Amy Schumer and Muffin Schumer, Inc. v. Domain Administrator
Claim Number: FA2209002013356
Complainant is Amy Schumer and Muffin Schumer, Inc. (“Complainant”), represented by David J. Steele of Tucker Ellis, LLP, California. Respondent is Domain Administrator (“Respondent”), NG.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <anyschumer.com>, registered with Sav.com, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to Forum electronically on September 26, 2022; Forum received payment on September 26, 2022.
On September 27, 2022, Sav.com, LLC confirmed by e-mail to Forum that the <anyschumer.com> domain name is registered with Sav.com, LLC and that Respondent is the current registrant of the name. Sav.com, LLC has verified that Respondent is bound by the Sav.com, 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 27, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 17, 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@anyschumer.com. Also on September 27, 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 20, 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 she is a world-renowned comedian, actress, screen writer, and author. She is the creator, co-producer, co-writer and star of the sketch comedy series Inside Amy Schumer (for which she won a Peabody Award), the author of the comedy film Trainwreck (for which she won the Writers Guild of America Award for Best Original Screenplay and the Golden Globe Award for Best Actress – Motion Picture Comedy or Musical), the executive producer and star of the American cooking show Amy Schumer Learns to Cook (which was nominated for a Primetime Emmy Award), a standup comedian (her comedy special Amy Schumer: Live at the Apollo was featured on HBO and she was nominated for three Primetime Emmy Awards for Outstanding Variety Special, Writing and Directing for her work), and the author of The Girl with the Lower Back Tattoo (a New York Times’ Best Seller), to list only a few of her many accomplishments. In 2015 Complainant was named one of Time magazine’s 100 Most Influential People and was also named to Barbara Walters’ 10 Most Fascinating People list. Complainant has been featured in countless magazines and has graced numerous magazine covers. Complainant’s Facebook account is followed by 2.7 million people, and her Twitter account is followed by 4.6 million people. Complainant also operates an extensive website, available at <amyschumer.com>, where she connects directly with fans, provides information about her upcoming live shows, movies and television events, and sells her book as well other AMY SCHUMER branded merchandise. Complainant has been performing professionally since at least as early as 2004, including at comedy clubs such as the Gotham Comedy Club in New York City and at other venues. Complainant claims trademark rights in the mark AMY SCHUMER through its registration in the United States in 2018.
Complainant alleges that the disputed domain name is identical or confusingly similar to its mark because it consists of a simple misspelling of the mark (the first “m” is replaced with an “n”) with the mere addition of the “.com” generic top level domain (gTLD). Complainant cites UDRP cases to support its position.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name as Complainant has not authorized Respondent to use its mark and Respondent is not commonly known by the disputed domain name. Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or legitimate or noncommercial or fair use. Instead, the disputed domain name resolves to a parked page containing advertising hyperlinks to products and services not related to Complainant. Complainant cites UDRP cases to support its position.
Further, says Complainant, Respondent registered and is using the disputed domain name in bad faith. The resolving webpage displays advertising links to unrelated products and services. Respondent had actual knowledge of Complainant’s rights in the AMY SCHUMER mark. Complainant cites UDRP cases to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Preliminary Issue: Multiple Complainants
Paragraph 3(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that “[a]ny person or entity may initiate an administrative proceeding by submitting a complaint.” The Forum’s Supplemental Rule 1(e) defines “The Party Initiating a Complaint Concerning a Domain Name Registration” as a “single person or entity claiming to have rights in the domain name, or multiple persons or entities who have a sufficient nexus who can each claim to have rights to all domain names listed in the Complaint.”
There are two Complainants in this matter: Amy Schumer and Muffin Schumer, Inc.. Complainants argue that Muffin Schumer, Inc. is the closely held loan-out corporation that Ms Amy Schumer (a world-renowned comedian, actress, screen writer, and author) uses in connection with certain of her commercial activities; Amy Schumer is Muffin Schumer, Inc.’s President. Muffin Schumer, Inc. exercises its rights to the AMY SCHUMER mark under the direction and control of Ms. Schumer.
Previous panels have interpreted the Forum’s Supplemental Rule 1(e) to allow multiple parties to proceed as one party where they can show a sufficient link to each other. For example, in Vancouver Org. Comm. for the 2010 Olympic and Paralymic Games & Int’l Olympic Comm. v. Malik, FA 666119 (Forum May 12, 2006), the panel stated:
It has been accepted that it is permissible for two complainants to submit a single complaint if they can demonstrate a link between the two entities such as a relationship involving a license, a partnership or an affiliation that would establish the reason for the parties bringing the complaint as one entity.
In Tasty Baking, Co. & Tastykake Invs., Inc. v. Quality Hosting, FA 208854 (Forum Dec. 28, 2003), the panel treated the two complainants as a single entity where both parties held rights in trademarks contained within the disputed domain names. Likewise, in Am. Family Health Srvs. Group, LLC v. Logan, FA 220049 (Forum Feb. 6, 2004), the panel found a sufficient link between the complainants where there was a license between the parties regarding use of the TOUGHLOVE mark.
