Twitter, Inc. v. Ömer Faruk Kaçmaz
Claim Number: FA2206002001876
Complainant is Twitter, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is Ömer Faruk Kaçmaz (“Respondent”), International.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <twitter-supported.com>, registered with Turkticaret.net Yazilim Hizmetleri Sanayi ve Ticaret A.S..
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.
The Honorable Neil Anthony Brown QC as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 26, 2022; the Forum received payment on June 26, 2022. The Complaint was submitted in English.
On June 27, 2022, Turkticaret.net Yazilim Hizmetleri Sanayi ve Ticaret A.S. confirmed by e-mail to the Forum that the <twitter-supported.com> domain name is registered with Turkticaret.net Yazilim Hizmetleri Sanayi ve Ticaret A.S. and that Respondent is the current registrant of the name. 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 June 28, 2022, the Forum served the Complaint and all Annexes, including a Turkish and English language Written Notice of the Complaint, setting a deadline of July 18, 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-supported.com. Also on June 28, 2022, the Turkish and English language 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 July 22, 2022 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed The Honorable Neil Anthony Brown QC 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 name be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: LANGUAGE OF THE PROCEEDING
UDRP Rule 11(a) provides in effect that the language of the proceeding is the language of the registration agreement relating to the domain name but that the Panel has a discretion to substitute a more appropriate language taking into consideration the particular circumstances of the administrative proceeding.
In this proceeding, the Complainant submits that the proceeding should be conducted in the English language since the disputed domain name resolved to a website entirely in English, the disputed domain name comprises English words and Respondent is using the disputed domain name to target Complainant which is a US company. The Panel agrees that these factors are relevant circumstances to be considered under Complainant’s submission. See FilmNet Inc. v. Onetz, FA 96196 (Forum Feb. 12, 2001) (finding it appropriate to conduct the proceeding in English under Rule 11, despite Korean being designated as the required language in the registration agreement because the respondent submitted a response in English after receiving the complaint in Korean and English). The panel has considered this matter carefully and finds that it is appropriate that the proceeding be conducted in the English language.
A. Complainant
Complainant made the following contentions.
Complainant, Twitter, Inc., is a well-known social media platform. Complainant has rights in the TWITTER mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,619,911 registered May 12, 2009). See Compl. Ex. C. Respondent’s <twitter-supported.com> domain name is virtually identical and confusingly similar to Complainant’s mark because it incorporates the TWITTER mark in its entirety and adds the term “supported”, a hyphen, and the “.com” generic top-level domain (“gTLD”).
Respondent has no legitimate interests in the <twitter-supported.com> domain name. Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed Respondent any rights in the TWITTER mark. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, the disputed domain name currently resolves to an inactive webpage, and formerly resolved to a page that displayed Complainant’s logo in an attempt to pass off Respondent as affiliated with Complainant in conjunction with a phishing scheme.
Respondent registered and uses the <twitter-supported.com> domain name in bad faith. Respondent has previously been involved in UDRP proceedings resulting in the transfer of a domain. Respondent registered the disputed domain name in order to pass itself off as affiliated with Complainant and divert customers for commercial gain. Respondent registered the disputed domain name in order to participate in phishing. The disputed domain name currently resolves to an inactive webpage. Finally, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the TWITTER mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
1. Complainant is a prominent United States company and a well-known social media platform.
2. Complainant has established its rights in the TWITTER mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,619,911 registered May 12, 2009).
3. Respondent registered the <twitter-supported.com> domain name on March 4, 2022.
4. Respondent has caused the disputed domain name to resolve to an inactive webpage, and formerly to have resolved to a page that displayed Complainant’s logo in an attempt to pass itself off Respondent as affiliated with Complainant in conjunction with a phishing scheme.
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 first question that arises is whether Complainant has rights in a trademark or service mark on which it may rely. Complainant submits that it has rights in the TWITTER mark based upon the registration of the mark with the USPTO (e.g., Reg. No. 3,619,911 registered May 12, 2009). See Compl. Ex. C. Registration of a mark with the USPTO is a valid showing of rights in a mark under Policy ¶ 4(a)(i). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”). Since Complainant provides evidence of registration of the TWITTER mark with the USPTO, the Panel finds that the Complainant has rights in the mark under Policy 4(a)(i).
The next question that arises is whether the disputed domain name is identical or confusingly similar to Complainant’s TWITTER mark. Complainant argues Respondent’s <twitter-supported.com> domain name is identical or confusingly similar to Complainant’s TWITTER mark. The addition of a gTLD and a generic term fails to distinguish a disputed domain name sufficiently from a mark per Policy ¶ 4(a)(i). See Ant Small and Micro Financial Services Group Co., Ltd. v. Ant Fin, FA 1759326 (Forum Jan. 2, 2018) (“Respondent’s <antfinancial-investorrelations.com> Domain Name is confusingly similar to Complainant’s ANT FINANCIAL mark. It incorporates the mark entirely. It adds a hyphen, the descriptive terms “investor relations,” and the “.com” gTLD, but these additions are insufficient to distinguish the Domain name from complainant’s mark for the purposes of Policy ¶ 4(a)(i).”). Here, the disputed domain name contains the TWITTER mark in its entirety while adding in the term “supported”, a hyphen, and the “.com” gTLD. Therefore, the Panel finds the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has thus made out the first of the three elements that it must establish.
