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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Ilnar Akhmetkhanov v. Domain Admin, Whois Privacy Corp.

Case No. D2016-2627

1. The Parties

The Complainant is Ilnar Akhmetkhanov of Kazan, Russian Federation, represented by Evgeny Berlin, Russian Federation.

The Respondent is Domain Admin, Whois Privacy Corp. of Nassau, New Providence, Bahamas.

2. The Domain Name and Registrar

The disputed domain name <psycabi.net> is registered with Internet Domain Service BS Corp (the "Registrar").

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on December 27, 2016. On December 27, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 27, 2017, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.

In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amended Complaint on January 5, 2017.

The Center verified that the Complaint together with the amended Complaint (hereinafter referred both together as the "Complaint") satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy" or "UDRP"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules").

In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on January 9, 2017. In accordance with the Rules, paragraph 5, the due date for Response was January 29, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on February 1, 2017. The Center received two emails from a third party on February 1, 2017. The Center sent a communication on February 7, 2017 requesting this third party to identify itself, its relationship with the disputed domain name, and / or a clarification of its relationship to the Respondent. No reply was received.

The Center appointed Ladislav Jakl as the sole panelist in this matter on February 23, 2017. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. The Complainant filed an Addition to the Complaint on March 4, 2017.

On March 16, 2017, at the request of the Panel, the Center issued the Procedural Order No. 1 to the Parties. The Panel order requested the Complainant to: (i) provide evidence to support the Complainant's assertion of rights in the trademark on which the Complaint is based; and (ii) provide evidence in support of its assertion that the Complainant was the previous registrant of the disputed domain name.

The Complainant filed a response to Procedural Order No. 1 on March 22, 2017. The Respondent did not file a response to Procedural Order No. 1.

4. Factual Background

The disputed domain name <psycabi.net> was initially registered by the Complainant on September 4, 2012. In accordance with the evidence submitted with the Complaint, the disputed domain name was used to develop a popular website which included articles about psychology, with more than 13 million users between September 4, 2012 and December 23, 2016. However, the Complainant has no registered trademarks coinciding with the disputed domain name, or similar to it.

On November 17, 2016 the Complainant received an email communication which read that the Motor Vehicle Inspectorate has imposed a fine on him (Annexes 4 and 5 to the Complaint). The Complainant passed along the reference shown in the letter, entered his login and a password of his P.O. Box.

On November 27, 2016 the Complainant found that he had no longer an access to the site and the WhoIs of the disputed domain name showed the contact details of another person as administrative contact of the disputed domain name.

In accordance with the evidence submitted with the Complaint, the disputed domain name, once under the control of the Respondent, resolved to a website almost identical to the website available at the disputed domain name when it was under the Complainant's control.

5. Parties' Contentions

A. Complainant

Although the Complainant has registered no trademark, coinciding with the disputed domain name or similar to it, he argues that, in accordance with previous UDRP decisions, he has unregistered trademark rights in the disputed domain name. The Complainant makes reference to Worldcom Exchange, Inc v. Wei.com, Inc., WIPO Case No. D2004-0955; James Good o/a Pornreports.com v. Mark Anderson, WIPO Case No. D2004-0391; and Julia Lack v. Fundacion Private Whois, Domain Administrator / Artem Metlev; WIPO Case No. D2013-0935; according to which the use of an unregistered mark as a domain name has also been recognized as sufficient to meet the test under paragraph 4(a)(i) of the Policy. The Complainant proves his rights under "psycabi" or "psycabi.net" with its previous use of the disputed domain name for more than 4 years before it was subsequently controlled by the Respondent. According to data of site "www.web.archive.org", promptly after the registration of the disputed domain name, content on the topic of psychology was placed thereat and visitors began to attend it (Annex 6 to the Complaint). Moreover the Complainant argues that his right over the disputed domain name is confirmed by the fact that the site at the disputed domain name has been visited by 13 million users between its registration date and the moment it became under the control of the Respondent. That is proved by data of the counter Google Analytics (Annex 7 to the Complaint). The Top-Level Domain ("TLD") ".net" is a technical designation and in this sense is conceived by users of Internet. Taking into consideration that "psycabi" is a coined term, the disputed domain name has no descriptive character regarding services rendered by the Complainant.

