DECISION

 

Licensing IP International S.ŗ.r.l. v. Anton Stilov

Claim Number: FA2010001916317

 

PARTIES

Complainant is Licensing IP International S.ŗ.r.l. (ďComplainantĒ), represented by ROBIC, LLP, Canada.† Respondent is Anton Stilov (ďRespondentĒ), Russian Federation.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <brazzershd.pro>, registered with Danesco Trading Ltd.

 

PANEL

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.

 

Charles A. Kuechenmeister, Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on October 8, 2020; the Forum received payment on October 8, 2020.

 

On October 14, 2020, Danesco Trading Ltd. confirmed by e-mail to the Forum that the <brazzershd.pro> domain name (the Domain Name) is registered with Danesco Trading Ltd. and that Respondent is the current registrant of the name.† Danesco Trading Ltd. has verified that Respondent is bound by the Danesco Trading Ltd. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANNís Uniform Domain Name Dispute Resolution Policy (the ďPolicyĒ).

 

On October 16, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint setting a deadline of November 5, 2020 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondentís registration as technical, administrative, and billing contacts, and to postmaster@brazzershd.pro.† Also on October 16, 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 Respondentís 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 November 10, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Charles A. Kuechenmeister 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.

 

RELIEF SOUGHT

Complainant requests that the Domain Name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant and its corporate affiliates operate in the online adult entertainment market. †Complainant has rights in the BRAZZERS mark through its registration of that mark with the United States Patent and Trademark Office (USPTO), the European Union Intellectual Property Office (EUIPO) and other governmental trademark authorities. †Respondentís <brazzershd.pro> Domain Name is identical or confusingly similar to Complainantís BRAZZERS mark as it consists of Complainantís mark followed by the generic or descriptive acronym ďHDĒ and the ď.proĒ generic top-level domain (gTLD).

 

Respondent has no rights or legitimate interests in the Domain Name. †He is not commonly known by the Domain Name and Complainant has not authorized him to use the BRAZZERS mark. †Respondent has not used the Domain Name in connection with a bona fide offering of goods or services or for a noncommercial or fair use as he is using it to divert consumers away from Complainantís website to his own website, which provides illegal reproduction of video content belonging to Complainant and Complainantís corporate affiliate.

 

Respondent registered and uses the <brazzershd.pro> domain name in bad faith. †Respondent uses the Domain Name to disrupt Complainantís business by diverting Internet users away from Complainantís website to Respondentís competing website, and he had actual knowledge of Complainantís rights to the BRAZZERS mark when he registered the Domain Name.

 

B. Respondent

Respondent did not submit a Response in this proceeding.

 

FINDINGS

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 a complainant to prove each of the following three elements to obtain an order cancelling or transferring a domain name:

 

(1)  the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and

(2)  the 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, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules the Panel will decide this administrative proceeding on the basis of Complainant's undisputed representations 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.† Nevertheless, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. †eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (ďBecause Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the ComplaintĒ), WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (WIPO Overview 3.0), at ∂ 4.3 (ďIn cases involving wholly unsupported and conclusory allegations advanced by the complainant, . . . panels may find thatódespite a respondentís defaultóa complainant has failed to prove its case.Ē).

 

The Panel finds as follows:

 

Identical and/or Confusingly Similar

Complainant registered the BRAZZERS mark with the USPTO (Reg. No. 3,621,570) on May 19, 2009 and with the EUIPO (Filing No 010175909) on September 1, 20012 (Complaint Appendix 3). †These registrations are sufficient to establish Complainantís rights in its mark for the purposes of Policy ∂ 4(a)(i). †DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (ďComplainantís ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ∂ 4(a)(i).Ē).

 

Respondentís <brazzershd.pro> Domain Name is identical or confusingly similar to Complainantís BRAZZERS mark as it incorporates that mark in its entirety, merely adding the generic or descriptive acronym ďHDĒ and the ď.proĒ gTLD. †These changes are not sufficient to distinguish the Domain Name from Complainantís mark for the purposes of Policy ∂ 4(a)(i). Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainantís entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain as the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy).

 

For the reasons set forth above, the Panel finds that the Domain Name is identical or confusingly similar to the BRAZZERS mark, in which Complainant has substantial and demonstrated rights.

 

Rights or Legitimate Interests

If a complainant makes a prima facie case that the respondent lacks rights or legitimate interests in the domain name under Policy ∂ 4(a)(ii), the burden of production shifts to respondent to come forward with evidence that it has rights or legitimate interests in it.† Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (ďUnder 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 interestsĒ).† If a respondent fails to come forward with such evidence, the complainantís prima facie evidence will be sufficient to establish that respondent lacks such rights or legitimate interests.† If the respondent does come forward with such evidence, the Panel must assess the evidence in its entirety.† At all times, the burden of proof remains on the complainant.† WIPO Overview 3.0, at ∂ 2.1.

