DECISION

 

Netflix, Inc. v. Jeff Lander

Claim Number: FA2102001933336

 

PARTIES

Complainant is Netflix, Inc. (“Complainant”), represented by David K. Caplan of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is Jeff Lander (“Respondent”), Panama.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <netlflix.com>, registered with Sea Wasp, LLC.

 

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.

 

Ho Hyun Nahm, Esq. as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on February 24, 2021; the Forum received payment on February 24, 2021.

 

On February 24, 2021, Sea Wasp, LLC confirmed by e-mail to the Forum that the <netlflix.com> domain name is registered with Sea Wasp, LLC and that Respondent is the current registrant of the name. Sea Wasp, LLC has verified that Respondent is bound by the Sea Wasp, 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 March 1, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 22, 2021 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@netlflix.com.  Also on March 1, 2021, 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 26, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Ho Hyun Nahm, 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

i) Complainant, Netflix Inc., operates an Internet entertainment service. Complainant has rights in the NETFLIX mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,552,950, registered March 26, 2002). The disputed domain name is confusingly similar to Complainant’s NETFLIX mark since it incorporates the mark in its entirety, merely adding the single letter “l” and the “.com” generic top-level domain (“gTLD”).

 

ii) Respondent does not have rights or legitimate interests in the disputed domain name because Respondent is not commonly known by the disputed domain name has no relationship with Complainant or it’s marks. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, Respondent redirects users to various webpages, some of which are suspected to distribute malware. Respondent also offers the domain name for sale.

 

iii) Respondent registered and uses the disputed domain name in bad faith. Respondent offers the disputed domain name for sale. Further, Respondent attracts users for commercial gain by redirecting to various commercial sites. Additionally, Respondent redirects unsuspecting users to potential malware. Finally, Respondent’s registration of the disputed domain name constitutes typosquatting in bad faith.

 

B. Respondent

Respondent did not submit a response to this proceeding.

 

FINDINGS

1.     The disputed domain name was registered on March 3, 2003.

 

2.    Complainant has established rights in the NETFLIX mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,552,950, registered March 26, 2002).

 

3.    Some of the websites resolving from the disputed domain are unrelated commercial websites while others are likely part of a malware distribution scheme.

 

4.    Respondent offers the disputed domain name for sale.

 

DISCUSSION

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”).

 

Identical and/or Confusingly Similar

Complainant asserts rights in the NETFLIX mark based upon registration with the USPTO. Registration with the USPTO is generally sufficient to establish rights in a mark per Policy ¶ 4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)). Complainant provides evidence of its USPTO registrations (e.g., Reg. No. 2,552,950, registered March 26, 2002). Therefore, the Panel finds that Complainant has rights in the NETFLIX mark under Policy ¶ 4(a)(i).

 

Complainant argues that the disputed domain name is confusingly similar to Complainant’s NETFLIX mark since it incorporates the mark in its entirety, merely adding the single letter “l” and the “.com” gTLD. Per Policy ¶ 4(a)(i), addition of a single letter and a gTLD to a mark is generally insufficient to negate confusing similarity between a domain name and the mark it incorporates. See OpenTable, Inc. v. Above.com Domain Privacy, FA 1626187 (Forum Aug. 10, 2015) (“Respondent’s <oipentable.com> domain name is confusingly similar to the OPENTABLE mark under Policy ¶ 4(a)(i) because the disputed domain merely adds the letter ‘i’ . . . ”). Thus, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

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”).

 

Complainant argues that Respondent does not have rights or legitimate interests in the disputed domain name because Respondent is not commonly known by the disputed domain name, and it has no relationship with Complainant or it’s marks. Where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See 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 WHOIS information of record lists the registrant as “Jeff Lander” and Complainant contends that Respondent has no connection to Complainant or its marks. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy  ¶ 4(c)(ii).