As to rights or legitimate interests, in respect of the disputed domain name, the Complainant essentially contends that the Complainant has used the disputed domain name for four years and has attracted to the site more than 13 million visitors between its registration date and the moment it became under the control of the Respondent. There are no data confirming that the Respondent has been engaged in similar activities. According to Complainant the Respondent has completely copied the content of the Complainant that is proved by the information shown by the website "www.web.archive.org" as of October 6, 2016 (Annex 10 to the Complaint) and the state of the website at the disputed domain name as of the time of filing the Complaint. The Respondent has not made any material additions or corrections into the content of the website at the disputed domain name shown when it was under the Complainant's control, but the Respondent has only placed advertising blocks overhead and at the right on pages which had not been on the site at the time when the disputed domain had been owned by the Complainant (Annexes 11 and 12 to the Complaint). This means that the Respondent uses the disputed domain name and the content owned by the Complainant for an illegal receipt of profit without having made any efforts and investments in the development of the site. At present it is impossible to register oneself at the site (Annex 13 to the Complaint) neither service of repliers to questions of visitor works, nor other services. This means that the Respondent has managed only to copy the html code of the site at the disputed domain name, but he has failed to obtain an access to the server which makes possible to perform the functions. Therefore the Respondent does not keep the site in an operational condition and he has no legal interest in the use of it. To prevent a replacement of the content by the Respondent after filing the Complaint, the Complainant addressed the Notary Public of the city of Moscow so as to fix the content of the site that is proved by the Examination protocol dated December 12, 2016 (Annex 14 to the Complaint) and its translation made by the Complainant (Annex 15 to the Complaint).

Furthermore the Complainant argues that the disputed domain name is also being used in bad faith, as the Respondent had not been previously engaged in activities similar to Complainant's and the Respondent had not used for the purpose names identical or similar to disputed domain name <psycabi.net>. The Respondent has fully copied the content of the Complainant's site having no right or permission given by the Complainant. The Complaint further contends that the Respondent did not place on the site or an another public resource any information that the right to administer the disputed domain name had passed to it as a result of which users think that the website at the disputed domain name is still owned by the Complainant. Therefore, these actions of the Respondent mislead users regarding the owner of the site. Moreover the Respondent did not make any changes in the content of the site and he does not support operation of services available therein. The Respondent has placed new advertising blocks on the site for the purpose of an illegal drawing of profit. The Respondent has no evidences of the Complainant's consent given for the transfer of the domain and the content placed thereat to him. The Respondent cannot confirm any relations existing between it and the Complainant, which might involve the transfer of any rights to the domain and the content to the Respondent.

On March 4, 2017 the Complainant filed an Addition to the Complaint asking to take into account, that apart from everything else, dishonesty of the Respondent is proved by the fact that the Respondent had deleted all content from the website "www.psycabi.net" after submission of the Complaint and arranged redirection to the website "www.psychok.net" thus redirecting the audience of the site "www.psycabi.net" to a new site and misleading the users with regard to the site they actually go to as well as its owner. That the fact of the redirection arrangement is confirmed by the screenshot of "www.web.archive.org" at the following address: "www.web.archive.org/web/20170228104217/http://psycabi.net". And that this fact also testified absence of the Respondent's interest in using the disputed domain name "www.psycabi.net" as he actually does not use it to carry out any activities.

In reply to Procedural Order No. 1, the Complainant provided evidence to support the Complainant's assertion of rights in the trademark on which the Complaint is based, as well as evidence in support of its assertion that the Complainant was the previous registrant of the disputed domain name.

B. Respondent

The Respondent did not reply to the Complainant's contentions in both the Complaint and the response to Procedural Order no. 1.

6. Discussion and Findings

In accordance with paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements is satisfied:

(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and

(iii) the disputed domain name has been registered and is being used in bad faith.

Paragraph 4(a) of the Policy states that the burden of proving that all three elements are present lies with the Complainant.

A. Identical or Confusingly Similar

In spite of the fact that the Complainant has no registered trademarks identical to the disputed domain name, or similar to it, it is possible to recognize that the Complainant has unregistered trademark rights. It is consensus view that such rights may be sufficient for the purpose of establishing rights under paragraph 4(a)(i) of the Policy (Skattedirectoratet v. Eivind Nag, WIPO Case No. D2000-1314; Amsec Enterprises, L.C. v. Sharon McCall, WIPO Case No. D2001-0083).