The Panel finds that the evidence in the Complaint is sufficient to establish a sufficient nexus or link between the Complainants, and thus it will treat them as a single entity in this proceeding.
Complainant owns the mark AMY SCHUMER and uses it in connection with her business as a performer and to sell books as well other branded merchandise.
Complainant’s rights in its mark date back to 2018.
The disputed domain name was registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its marks.
Respondent is using the disputed domain name to resolve to a website containing advertising links for products and services not related to Complainant.
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 consists of a simple misspelling of Complainant’s AMY SCHUMER mark (the first “m” is replaced with an “n”) with the mere addition of the “.com” generic top level domain (gTLD). Such changes are not sufficient to distinguish a domain name from a mark under the Policy. See AltaVista Company v. Astavista.com, FA 95251 (Nat. Arb. Forum Aug. 17, 2000) (finding altaivsta.com and astavista.com confusingly similar to ALTAVISTA); see also Coachella Music Festival, LLC v. Domain Administrator / China Capital Investment Limited, FA 1734230 (Forum July 17, 2017) (“The addition of letters—particularly of those that create a common misspelling—fails to sufficiently distinguish a domain name from a registered mark.”); see also Intelius, Inc. v. Hyn, FA 703175 (Forum July 5, 2006) (finding the <intellus.com> domain name to be confusingly similar to the complainant’s INTELIUS mark because the domain name differed from the mark by one letter and was visually similar); see also Minerva S.A v. Ozril Peters, D2018-2177 (WIPO November 13, 2018) (“The replacement of the letter “v” for the visually and phonetically similar letter “u” in the “minerua” portion of the Domain Name is disregarded, as it is not readily noticeable”). Thus the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under 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 Radio Flyer Inc. v. er nong wu, FA 2011001919893 (Forum Dec. 16, 2020) (“Here, the WHOIS information lists “er nong wu” as the registrant and no information suggests Complainant has authorized Respondent to use the RADIO FLYER mark in any way. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).”). Here, the WHOIS information of record identifies the registrant as “Domain Administrator”. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
The disputed domain name resolves to a parked page that displays pay-per-click hyperlinks to products and services that are not related to those of Complainant. Use of a domain name to resolve to a webpage displaying third party hyperlinks is not a use indicative of rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii). See Bloomberg Finance L.P. v. Syed Hussain / IBN7 Media Group, FA 1721384 (Forum Apr. 26, 2017) (holding that the respondent’s use of the disputed domain name to redirect Internet users to commercial websites, unrelated to the complainant and presumably with the purpose of earning a commission or pay-per-click referral fee did not evidence rights or legitimate interests in the domain name); see also Marshalls of Nevada, Inc v. Data Protected, FA900888 (Forum Jul. 31, 2020) (“[u]se of a disputed domain name to resolve to a site displaying pay-per-click advertisements generally does not qualify as a bona fide offering of goods or services”); see also Tumblr, Inc. v. Ailing Liu, FA543807 (NAF Mar. 24, 2014) (the respondent was not making a bona fide offering of goods or services under Policy ¶ 4(c)(i) where the disputed domain name was used to direct Internet traffic away from the complainant’s website and to various unrelated commercial third-party websites). The Panel therefore finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use. And 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, the resolving website contains advertising links to third party websites unrelated to Complainant’s business. Use of a domain name to resolve to a page of third-party links can demonstrate a respondent’s bad faith per Policy ¶ 4(b)(iv). See Dovetail Ventures, LLC v. Klayton Thorpe, FA1506001625786 (Forum Aug. 2, 2015) (holding that the respondent had acted in bad faith under Policy ¶ 4(b)(iv), where it used the disputed domain name to host a variety of hyperlinks, unrelated to the complainant’s business, through which the respondent presumably commercially gained). The Panel therefore finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶¶ 4(b)(iv).
Respondent’s bad faith is further evident through its typosquatting behavior. Here, the disputed domain name differs from Complainant’s mark only by the replacing the first letter “m” in the mark with the letter “n”, which is adjacent on an ASCII keyboard. Typosquatting is the registration of domain names which target specific marks and only differ through minor typographical mistakes, and can be independent evidence of bad faith per Policy ¶ 4(a)(iii). See Vanguard Trademark Holdings USA LLC v. Shuai Wei Xu / Xu Shuai Wei, FA 1784238 (Forum June 1, 2018) (finding the respondent engaged in typosquatting—and thus registered and used the at-issue domain names in bad faith—where the names consisted of the complainant’s mark with small typographical errors introduced therein). Accordingly, the Panel finds that Respondent’s typosquatting behavior indicates it registered and used the disputed domain name in bad faith per 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 <anyschumer.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: October 21, 2022
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