 

Policy ∂ 4(c) lists the following three nonexclusive circumstances, any one of which if proven can demonstrate a respondentís rights or legitimate interests in a domain name for the purposes of Policy ∂ 4(a)(ii):

 

(i)            before any notice to the respondent of the dispute, the respondent has used or has made 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)          the respondent (as an individual, business or other organization) has been commonly known by the domain name, even if the respondent has acquired no trademark or service mark rights; or

(iii)         the respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

 

Complainant asserts that Respondent has no rights or legitimate interests in the Domain Name for a number of reasons:† (i) Respondent has not been commonly known by the Domain Name, (ii) Complainant has not authorized or permitted Respondent to use its mark, and (iii) Respondent is not using the Domain Name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use because the web site resolving from it diverts consumers away from Complainantís website to his own website, which provides illegal reproduction of video content belonging to Complainant and Complainantís corporate affiliate.† These allegations are addressed as follows:

 

The information furnished to the Forum by the registrar lists ďAnton StilovĒ as the registrant of the Domain Name.† This name bears no resemblance to the Domain Name. †Evidence could, of course, in a given case demonstrate that the respondent is commonly known by a domain name different from the name in which it registered the domain name, e.g., the case of a domain name incorporating the brand name of a specific product offered by and associated with the respondent.† In the absence of any such evidence, however, UDRP panels have consistently held that WHOIS evidence of a registrant name which does not correspond with the domain name is sufficient to prove that the respondent is not commonly known by the domain name.† 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 respondentís use of the same), Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 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).† The Panel is satisfied that Respondent has not been commonly known by the Domain Name for the purposes of Policy ∂ 4(c)(ii).

 

Complainant states that it has never authorized or permitted Respondent to use its mark or to register its mark as a domain name. Complainant has specific competence to make this statement, and it is unchallenged by any evidence before the Panel.† In the absence of evidence that a respondent is authorized to use a complainantís mark in a domain name or that a respondent is commonly known by the disputed domain name, the respondent may be presumed to lack rights or legitimate interests in the domain name. †IndyMac Bank F.S.B. v. Eshback, FA 830934 (Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainantís mark and failed to submit evidence that it is commonly known by the domain name), Indeed, Inc. v. Ankit Bhardwaj / Recruiter, FA 1739470 (Forum Aug. 3, 2017) (ĒRespondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainantís trademark in any capacity and, as discussed below, there are no Policy ∂ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at-issue domain name.Ē).

 

Complaint Annex 10 is a screenshot of the web site resolving from the Domain Name.† It prominently features the name BRAZZERS and offers sexually-oriented photos.† The appearance and general layout of the pages copy and imitate those of Complainantís own web site shown on Complaint Annex 9, even down to the black background and type of font, with the letters ZZ in BRAZZERS appearing in yellow and the remaining letters in white.† Some of the text in Respondentís site appears in Cyrillic script while the text in Complainantís site does not, but apart from this the appearance of the two sites is the same.† Respondent is clearly passing off as and impersonating Complainant.† Using a confusingly similar domain name for a webpage that passes off as and impersonates a complainant is not a bona fide offering of goods or services within the meaning of Policy ∂ 4(c)(i) or a legitimate noncommercial or fair use within the meaning of Policy ∂ 4(c)(iii). Netflix, Inc. v. Irpan Panjul / 3corp.inc, FA 1741976 (Forum Aug. 22, 2017) (ďThe usage of Complainantís NETFLIX mark which has a significant reputation in relation to audio visual services for unauthorised audio visual material  is not fair as the site does not make it clear that there is no commercial connection with Complainant and this amounts to passing off . . . As such the Panelist  finds that Respondent does not have rights or a legitimate interest in the Domain Name.Ē).

 

Complainant alleges that some of the content on Respondentís site is illegally-reproduced video content belonging to Complainant and its corporate affiliate.† Some of the video content offered on Respondentís site is advertised as ďBrazzers.com/freevid,Ē and this may well be the proprietary content that Complainant alleges. †Using a confusingly similar domain name to divert internet users to a website featuring illegally reproduced content is not a bona fide offering of goods or services for the purposes of Policy ∂ 4(c)(i) or a legitimate noncommercial or fair use for the purposes of Policy ∂ 4(c)(iii). †Airbnb, Inc. v. Nima Rahnemoon, FA 1737766 (Forum July 25, 2017) (ďIt is clear from the evidence that Respondent has used the site attached to the Domain Name to promote illegal unauthorized use of Complainantís systemsÖ As such the Panel finds that Respondent does not have rights or a legitimate interest in the Domain Name.Ē), Fadal Engineering, LLC v. DANIEL STRIZICH,INDEPENDENT TECHNOLOGY SERVICE INC, FA 1581942 (Forum Nov. 13, 2014) (finding that Respondentís use of the disputed domain to sell products related to Complainant without authorization ďdoes not amount to a bona fide offering of goods or services under policy ∂ 4(c)(i), or a legitimate noncommercial or fair use under Policy ∂ 4(c)(iii).Ē).

 

Complainant has made its prima facie case.† On the evidence presented, and in the absence of any evidence from Respondent, the Panel finds that Respondent has no rights or legitimate interests in the Domain Name.