The Panel finds that the Complainant has proven his rights in "psycabi.net" with its use of the disputed domain name for more than 4 years before it became under control of the Respondent. According to the data available on the website "www. web.archive.org", promptly after the registration of the disputed domain name, some content on the topic of psychology was placed thereat and visitors began to access to it (Annex 6 to the Complaint). Moreover the Complainant argues that he has unregistered trademark rights in "psycabi.net" by the fact that the site at the disputed name when it was under its control was visited by more than 13 million visitors. That is proved by data of the counter Google Analytics (Annex 7 to the Complaint). Such a standpoint is confirmed by previous UDRP decisions (Worldcom Exchange, Inc. v. Wei.com, Inc., WIPO Case No. D2004-0955; James Good o/a Pornreports.com v. Mark Anderson, WIPO Case No. D2004-0391; Julia Lack v. Fundacion Private Whois, Domain Adminsitrator / Artem Metlev, WIPO Case No. D2013-0935). The narrative evidence, supported by exhibits, is adequate to support the Panel's conclusion that the Complainant has unregistered rights in the service mark and domain name.

As a result the Panel finds that the first element of paragraph 4(a)(i) of the Policy has been established.

B. Rights or Legitimate Interests

Under paragraph 4(a)(ii) of the Policy, the Complainant must prove that the Respondent has no rights or legitimate interests in the disputed domain name. Any of the following circumstances, as indicated in paragraph 4(c) of the Policy, in particular but without limitation shall demonstrate rights or legitimate interests:

(i) before the Respondent obtained any notice of the dispute, he has used or has made demonstrable preparations to use the disputed domain name or a name corresponding to the disputed domain name, in connection with a bona fide offering of goods or services; or

(ii) the Respondent (as individual, business, or other organization) has been commonly known by the disputed domain name, even if he has acquired no trademark or service mark rights; or

(iii) the Respondent was making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

The Panel finds in light of the evidence submitted with the Complaint that, before the Respondent obtained any notice of the dispute, the Complainant has used the disputed domain name during 4 years and has attracted to his site more than 13 million visitors. The Respondent has completely copied the content of the Complainant's site, which is proven by the data shown at the website "www.web.archive.org" as of October 6, 2016 (Annex 10 to the Complaint) and the state of the site as of the time of filing of this Complaint. A mere registration of a domain name does not give the owner rights or legitimate interests in the domain name itself (Terroni Inc. v. Gioacchino Zerbo, WIPO Case No. D2008-0666; St Andrews Links Ltd. v. Refresh Design, WIPO Case No. D2009-0601; Gibson, LLC v. Jeanette Valencia, WIPO Case No. D2010-0490).

The Respondent did not exercise its right to respond in these proceedings, neither in filing a response to the Complaint, nor to the Procedural Order No. 1. Thus, the Respondent has failed to rebut the prima facie case made by the Complainant or advance any other argument supporting rights or legitimate interests.

For the above cited reasons, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name, and that the requirements of paragraph 4(a)(ii) of the Policy are therefore fulfilled.

C. Registered and Used in Bad Faith

Under paragraph 4(a)(iii) of the Policy, the Complainant must prove that the disputed domain name was registered and is being used in bad faith. Paragraph 4(b) of the Policy sets out certain circumstances which, in particular, but without limitation, are to be construed as evidence of both:

"(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or

(ii) the Respondent has registered the disputed domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the Respondent has engaged in a pattern of such conduct; or

(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the disputed domain name, you have intentionally attempted to attract, for commercial gain, Internet users to his website or other online location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of his website or of a product or service on that website or location."

The Respondent has fully copied the content of the Complainant's to which the disputed domain name previously resolved. In the Panel's opinion, this is evidence that the Respondent had the Complainant in mind when it registered the disputed domain name.

The Complainant has submitted evidence, unchallenged by the Respondent, that the disputed domain name is being used in bad faith, as the Respondent had not been prior engaged in activities similar to the activities of the Complainant and he had not used for the purpose names identical or similar to disputed domain name <psycabi.net>. There is no doubt that the Respondent has registered the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the disputed domain name and that the Respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor, namely, the Complainant. Likewise redirecting the audience of the site "www.psycabi.net" to a new site and misleading the users with regard to the site they actually end up on also testifies to the absence of the Respondent's legitimate interest in using the disputed domain name as the Respondent actually does not use it to carry out any legitimate activities.

Thus, the evidence in the case before the Panel indicates that, the Respondent has kept the content previously uploaded by the Complainant at the disputed domain name, with the addition of advertising blocks. The Panel concludes that the Complainant has proved the requirements under paragraph 4(b)(iv) of the Policy and that the disputed domain name has been registered and is being used in bad faith.

For the above cited reasons the Panel finds that the disputed domain name was registered and is being used in bad faith. Considering all the facts and evidence, the Panel finds that the requirements of paragraph 4(a)(iii) of the Policy are also fulfilled in this case.

7. Decision

For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <psycabi.net> be transferred to the Complainant.

Ladislav Jakl
Sole Panelist
Date: April 7, 2017

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