Twitter, Inc. v. Dex Software / Murtaza Dalcı
Claim Number: FA2204001993522
Complainant is Twitter, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is Dex Software / Murtaza Dalcı (“Respondent”), International.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names listed in the Complaint are <twitter-privacy.com>, <twitter-services.com>, and <twitter-supported.com>, registered with Turkticaret.Net Yazilim Hizmetleri Sanayi Ve Ticaret A.S..
For the reasons given below, the Panel finds that the only relevant domain names for this case are <twitter-privacy.com> and <twitter-services.com>.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 22, 2022; the Forum received payment on April 22, 2022.
On May 24, 2022, Turkticaret.Net Yazilim Hizmetleri Sanayi Ve Ticaret A.S. confirmed by e-mail to the Forum that the <twitter-privacy.com>, <twitter-services.com>, and <twitter-supported.com> domain names are registered with Turkticaret.Net Yazilim Hizmetleri Sanayi Ve Ticaret A.S. and that Respondent is the current registrant of the names. Turkticaret.Net Yazilim Hizmetleri Sanayi Ve Ticaret A.S. has verified that Respondent is bound by the Turkticaret.Net Yazilim Hizmetleri Sanayi Ve Ticaret A.S. 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 May 25, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 14, 2022 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@twitter-privacy.com, postmaster@twitter-services.com, postmaster@twitter-supported.com. Also on May 25, 2022, 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 June 23, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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.
PRELIMINARY ISSUE: MULTIPLE RESPONDENTS
In the instant proceedings, Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. In support of this allegation it states:
a) All the disputed domain names have the same structure, that is the combination of the term “TWITTER” with a hyphen, a generic term, and the generic top-level domain (“gTLD”) “.com.”
b) The disputed domain names were registered within five days of each other and all have the same registrar, Turkticaret.net.
c) All the nominal registrants are located in Turkey.
d) All the nominal registrants use gmail.com email addresses.
e) The nominal registrants for the <twitter-privacy.com> and <twitter-services.com> domain names have the same street address listed.
f) The <twitter-privacy.com> and <twitter-services.com> domain names resolved to substantially identical content displaying Complainant’s mark and distinctive logo.
g) The <twitter-services.com> and <twitter-supported.com> domain names use the same host, Hostinger.
h) The first two names of the nominal registrant of the <twitter-supported.com> domain name, Ömer Faruk, matches the name of the registrant in Twitter, Inc. v. ömer faruk / Omer Faruk, FA2203001988966 (Forum Apr. 22, 2022) and the first two names of the nominal registrant, Ömer faruk Üzer, in Twitter, Inc. v. ahmet baran / salih yayla / ahmet şimşek / handan topaç / orhan sazan / huseyin taşşak / soner camlı / burhan kor / Güven turna / Ömer faruk üzer / burhan torun, FA2204001991016 (Forum May 3, 2022), in both of which the respondent had been found to use multiple aliases and register multiple disputed domain names.
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 Panel finds that allegations (a), (b), (c), (d), and (g) above do not necessarily indicate that the domain names are under common control. Allegations (e) and (f), which are supported by evidence, provide sufficient evidence to find that the <twitter-privacy.com> and <twitter-services.com> domain names were registered by the same person or entity.
The Panel finds that Complainant has not presented sufficient evidence to find that the <twitter-supported.com> domain name was registered by the same person or entity.
Under the Forum’s Supplemental Rule 4(c), the Panel must determine which domain names are commonly owned and elect which Respondent to proceed against, as a UDRP decision can proceed against only one Respondent. The Panel is then required to dismiss the Complaint in relation to the domain names not commonly owned by the chosen Respondent.
Accordingly, the Panel will rule only on the <twitter-privacy.com> and <twitter-services.com> domain names, and it will dismiss, without prejudice, the complaint regarding the <twitter-supported.com> domain name. See Brian Renner v. Contactprivacy.com, FA1007001335211 (Forum Aug. 26, 2010); see also Amazon Technologies, Inc. v. M M / shanwang chen / feifei lin / HUA ZHANG / L H / Eddie Nash / Heather Brooker, FA2111001973471 (Forum Dec. 17, 2021).
A. Complainant
Complainant states that it offers social media services. Founded in 2006, and headquartered in San Francisco, California, Complainant operates a real-time global information network that allows the public to discover what is happening in the world and what people are talking about, share information and news, and connect to anyone, anywhere in real time. Complainant’s service allows users to consume, create, distribute, and discover content via short messages popularly known as “Tweets.” Each Tweet can contain text and rich media, including pictures, videos, and applications. Complainant’s service can be accessed at <twitter.com> and on a variety of mobile devices. As of October 2021, Complainant had more than 200 million daily active users. According to Alexa, <twitter.com> website traffic ranks in the top 20 for the US and globally. Complainant asserts rights in the TWITTER mark based upon its registration in the United States in 2009. The mark is registered elsewhere around the world and it is famous.
