Twitter, Inc. v. umut / Kaan Yavuz / Kaan Yavuz
Claim Number: FA2209002010687
Complainant is Twitter, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is umut / Kaan Yavuz / Kaan Yavuz (“Respondent”), Turkey.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <twitterhelp-support.com>, <twitterhelps-support.com>, <twitterhelpreports.com> and <twitterhelpreporter.com> (“Domain Names”), registered with Google LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Nicholas J.T. Smith as Panelist.
Complainant submitted a Complaint to Forum electronically on September 1, 2022; Forum received payment on September 1, 2022.
On September 07, 2022, Google LLC confirmed by e-mail to Forum that the <twitterhelp-support.com>, <twitterhelps-support.com>, <twitterhelpreports.com> and <twitterhelpreporter.com> domain names are registered with Google LLC and that Respondent is the current registrant of the names. Google LLC has verified that Respondent is bound by the Google 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 September 8, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 28, 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@twitterhelp-support.com, postmaster@twitterhelps-support.com, postmaster@twitterhelpreports.com, and postmaster@twitterhelpreporter.com. Also on September 8, 2022, the German 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, Forum transmitted to the parties a Notification of Respondent Default.
On October 10, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Nicholas J.T. Smith as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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.
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. 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.”
Complainant contends that the registrants for the Domain Names are related because the Domain Names are similar, each containing the initial word “twitterhelp”. Each of the Domain Names was registered with the same Registrar, all the named registrants are located in Turkey and have @gmail.com e-mail address. All the Domain Names are presently inactive but prior to the commencement of the proceeding resolved to the same website (the “Respondent’s Website”). This evidence, in the Panel’s opinion, strongly suggests that the Domain Names are owned/controlled by a single Respondent; were the named Respondents unrelated, it would be unlikely that two unconnected entities would register four similar domain names targeted at the same entity and point them to the same website.
In light of these contentions, which none of the identified Respondents deny, the Panel concludes that, on the balance of probabilities, the Domain Names are commonly owned/controlled by a single Respondent who is using multiple aliases. Hereafter the single Respondent will be referred to as “Respondent” in this Decision.
The language of the registration agreements for two of the four the Domain Names is German (it is English for the remaining two Domain Names). The Complaint has been filed in English and Complainant requests that pursuant to UDRP Rule 11(a) the language of the proceeding be English.
It is established practice to take UDRP Rules 10(b) and (c) into consideration for the purpose of determining the language of the proceeding to ensure fairness and justice to both parties. Factors which previous panels have seen as particularly compelling are: WHOIS information which establishes Respondent in a country which would demonstrate familiarity with the English language, filing of a trademark registration with an entity which shows an understanding of the English language, and any evidence (or lack thereof) exhibiting Respondent’s understanding of the language requested by Complainant. See The Argento Wine Company Limited v. Argento Beijing Trading Company, D2009-0610 (WIPO July 1, 2009) (panel exercising discretion in deciding that the language of the proceedings advance in English, contrary to the Registration Agreement, based on evidence that respondent has command of the language). Further, the Panel may weigh the relative time and expense in enforcing the German language agreement, which would result in prejudice toward either party. See Finter Bank Zurich v. Shumin Peng, D2006-0432 (WIPO June 12, 2006) (deciding that the proceeding should be in English, stating, “It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her ability to articulate the arguments for the case.”) and Zappos.com, Inc. v. Zufu aka Huahaotrade, Case No. D2008-1191 (WIPO October 15, 2008) (holding that proceedings could be conducted in English even though the registration agreement was in Chinese where “the disputed domain resolves to a website [that] is exclusively in English, from which can be reasonably presumed that the Respondent has the ability to communicate in English in order to conduct his business over the website in English”)
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language. The Respondent has registered two of the Domain Names using an English-language agreement. The Domain Names consist of English words and have resolved to a website which is entirely in English.
After considering the circumstances of the present case, including the material referred to above indicating that the Respondent is likely to be able to communicate in English, and noting that the Respondent has not made any request that the proceeding continue in German, the Panel decides that the proceeding should be continued in the English language.
A. Complainant
Complainant, Twitter, Inc., operates a global platform which allows its millions of users to create, send, and view information. Complainant has rights in the TWITTER mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,619,911, registered May. 12, 2009). The Domain Names are confusingly similar to Complainant’s mark because Respondent has incorporated the entire mark and added descriptive terms, a hyphen in two of the domains, and the “.com” generic top-level domain (“gTLD”).
Respondent does not have rights or legitimate interests in the Domain Names because Respondent is not commonly known by the Domain Names and is not authorized to use Complainant’s TWITTER mark. Additionally, Respondent fails to use the Domain Names in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use because the Domain Names are presently inactive but prior to the commencement of proceedings Respondent used the Domain Names to pass off as Complainant in furtherance of a phishing scheme, creating a false impression of affiliation with Complainant.