 

Registration and Use in Bad Faith

Policy ∂ 4(b) sets forth a nonexclusive list of four circumstances, any one of which if proven would be evidence of bad faith use and registration of a domain name.† They are as follows:

 

(i)            circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant which is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondentís documented out-of-pocket costs directly related to the domain name; or

(ii)          the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or

(iii)         the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv)         by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondentís web site or other on-line location, by creating a likelihood of confusion with the complainantís mark as to the source, sponsorship, affiliation or endorsement of the respondentís web site or location or of a product of service on the respondentĎs web site or location.

 

The evidence of Respondentís conduct discussed above in the rights or legitimate interests analysis also supports a finding of bad faith registration and use, based upon one or more of the foregoing grounds articulated in the Policy and upon additional grounds adopted by UDRP panels over the years.† First, Respondent is clearly using the Domain Name to attract, for commercial gain, Internet users to his web site by creating a likelihood of confusion with the Complainantís mark as to the source, sponsorship, affiliation or endorsement of his web site.† This fits squarely within the circumstances described in Policy ∂ 4(b)(iv) and is manifest evidence of bad faith registration and use.† AOL LLC v. iTech Ent, LLC, FA 726227 (Forum July 21, 2006) (finding that the respondent took advantage of the confusing similarity between the <theotheraol.com> and <theotheraol.net> domain names and the complainantís AOL mark, which indicates bad faith registration and use pursuant to Policy ∂ 4(b)(iv)).

 

Complainant alleges that Respondentís conduct also falls within the circumstances described in Policy ∂ 4(b)(iii).† Policy ∂ 4(b)(iii) reads as follows:† ďyou [the respondent] have registered the domain name primarily for the purposes of disrupting the business of a competitorĒ (emphasis supplied).† By using the Domain Name to attract Internet traffic to a web site which impersonates and passes off as Complainant, offering Complainantís proprietary content without authorization, Respondent is clearly disrupting the business of Complainant.† Further, by offering the same services or products as those offered by Complainant, Respondent qualifies as a competitor.† At the same time, however, the evidence is not clear as to whether disrupting Complainantís business was Respondentís primary purpose in registering the Domain Name.† The evidence suggests that Respondentís primary purpose in registering the Domain Name was not as much to harass or frustrate the business operations of a commercial adversary as it was to attract Internet traffic to his web site by creating confusion as to the source, sponsorship, affiliation or endorsement of those sites, as discussed above in the context of Policy ∂ 4(b)(iv).† Respondentís conduct may not, strictly speaking, fall within the circumstances stated in Policy ∂ 4(b)(iii).

 

That said, using a confusingly similar domain name to attract Internet traffic to a web site which passes off as and disrupts the business of a complainant, offering unauthorized reproductions of a complainantís proprietary content, is still bad faith.† Policy ∂ 4(b) recognizes that mischief can assume many different forms and takes an open-ended approach to bad faith, listing some examples without attempting to enumerate all its varieties.† Worldcom Exchange, Inc. v. Wei.com, Inc., WIPO Case No. D-2004-0955 (January 5, 2005), Bloomberg Finance L.P. v. Domain Admin - This Domain is For Sale on GoDaddy.com / Trnames Premium Name Services, FA 1714157 (Forum Mar. 8, 2017) (determining that Policy ∂ 4(b) provisions are merely illustrative of bad faith, and that the respondentís bad faith may be demonstrated by other allegations of bad faith under the totality of the circumstances).† The non-exclusive nature of Policy ∂ 4(b) allows for consideration of additional factors in an analysis for bad faith, and using a confusingly similar domain name to disrupt the business of a complainant by passing off as and impersonating that complainant is sufficient evidence of bad faith to meet the requirements of Policy ∂ 4(a)(iii).† Respondentís primary intent in registering and using the Domain Name is less important than the effect of his conduct.† Respondent knew or should have known the disruptive impact its conduct would have upon Complainantís business.† Respondent went forward with his plans in spite of that and this demonstrates bad faith independently of Policy ∂ 4(b)(iii).† Red Wing Shoe Company, Inc. v. wei zhang / Magdalena Jennifer / Mu Yan / Carolina Rodrigues / Fundacion Comercio Electronico, FA1911001873163 (Forum January 3, 2020).

 

Finally, it is evident that Respondent had actual knowledge of Complainant and its mark when it registered the Domain Name.† Respondent incorporated Complainantís BRAZZERS mark in its entirety into the Domain Name, and blatantly copied the content of Complainantís web site into his own site, even to the extent of offering some of Complainantís own products for sale.† Again considering the nonexclusive nature of Policy ∂ 4(b), registering a confusingly similar domain name with actual knowledge of a complainantís rights in the incorporated mark has often been held to be evidence of bad faith registration and use for the purposes of Policy ∂ 4(a)(iii). †Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).

 

For the reasons first set forth above, the Panel finds that Respondent registered and is using the Domain Name in bad faith within the meaning of Policy ∂ 4(a)(iii).

 

DECISION

Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <brazzershd.pro> Domain Name be TRANSFERRED from Respondent to Complainant.

 

Charles A. Kuechenmeister, Panelist

November 12, 2020

 

 

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