Plex, Inc. v. sagir saifi / My Tv Activation
Claim Number: FA2209002012570
Complainant is Plex, Inc. (“Complainant”), represented by Christopher J Palermo of Baker Botts L.L.P., Texas, USA. Respondent is sagir saifi / My Tv Activation (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <plextv-linke.com>, registered with FastDomain Inc..
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 Forum electronically on September 19, 2022; Forum received payment on September 19, 2022.
On September 19, 2022, FastDomain Inc. confirmed by e-mail to Forum that the <plextv-linke.com> domain name is registered with FastDomain Inc. and that Respondent is the current registrant of the name. FastDomain Inc. has verified that Respondent is bound by the FastDomain Inc. 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 20, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 11, 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@plextv-linke.com. Also on September 20, 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, Forum transmitted to the parties a Notification of Respondent Default.
On October 13, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill 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 name be transferred from Respondent to Complainant.
A. Complainant
Complainant states that it is a leading provider of streaming movies, TV, podcasts, news, and other content, as well as apps, online computer software and online services in the field of consumer digital media management. Complainant provides an array of streaming media, both ad-free and ad supported video on demand, podcasts, and news. Complainant sells, supports, and selectively grants licenses to use or distribute the widely acclaimed Plex apps and Plex Media Server software for Mac, PC, ANDROID, iOS and other various platforms. The basic function of this software is to permit consumers, such as home users of PCs, with a way to organize and view an electronic program guide of all videos that are stored on their home systems, across multiple devices, or that they have viewed or might want to view on external services such as Hulu, Netflix, YouTube, and the like via links. It is possible to create a personal catalog of videos located all over the Web, then play them on any device in the home or using mobile devices. Complainant claims rights in the PLEX mark through its registration in the United States in 2019.
Complainant alleges that the disputed domain name is identical or confusingly similar to its PLEX mark because it wholly incorporates the mark and merely adds a hyphen, the descriptive/generic terms “tv,” “link,” the letter “e” and the “.com” generic top-level domain (“gTLD”).
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use its PLEX mark in any way. Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Instead, Respondent uses the domain to pass itself off as Complainant in furtherance of a phishing scheme. As background, Complainant has implemented technical security measures for its services; to access Complainant’s services, a legitimate customer must provide contact information, pay for the services, receive an activation code, and enter the activation code in an online form. The resolving website displays Complainant’s mark and is structured to induce genuine consumers of Complainant’s services to submit their confidential activation code to Respondent. An actual user complained about being scammed. The resolving website displays a “Disclaimer” stating :“We, ‘plextv-linke.com’ are not ‘Plex’. This website is solely for market research purposes.” This is insufficient to demonstrate rights or legitimate interests in the disputed domain name.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent uses the domain to pass off as Complainant in furtherance of a phishing scheme and by so doing disrupts Complainant’s business and attracts commercial gain for Respondent. Respondent’s usage of a disclaimer does not obviate a finding of bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark PLEX and uses it to provide streaming services.
Complainant’s rights in its mark dates back to 2019.
The disputed domain name was registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving website is used in furtherance of a phishing; it displays Complainant’s mark and refers to Complainant’s services.
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 name incorporates Complainant’s PLEX mark in its entirety and merely adds a hyphen, the generic/descriptive terms “tv,” “link”, the letter “e” and the “.com” gTLD. The addition of hyphens, generic or descriptive terms, letters, and gTLD generally fails to sufficiently distinguish a disputed domain name from a 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 Pirelli & C. S.p.A. v. Tabriz, FA 921798 (Apr. 12, 2007) (finding that the addition of a hyphen between terms of a registered mark did not differentiate the <p-zero.org> domain name from the P ZERO mark under Policy ¶ 4(a)(i)); see also Brooks Sports, Inc. v. chen jiajin, FA 101001930406 (Forum Mar. 30, 2021) (finding that “adding random letters and a gTLD…fails to sufficiently distinguish a disputed domain name); see also Bittrex, Inc. v. Sergey Valerievich Kireev / Kireev, FA 1784651 (Forum June 5, 2018) (holding that the domain name consists of the Complainant’s mark and adds “the letters ‘btc’ and the gTLD .com which do not distinguish the Domain Name from Complainant’s mark.”). Thus the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a respondent is commonly known by a disputed domain name. See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Here, the WHOIS information of record shows that the registrant is known as “sagir saifi”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name within the meaning of Policy ¶ 4(c)(ii).
Respondent uses the disputed domain name to phish for user’s information. Specifically, Complainant presents evidence showing that the resolving website displays Complainant’s mark and is structured to induce genuine consumers of Complainant’s services to submit their confidential activation code to Respondent; an actual user complained about being scammed. Use of a domain name in a phishing scheme is not a bona fide offering of goods or services per Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use of a domain name per Policy ¶ 4(c)(iii). See 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 the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offer of goods or services, or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) and 4(c)(iii)).
Complainant alleges that the resolving website displays a disclaimer stating: “We, ‘plextv-linke.com’ are not ‘Plex’. This website is solely for market research purposes.” However, Complainant does not present any evidence to support that allegation. Be that as it may, past Panels have noted that a disclaimer is not sufficient to avoid a finding that a respondent lacks rights or legitimate interests in a disputed domain name. See Google Inc. v. Domain Admin / Whois Privacy Corp, FA 1726692 (Forum May 16, 2017) (finding that the mere existence of a disclaimer on a webpage is not sufficient to confer rights and legitimate interests in a disputed domain name); see also Coachella Music Festival, LLC v. Beaudoin, Denis / Denis Beaudoin, FA 1724063 (Forum May 9, 2017) (finding respondent’s disclaimer insufficient because “[t]he disclaimer is in small print, although it can be read, and it is in a position at the bottom of each page where it may well be overlooked and in any event it comes after the services offered on each page of the site… [t]he result is that each page starts with Complainant’s unique stylized trademark and ends with a less than prominent or effective disclaimer.”).
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 name.
Indeed, as already noted, Respondent uses the disputed domain name in furtherance of a phishing scheme. Using an infringing domain in furtherance of a phishing scheme may demonstrate bad faith under Policy ¶ 4(a)(iii). See Wells Fargo & Co. v. Maniac State, FA 608239 (Forum Jan. 19, 2006) (finding bad faith registration and use where the respondent was using the <wellsbankupdate.com> domain name in order to fraudulently acquire the personal and financial information of the complainant’s customers); see also Hess Corp. v. GR, FA 770909 (Forum Sept. 19, 2006) (finding that the respondent demonstrated bad faith registration and use because it was attempting to acquire the personal and financial information of Internet users through a confusingly similar domain name). Thus the Panel finds bad faith registration and use under Policy ¶ 4(a)(iii).
Also as already noted, Complainant alleges that there is a disclaimer on the resolving website, but does not present evidence to support that allegation. Be that as it may, previous Panels have held that use of a disclaimer on a disputed domain does not mitigate a finding of bad faith. See Auxilium Pharm., Inc. v. Patel, FA 642141 (Forum Apr. 6, 2006) (“Respondent’s use of a disclaimer on its website does not mitigate evidence of bad faith registration and use under Policy ¶ 4(a)(iii).”).
Finally, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the resolving website displays Complainant’s mark and refers to Complainant’s services. 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).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <plextv-linke.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: October 13, 2022
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