Complainant alleges that the disputed domain names are confusingly similar to its TWITTER mark because they contain the mark in its entirety, merely adding a hyphen and a descriptive/generic term (“privacy” or “services”) and the gTLD “.com”.
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain names. Respondent is not licensed or authorized to use Complainant’s TWITTER mark and is not commonly known by the disputed domain names. Respondent does not use the disputed domain names for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, the disputed domain names either resolved to substantially identical pages displaying Complainant’s mark and distinctive logo, or do not resolve, or resolve to page warning that they may be used for phishing. Respondent attempted to pass off as Complainant to phish for users’ personal information.
Further, says Complainant, Respondent registered and uses the disputed domain names in bad faith. The disputed domain names either resolved to substantially identical pages displaying Complainant’s mark and distinctive logo, or do not resolve, or resolve to page warning that they may be used for phishing. Respondent attempted to pass off as Complainant and to phish for users’ personal information. Respondent registered the disputed domain names with actual knowledge of Complainant’s rights in the TWITTER mark. Respondent registered the disputed domain names using false WHOIS information.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark TWITTER and uses it to operate a social networking service. The mark is famous.
Complainant’s rights in its mark date back to at least 2009.
The disputed domain names were registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain names resolved to substantially identical pages displaying Complainant’s mark and distinctive logo. Subsequently, the disputed domain names either did not resolve, or resolved to a page warning that they might be used for phishing.
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”).
The disputed domain names incorporate Complainant’s TWITTER mark in its entirety, merely adding a hyphen, a generic/descriptive term (“privacy” or “support), and the gTLD “.com”. The addition of hyphens, generic or descriptive terms, and gTLDs to a mark does not distinguish the disputed domain name from the mark incorporated therein per Policy ¶ 4(a)(i). See Skechers U.S.A., Inc. and Skechers U.S.A., Inc. II v. Svensson Viljae, FA 1784650 (Forum June 1, 2018) (finding confusing similarity where “[t]he disputed domain name <skechers-outlet.com> adds a hyphen and the generic term ‘outlet’ to Complainant's registered SKECHERS mark, and appends the ‘.com’ top-level domain.”); see also Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognizable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”); see also Chernow Commc’ns, Inc. v. Kimball, D2000-0119 (WIPO May 18, 2000) (holding “that the use or absence of punctuation marks, such as hyphens, does not alter the fact that a name is identical to a mark"). Therefore the Panel finds that the disputed domain names are confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent and is not commonly known by the disputed domain names: under Policy ¶ 4(c)(ii) WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). Here, the WHOIS information for the disputed domain name lists the registrant as “Dex Software / Murtaza Dalcı”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
The disputed domain names resolved to substantially identical pages displaying Complainant’s mark and distinctive logo. This was an attempt to pass off as Complainant and does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Microsoft Corp. v. lijiuliang, FA0912001300266 (Forum Feb. 11, 2010) (“Respondent’s attempt to pass itself off as Complainant by imitating Complainant’s official website … is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)”); see also Nike, Inc. v. Dias, FA0211000135016 (Forum Jan. 7, 2002) (finding no bona fide offering of goods or services where respondent used complainant’s mark without authorization to attract Internet users to its website). Thus the Panel finds that Respondent failed to use the disputed domain names to make a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii).
Subsequently, the disputed domain names either did not resolve, or resolved to a page warning that they might be used for phishing. Neither case constitutes 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). See George Weston Bakeries Inc. v. McBroom, FA 933276 (Forum Apr. 25, 2007) (finding that the respondent had no rights or legitimate interests in a domain name under either Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii) where it failed to make any active use of the domain name); see also Enterprise Holdings, Inc. v. I S / Internet Consulting Services Inc., FA 1785242 (Forum June 5, 2018) (“On its face, the use of a domain name that is confusingly similar to the mark of another in order to facilitate a phishing scheme cannot be described as either 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).”). Thus, on this ground also, the Panel finds that Respondent fails to use the disputed domain names to make 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).
And, for all the above reasons, the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain names.