It is now well established that 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”).
(a) Respondent has chosen to take Complainant’s TWITTER mark and to use it in its domain name adding the word “supported” to the mark;
(b) Respondent registered the domain name on March 4, 2022;
(c) Respondent has caused the disputed domain name to resolve to an inactive webpage, and formerly to have resolved to a page that displayed Complainant’s logo in an attempt to pass itself off Respondent as affiliated with Complainant in conjunction with a phishing scheme;
(d) Respondent has engaged in these activities without the consent or approval of Complainant;
(e) Complainant contends that Respondent lacks rights or legitimate interests in the <twitter-supported.com> domain name since Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed to Respondent any rights in the TWITTER mark. WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name). In addition, a lack of authorization to use a complainant’s mark may also indicate that a respondent is not commonly known by the disputed domain name. See Deutsche Lufthansa AG v. Mohamed elkassaby, FA 1801815 (Forum Sep. 17, 2018) (“The WHOIS lists “Mohamed elkassaby” as registrant of record. Coupled with Complainant’s unrebutted assertions as to absence of any affiliation between the parties, the Panel finds that Respondent is not commonly known by the Domain Name in accordance with Policy ¶ 4(c)(ii).”). The WHOIS information for the disputed domain name lists the registrant as “Ömer Faruk Kaçmaz”. See Registrar Email Verification. Complainant further submits it has not licensed or otherwise authorized Respondent to use Complainant’s TWITTER mark. Therefore, the Panel finds Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii);
(f) Complainant argues that Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or legitimate noncommercial or fair use as the disputed domain name currently resolves to an inactive webpage and Respondent formerly purported to be Complainant through its use of a fraudulent webpage bearing Complainant’s logo. An attempt by a respondent to pass itself off as an affiliate of the complainant under false pretenses may support a finding of failure to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding the respondent did not use the domain name to make a bona fide offering of goods or services per Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii) where the website resolving from the disputed domain name featured the complainant’s mark and various photographs related to the complainant’s business). In addition, where a disputed domain name resolves to an inactive webpage, the Panel may find a failure to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See CrossFirst Bankshares, Inc. v. Yu-Hsien Huang, FA 1785415 (Forum June 6, 2018) (“Complainant demonstrates that Respondent fails to actively use the disputed domain name as it resolves to an inactive website. Therefore, the Panel finds that Respondent fails to actively use the disputed domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii).”). Here, Complainant has provided evidence of similarities between the disputed domain name and Complainant’s webpage, including Respondent’s use of Complainant’s copyrighted logo. See Compl. Ex. F. Complainant also provides evidence that the disputed domain name currently resolves to an inactive webpage. See Compl. Ex. E. Therefore, the Panel finds that Respondent fails to use the disputed domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii);
(g) Complainant alleges that, because Respondent has employed Complainant’s logo to solicit sensitive information from internet users fraudulently, Respondent has engaged in phishing and thus demonstrated its lack of rights or legitimate interest in Complainant’s mark. See Wells Fargo & Co. v. WhoisGuard, FA 1103650 (Forum Dec. 13, 2007) (“There is no dispute that respondent previously used the disputed domain name to obtain personal and financial information from Internet customers of complainant. This fraudulent use [is] known as ‘phishing’”). The impersonation of a complainant in conjunction with a phishing scheme may indicate a lack of rights or legitimate interest in a disputed domain name. See Allianz of Am. Corp. v. Bond, FA 690796 (Forum June 12, 2006) (holding that the respondent’s use of the <allianzcorp.biz> domain name to fraudulently acquire the personal and financial information of Internet users seeking Complainant’s financial services was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(iii)). Here, Complainant has provided evidence of Respondent’s use of Complainant’s logo and other identifying information to solicit personal information on false pretenses. See Compl. Ex. F. As the Panel agrees, the Panel finds that Respondent lacks rights or legitimate interests in the disputed domain name, per Policy ¶ 4(a)(ii).
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 does not have a right or legitimate interest in the disputed domain name.
Complainant has thus made out the second of the three elements that it must establish.
It is clear that to establish bad faith for the purposes of the Policy, Complainant must show that the disputed domain name was registered in bad faith and has been used in bad faith. It is also clear that the criteria set out in Policy ¶ 4(b) for establishing bad faith are not exclusive, but that Complainants in UDRP proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression.
Having regard to those principles, the Panel finds that the disputed domain name was registered and used in bad faith. That is so for the following reasons.
