Licensing IP International S.à.r.l. v. Domain Admin / Whois Privacy Corp.
Claim Number: FA2112001978916
Complainant is Licensing IP International S.à.r.l. ("Complainant"), Luxembourg, represented by ROBIC, LLP, Canada. Respondent is Domain Admin / Whois Privacy Corp. ("Respondent"), Bahamas.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <brazzers-tv.vip>, <brazzers-tv.net>, and <brazzers-tv.me>, registered with Key-Systems, LLC; Internet Domain Service BS Corp.; and TLD Registrar Solutions Ltd., respectively.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 31, 2021; the Forum received payment on December 31, 2021.
On January 5, 2022, Key-Systems, LLC confirmed by email to the Forum that the <brazzers-tv.vip> domain name is registered with Key-Systems, LLC and that Respondent is the current registrant of the name. Key-Systems, LLC has verified that Respondent is bound by the Key-Systems, 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"). Equivalent confirmations were received on January 5, 2022, from Internet Domain Service BS Corp. concerning the registration of the <brazzers-tv.net> domain name and on January 12, 2022, from TLD Registrar Solutions Ltd. concerning the registration of the <brazzers-tv.me> domain name.
On January 17, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 7, 2022 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registrations as technical, administrative, and billing contacts, and to postmaster@brazzers-tv.vip, postmaster@brazzers-tv.net, postmaster@brazzers-tv.me. Also on January 17, 2022, the Written Notice of the Complaint, notifying Respondent of the email 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 registrations as technical, administrative, and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On February 14, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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.
Complainant alleges that the disputed domain names are under common control. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") provides that a "complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder."
The three disputed domain names are all registered to Domain Admin / Whois Privacy Corp., with the same physical address and telephone number and nearly identical email addresses. They were registered through what appear to be related registrars; they share the same nameservers; and they are being used to direct traffic to the same website. Neither Respondent nor any beneficial registrants whom it may represent has come forward to deny that the domain names are under common control or to object to the inclusion of all three domain names in a single proceeding under the Policy. Accordingly, the Panel considers it appropriate to treat the disputed domain names as being under the control of a single person or entity. See BBY Solutions, Inc. v. VMI INC / Domain Customer 28253 / Whois Protection Service LTD, FA 1980281 (Forum Feb. 14, 2022).
A. Complainant
Complainant, a Luxembourg corporation, operates various websites that aggregate adult video content, including BRAZZERS.com. According to Alexa Internet traffic analysis data, BRAZZERS.com has ranked among the top 1000 websites worldwide by overall visitors and pageviews twice within the past five years. Complainant also cites Google Analytics data indicating that the BRAZZERS.com website had approximately 820,000 to 1.39 million daily users in 2019. Complainant owns trademark registrations for BRAZZERS and related marks in the United States, Canada, the European Union, and other jurisdictions, in both standard character form and otherwise, with registration dates as early as 2008.
The disputed domain names <brazzers-tv.vip> and <brazzers-tv.me> were both registered on September 18, 2020; the other disputed domain name, <brazzers-tv.net>, was registered on August 7, 2021. Complainant states that the <brazzers-tv.vip> and <brazzers-tv.me> domain names are configured to redirect traffic to the website at <brazzers-tv.net>, a Russian-language website that displays and offers what Complainant asserts are pirated copies of its own "premium content videos," along with advertising links that generate revenue for Respondent. (The Panel notes that all three domain names now appear to redirect users to a similar website at <brazzers-tv.biz>, a domain name that was registered shortly after the commencement of this proceeding.) Complainant states further that Respondent is not commonly known by the disputed domain names and has not been authorized to use Complainant's marks.
Complainant contends on the above grounds that each of the disputed domain names <brazzers-tv.vip>, <brazzers-tv.net>, and <brazzers-tv.me> is confusingly similar to its BRAZZERS mark; that Respondent lacks rights or legitimate interests in the disputed domain names; and that the disputed domain name were registered and are being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that each of the disputed domain names is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain names; and that the disputed domain names were registered and are being used 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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
Each of the disputed domain names <brazzers-tv.vip>, <brazzers-tv.net>, and <brazzers-tv.me> incorporates Complainant's registered BRAZZERS trademark, adding a hyphen and the generic term "tv," and appending a top-level domain. These additions do not substantially diminish the similarity between the domain names and Complainant's mark. See, e.g., Licensing IP International S.à.r.l. v. Domain Admin / Whois Privacy Corp., FA 1915715 (Forum Nov. 23, 2020) (finding <brazzers-tv.club> and <brazzers-tv.info> confusingly similar to BRAZZERS). The Panel considers each of the disputed domain names to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain names, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain names all incorporate Complainant's registered mark without authorization, and they are being used to distribute infringing copies of Complainant's intellectual property for Respondent's commercial gain. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Licensing IP International S.à.r.l. v. Domain Admin / Whois Privacy Corp., FA 1915715, supra (finding lack of rights or interests in similar circumstances).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain names.
Finally, Complainant must show that the disputed domain names were registered and are being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered a domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
The disputed domain names incorporate Complainant's mark; were registered in the name of a privacy registration service; and are being used to distribute infringing copies of Complainant's intellectual property for Respondent's commercial gain. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., Licensing IP International S.à.r.l. v. Domain Admin / Whois Privacy Corp., FA 1915715, supra (finding lack of rights or interests in similar circumstances). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <brazzers-tv.vip>, <brazzers-tv.net>, and <brazzers-tv.me> domain names be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: February 15, 2022
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