 

Additionally, Complainant argues that Respondent fails to use the disputed  domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use but instead redirects users to various webpages, some of which are suspected to distribute malware. Use of a disputed domain name to redirect Internet traffic is not a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy  ¶¶ 4(c)(i) or (iii), particularly when that redirection is to a malware website. See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Forum Sept. 30, 2003) (“Respondent's demonstrated intent to divert Internet users seeking Complainant's website to a website of Respondent and for Respondent's benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); Snap Inc. v. Domain Admin / Whois Privacy Corp., FA 1735300 (Forum July 14, 2017) (“Use of a disputed domain name to offer malicious software does not constitute a bona fide offering or a legitimate use per Policy ¶ 4(c)(i) & (iii).”). Complainant provides screenshots of the websites resolving from the disputed domain, noting that some are unrelated commercial websites while others are likely part of a malware distribution scheme. Thus, the Panel finds that Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services per Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii).

 

Complainant also notes that Respondent offers the domain name for sale. A general offer to sell a disputed domain name suggests a lack of rights and legitimate interests in the domain name per Policy ¶ 4(a)(ii). See 3M Company v. Kabir S Rawat, FA 1725052 (Forum May 9, 2017) (holding that “a general offer for sale… provides additional evidence that Respondent lacks rights and legitimate interests” in a disputed domain name). Complainant provides a screenshot of a page soliciting offers for the disputed domain name.

 

The Panel finds that Complainant has made out a prima facie case that arises from the considerations above. All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.

 

Registration and Use in Bad Faith

Complainant contends that Respondent registered and uses the disputed domain name in bad faith as Respondent offers the disputed domain name for sale. A general offer to sell a disputed domain name may support a finding of bad faith per Policy ¶ 4(b)(i). See Capital One Financial Corp. v. haimin xu, FA 1819364 (Forum Jan. 8, 2019) (“A general offer to sell a domain name can be evidence the respondent intended to make such an offer at the time it registered the name, supporting a finding of bad faith per Policy ¶ 4(b)(i).”). Complainant provides a screenshot of a page soliciting offers for the disputed domain name. Thus, the Panel finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(b)(i).

 

Further, Complainant claims that Respondent registered and uses the disputed domain name in bad faith as Respondent attracts users for commercial gain by redirecting to various commercial sites. Use of a disputed domain name to redirect Internet traffic for commercial gain evidences bad faith pursuant to 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); see also DatingDirect.com Ltd. v. Aston, FA 593977 (Forum Dec. 28, 2005) (“the Panel finds the respondent is appropriating the complainant’s mark in a confusingly similar domain name for commercial gain, which is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”). As previously noted, Complainant provides screenshots of unrelated webpages to which the disputed domain often redirects, claiming Respondent presumably profits from this redirection. The Panel therefore agrees that Respondent registered and uses the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv).

 

Complainant also argues that Respondent redirects unsuspecting users to potential malware. Use of a disputed domain to spread malicious software evidences bad faith per Policy ¶ 4(a)(iii). See Victoria’s Secret Stores Brand Mgmt., Inc. v. PrivacyProtect.org, FA 1357512 (Forum Dec. 17, 2010) (finding that a domain name attracting Internet users to a resolving website that attempts to download malicious software onto their computers to steal personal information “indicates bad faith registration and use according to Policy ¶ 4(a)(iii)”). Complainant provides a screenshot of one webpage resolving from the disputed domain which Complainant claims is likely part of a malware distribution scheme. The Panel agrees and further finds bad faith per Policy ¶ 4(a)(iii).

 

Finally, Complainant claims that Respondent’s registration of the disputed domain name constitutes typosquatting in bad faith. Typosquatting may act as independent evidence of bad faith per Policy ¶ 4(a)(iii). See Gap Inc. and its subsidiary, Old Navy (Apparel), LLC v. Jiri Capcuch, FA1405001562139 (Forum July 2, 2014) (“Respondent adds an additional letter ‘v’ to Complainant’s OLD NAVY mark in the <oldnavvy.com> domain name, a classic example of typosquatting.  Respondent’s typosquatting is, in itself, evidence of bad faith under Policy ¶ 4(a)(iii).”). Complainant argues that Respondent’s addition of a single letter to the NETFLIX mark for use in the disputed domain name is a clear example of typosquatting. The Panel agrees and finds bad faith per Policy ¶ 4(a)(iii).

 

DECISION

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

 

Accordingly, it is Ordered that the <netlflix.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

Ho Hyun Nahm, Esq., Panelist

Dated:  March 31, 2021

 

 

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