First, Complainant argues Respondent registered and uses the <twitter-supported.com> domain name in bad faith because Respondent previously engaged in bad faith registration of a domain name. Previous findings of bad faith registration of a domain name may be evidence of bad faith under Policy ¶ 4(b)(ii). See Webster Financial Corporation and Webster Bank, National Association v. Above.com Domain Privacy, FA1209001464477 (Forum Nov. 30, 2012) (finding where the record reflected that the respondent had been a respondent in other UDRP proceedings in which it was ordered to transfer disputed domain names to various complainants established a pattern of bad faith registration and use of domain names and stood as evidence of bad faith in the registration and use of domain names under Policy ¶ 4(b)(ii)). Complainant asserts that Respondent has been involved in a previous UDRP proceeding that resulted in the transfer of the domain to Complainant. See Twitter, Inc. v. ömer faruk / Omer Faruk, FA2203001988966 (Forum Apr. 22, 2022). Therefore, the Panel finds that Respondent registered and uses the <twitter-supported.com> domain name in bad faith under Policy ¶ 4(b)(ii).
Secondly, Complainant argues that Respondent registered and uses the <twitter-supported.com> domain name in bad faith because Respondent attempts to pass itself off as Complainant and take advantage of confusion with Complainant’s well-known mark to attract Internet users to its competing website for commercial gain. Use of a disputed domain name to imitate a complainant’s website can be evidence of an attempt to attract users for commercial gain under Policy ¶ 4(b)(iv). See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”). Additionally, use of a domain name that is confusingly similar to a well-known mark can be evidence of a bad faith attempt to attract users for commercial gain under Policy ¶ 4(b)(iv). See Metro. Life Ins. Co. v. Bonds, FA 873143 (Forum Feb. 16, 2007) (“The Panel finds such use to constitute bad faith registration and use pursuant to Policy ¶ 4(b)(iv), because [r]espondent is taking advantage of the confusing similarity between the <metropolitanlife.us> domain name and Complainant’s METLIFE mark in order to profit from the goodwill associated with the mark.”); see also Perot Sys. Corp. v. Perot.net, FA 95312 (Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain). Here, Complainant provides evidence that Respondent formerly used Complainant’s mark and logo at the resolving webpage and contends that Respondent sought to profit from the notoriety of Complainant’s mark. See Compl. Ex. F. As the Panel agrees, the Panel finds that Respondent registered and used the disputed domain name in bad faith per Policy ¶ 4(b)(iv).
Thirdly, Complainant argues that, because the disputed domain name currently resolves to an inactive webpage, Respondent has demonstrated bad faith registration and use. Inactive holding may in and of itself be considered evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See VideoLink, Inc. v. Xantech Corporation, FA1503001608735 (Forum May 12, 2015) (“Failure to actively use a domain name is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”). As previously mentioned, the disputed domain name currently resolves to an inactive webpage. See Compl. Ex. E. As the Panel agrees, the Panel finds that Respondent’s registration and use of the disputed domain name to be in bad faith, pursuant to Policy ¶ 4(a)(iii).
Fourthly, Complainant argues that, because Respondent formerly used the disputed domain name to solicit personal information, Respondent has engaged in phishing and thus demonstrated bad faith registration and use. Phishing may in and of itself be considered evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See Morgan Stanley v. Bruce Pu, FA 1764120 (Forum Feb. 2, 2018) (“[T]he screenshot of the resolving webpage allows users to input their name and email address, which Complainant claims Respondent uses that to fraudulently phish for information. Thus, the Panel agrees that Respondent phishes for information and finds that Respondent does so in bad faith under Policy ¶ 4(a)(iii).”). As previously mentioned, the disputed domain name formerly resolved to a page bearing Complainant’s logo that encouraged users to input sensitive information. See Compl. Ex. F. As the Panel agrees, the Panel finds that Respondent’s registration and use of the disputed domain name to be in bad faith, pursuant to Policy ¶ 4(a)(iii).
Fifthly, Complainant also contends that in light of the fame and notoriety of Complainant's TWITTER mark, it is inconceivable that Respondent could have registered the <twitter-supported.com> domain name without actual and/or constructive knowledge of Complainant's rights in the mark. The Panel here notes that arguments of bad faith based on constructive notice have not resulted in findings of bad faith. See The Way Int'l, Inc. v. Diamond Peters, D2003-0264 (WIPO May 29, 2003) ("As to constructive knowledge, the Panel takes the view that there is no place for such a concept under the Policy."). The Panel agrees with Complainant, however, that Respondent had actual knowledge of Complainant's rights in the mark prior to registering the disputed domain name and finds that actual knowledge is adequate evidence of bad faith under Policy ¶ 4(a)(iii). See 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). In this case, the Panel notes Respondent’s use of Complainant’s logo at the formerly resolving webpage, as well as the notoriety of Complainant’s mark. As the Panel determines that Respondent had actual knowledge of Complainant’s rights in the mark, the Panel finds that Respondent registered the disputed domain name in bad faith per Policy ¶ 4(a)(iii).
Complainant has thus made out the third of the three elements that it must establish.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <twitter-supported.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Neil Anthony Brown QC
Panelist
Dated: July 25, 2022
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