Indeed, as already noted, Respondent used the disputed domain name to pass off as Complainant or phish for users’ information. Use of a disputed domain name to pass off as a complainant or to engage in phishing is evidence of bad faith disruption of a complainant’s business under Policy ¶ 4(b)(iii) and an attempt to attract users for commercial gain under Policy ¶ 4(b)(iv), as well as bad faith under Policy ¶ 4(a)(iii). See Carey Int’l, Inc. v. Kogan, FA 486191 (Forum July 29, 2005) (“[T]he Panel finds that Respondent is capitalizing on the confusing similarity of its domain names to benefit from the valuable goodwill that Complainant has established in its marks. Consequently, it is found that Respondent registered and used the domain names in bad faith”); see also Fossil, Inc. v. www.fossil-watch.org c/o Host Master, FA 335513 (Forum Nov. 9, 2004) (“Respondent’s use of the disputed domain name to pass itself off as Complainant is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii)”); see also Eastman Chemical Company v. Lukas Moris, FA 1956649 (Forum Aug. 23, 2021) (“Complainant first argues Respondent registered and uses the disputed domain name in bad faith because Respondent uses the disputed domain name to impersonate Complainant in furtherance of a phishing scheme. A domain name that is used in connection with a phishing scheme over email may be evidence of a domain name registered and used in bad faith under Policy ¶¶ 4(b)(iii) and (iv).”); see also Google Inc. v. Domain Admin / Whois Privacy Corp., FA1506001622862 (Forum Aug. 10, 2015) (finding that the respondent’s apparent use of the disputed domain name in furtherance of a ‘phishing’ scheme further established its bad faith registration and use of the disputed domain name under Policy ¶ 4(a)(iii)). Therefore the Panel finds bad faith registration and use under Policy ¶¶ 4(b)(iii) and (iv), and 4(a)(iii).
Also as already noted, during some periods of time the disputed domain names were not being used. According to paragraph 3.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (WIPO Jurisprudential Overview 3.0): “From the inception of the UDRP, panelists have found that the non-use of a domain name (including a blank or “coming soon” page) would not prevent a finding of bad faith under the doctrine of passive holding. While panelists will look at the totality of the circumstances in each case, factors that have been considered relevant in applying the passive holding doctrine include: (i) the degree of distinctiveness or reputation of the complainant’s mark, (ii) the failure of the respondent to submit a response or to provide any evidence of actual or contemplated good-faith use, (iii) the respondent’s concealing its identity or use of false contact details (noted to be in breach of its registration agreement), and (iv) the implausibility of any good faith use to which the domain name may be put.”
In the present case, Complainant’s trademark is famous. It is difficult to envisage any use of the disputed domain name that would not violate the Policy, see Morgan Stanley v. TONY / shentony, FA 1637186 (Forum Oct. 10, 2015) (“Respondent registered the disputed domain name [MORGANSTANLEY.ONLINE] in bad faith because . . . it is difficult to envisage any use of the disputed domain name that would not violate the Policy”); see also Singapore Airlines Ltd. v. European Travel Network, D2000-0641 (WIPO Aug. 29, 2000) (where selection of disputed domain name is so obviously connected to complainant’s well-known trademark, use by someone with no connection with complainant suggests opportunistic bad faith); see also Starwood Hotels & Resorts Worldwide, Inc., Sheraton Int’l IP, LLC, Westin Hotel Mgmt., L.P. v. Jingjing Tang, D2014-1040 (WIPO Aug. 19, 2014) (“The Panel finds that the [WESTIN] Marks are not such that could legitimately be adopted by traders other than for the purpose of creating an impression of an association with Complainant. Thus, the Panel concludes that the disputed domain names were registered in bad faith”).
There has been no response to the Complaint and Respondent used a privacy service, that is, it attempted to conceal its identity. Given these circumstances, the Panel finds that, in this particular case, a finding of bad faith use can be inferred even though the disputed domain name is not being actively used. See Telstra Corporation Limited v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000).
Finally, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: at one time the resolving websites displayed Complainant’s mark and distinctive logo. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); see also 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). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes bad faith under Policy ¶ 4(a)(iii).
The Panel dismisses, without prejudice, the Complaint against the <twitter-supported.com> domain name.
Having established all three elements required under the ICANN Policy for the <twitter-privacy.com> and <twitter-services.com> domain names the Panel concludes that relief shall be GRANTED for those domain names.
Accordingly, it is Ordered that the <twitter-privacy.com> and <twitter-services.com> domain names be TRANSFERRED from Respondent to Complainant and that the <twitter-supported.com> domain name REMAIN WITH Respondent.
Richard Hill, Panelist
Dated: June 23, 2022
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