sites might reasonably believe they are connected to or approved by the Complainant as they offers competing video chat services under domain names which both individually contain one of the Complainant’s marks. The use of two of the Complainant's distinctive word marks, one in each of the Domain Names in relation to video chat services shows that the Respondent was aware of the Complainant and its business, rights and services at the time of registration.
Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its websites by creating a likelihood of confusion with the Complainant’s trade marks as to the source, sponsorship, affiliation or endorsement of the web sites and services offered on them likely to disrupt the business of the Complainant. See Asbury Auto Group Inc v Tex. Int'l Prop Assocs FA 958542 (Forum May 29, 2007) (finding that the respondent's use of the disputed domain name to advertise car dealerships that competed with the complainant's business would likely lead to confusion amongst Internet users as to the sponsorship or affiliation of those competing dealerships and was therefore evidence of bad faith and use).
As such, the Panelist believes that the Complainant has made out its case that the Domain Names were registered and used in bad faith and has satisfied the third limb of the Policy under para 4(b)(iv) and 4 (b)(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 <flingster.pro> and <dirtyroulette.net> domain names be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: September 8, 2020
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