Respondent has registered and uses the Domain Names in bad by attempting to impersonate Complainant in furtherance of a phishing scheme. In addition, Respondent has a pattern of bad faith registrations. Finally, Respondent had actual knowledge of Complainant’s rights in the TWITTER mark prior to registering the Domain Names due to the long-standing use and fame of the mark and the use of the Domain Names to impersonate Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the TWITTER mark. Each of the Domain Names is confusingly similar to Complainant’s TWITTER mark. Complainant has established that Respondent lacks rights or legitimate interests in the Domain Names and that Respondent registered and has used the Domain Names 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 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”).
Complainant has rights in the TWITTER mark based upon registration of the mark with the USPTO (e.g., Reg. No. 3,619,911, registered May 12, 2009). Registration of a mark with the USPTO is sufficient to establish rights in that mark. See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (stating, “Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”).
The Panel finds that the <twitterhelp-support.com>, <twitterhelps-support.com>, <twitterhelpreports.com> and <twitterhelpreporter.com> domain names are confusing similar to Complainant’s TWITTER mark as they each wholly incorporate the TWITTER mark and add (in some cases) a hyphen, descriptive words such as “help” and “support” and a gTLD. Registration of a domain name that incorporates a complainant’s mark and adds a hyphen, a generic term and a gTLD does not distinguish the domain name from the mark per Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy); see also ADP, LLC. v. Ella Magal, FA 1773958 (Forum Aug, 2, 2017) (“Respondent’s <workforce-now.com> domain name appropriates the dominant portion of Complainant’s ADP WORKFORCE NOW mark and adds a hyphen and the gTLD “.com.” These changes do not sufficiently distinguish the disputed domain name from the ADP WORKFORCE NOW mark.”) see also Dell Inc. v. Protection of Private Person / Privacy Protection, FA 1681432 (Forum Aug. 1, 2016) (“A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶ 4(a)(i) analysis because the domain name syntax requires TLDs.”).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the Domain Names. In order for Complainant to succeed under this element, it must first make a prima facie case that Respondent lacks rights and legitimate interests in the Domain Names under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) and AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”). The Panel holds that Complainant has made out a prima facie case.
Complainant asserts that Respondent has no rights or legitimate interests in the Domain Names as Respondent is not commonly known by the Domain Names, nor has Complainant authorized Respondent to use the TWITTER mark. Respondent has no relationship, affiliation, connection, endorsement or association with Complainant. WHOIS information can help support a finding that a respondent is not commonly known by the disputed domain name, especially where a privacy service has been engaged. 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)); see also Kohler Co. v. Privacy Service, FA1505001621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where “Privacy Service” was listed as the registrant of the disputed domain name). The WHOIS lists “umut / Kaan Yavuz / Kaan Yavuz” as registrant of record. Coupled with Complainant’s unrebutted assertions as to absence of any affiliation or authorization between the parties, the Panel finds that Respondent is not commonly known by the Domain Names in accordance with Policy ¶ 4(c)(ii).
The Domain Names are presently inactive which by itself does not show a bona fide offering of goods and services. Complainant alleges, and provides evidence supporting its allegations, that Respondent has used the Domain Names to resolve to the Respondent’s Website, which facilitates a phishing scam in which users of the Complainant’s service are directed to the Respondent’s Website, which contains a fake notification that copyright infringement had been detected in their Twitter account and invites the users to click on a link connected to the Domain Name to resolve the matter, presumably to provide their account password or other identifying details. Such conduct is best characterized as “phishing”. Respondent’s use of the Domain Names to support a scheme to impersonate Complainant for the purpose of engaging in a phishing scheme is not a bona fide offering of goods or services or a legitimate non-commercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Bittrex, Inc. v. Caroline Alves Maia, FA 1796113 (Forum Aug. 6, 2018) (finding the respondent lacked rights and legitimate interests in the domain name because it used the name to resolve to a website virtually identical to the complainant’s to prompt users to enter their login information so that the respondent may gain access to that customer’s cryptocurrency account); see also Caterpillar Inc. v. ruth weinstein, FA 1770352 (Forum Mar. 7, 2018) (“Use of a disputed domain name in an attempt to pass itself off as a complainant and to conduct a phishing scheme is indicative of a failure to use said domain name in connection with a bona fide offer of goods and services per Policy ¶ 4(c)(i) or a legitimate non-commercial or otherwise fair use per Policy ¶ 4(c)(iii).”);
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
The Panel finds that, at the time Respondent registered the Domain Names, between February and April 2022, Respondent had actual knowledge of Complainant’s TWITTER mark. The Respondent has used the Domain Names to pass itself off as Complainant for financial gain. In the absence of rights or legitimate interests of its own, this demonstrates registration in bad faith under Policy ¶ 4(a)(iii).
The Panel finds that Respondent registered and uses the Domain Names in bad faith as Respondent has used the Domain Names to impersonate Complainant in furtherance of a phishing scheme. Use of a disputed domain name to impersonate a complainant in furtherance of a phishing scheme is evidence of bad faith per Policy ¶ 4(a)(iii). See 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)). Accordingly, the Panel finds that Respondent registered and uses the Domain Names in bad faith pursuant to Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <twitterhelp-support.com>, <twitterhelps-support.com>, <twitterhelpreports.com> and <twitterhelpreporter.com> domain names be TRANSFERRED from Respondent to Complainant.
Nicholas J.T. Smith, Panelist
Dated: October 11, 2022
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