1.1 The Complainant is Surecom Corporation NV, Landhuis Joonchi, Kaya Richard J. Beaujon of Willemstad, Curacao, the Netherlands, represented by Eidsness Law Offices, United States of America.
1.2 The Respondent is PrivacyProtect.org of Nobby Beach, Australia/ mitrea vasile of Galati, Romania.
2.1 The disputed domain name <cam4shared.com> (the “Domain Name”) is registered with Launchpad.com Inc. (the “Registrar”).
3.1 The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 31, 2013. As at the time of the filing of the Complainant the publically available WhoIs details for the Domain Name identified PrivacyProtect.org as the registrant. On December 31, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On January 2, 2014, the Registrar transmitted by email to the Center its verification response identifying “mitrea vasile” as the registrant and providing contact information for the Domain Name. The Center sent an email communication to the Complainant on January 3, 2014 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on January 5, 2014 naming both PrivacyProtect.org and “mitrea vasile” as Respondents.
3.2 The Center verified that the Complaint together with the amended 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”).
3.3 In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondents of the Complaint, and the proceedings commenced on January 8, 2014. The Center received a series of email communications from an email address confirmed by the Registrar to belong to one of the Respondents, beginning on January 9, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was January 28, 2014. The Respondents did not submit any formal response. Accordingly, the Center notified the parties of the commencement of the Panel appointment process on January 29, 2014.
3.4 On January 30, 2013 the Center noted that the WhoIs details for the Domain Name had changed and now recorded the registrant of the Domain Name to be “Zoft Media”. The Center sent an email to the Registrar asking for an explanation as to how this could have occurred given the Registrar’s confirmation in is verification response that the Domain Name had been placed on register lock.
3.5 In an email later that day the Registrar responded as follows:
“These changes have been reverted immediately and the original registrant has been restored as previously confirmed for the domain cam4shared.com. We are investigating to see why the changes were made even though the domain is locked. The domain will remain locked until we receive notification of a decision from the Panel.”
3.6 The Center appointed Matthew S. Harris as the sole panelist in this matter on February 5, 2014. 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.
4.1 The Complainant is incorporated in Curacao. It is the owner of the domain name <cam4.com>, which was first registered in July 1999. The Complainant has since June 2007 operated a website from that domain name that offers free live adult webcam feeds. Within 1 year from its launch the website received 57 million unique visitors and by 2013 that had increased to over 1 billion visitors. In 2013 it had an Alexa site ranking of 720.
4.2 The Complainant is the owner of various trade mark registrations around the world that comprise the term “Cam4”. They include:
(i) United States registered trade mark no. 4062460 for CAM4 as a word mark in classes 35 and 38 with a filing date of December 2, 2010; and
(ii) Community Trade Mark no. 10053701 for CAM4 as a word mark in classes 35 and 41 with an application date of June 16, 2011
4.3 The Domain Name was initially registered on September 17, 2012.
4.4 As at the date of the Complaint the Domain Name was being used for a website that provided live adult webcam feeds. As at the date of this decision the Domain Name is being used to redirect internet traffic to a website offering live adult webcam feeds from the domain name <chaturbate.ro>.
5.1 The Complainant gives details as to the history and reputation of its business and refers to its registered trade marks. It claims that the Domain Name is identical or confusingly similar to those marks. In doing so it contends that “shared” is a term of art in the webcam peer-to peer cam industry to denote the concept of webcams sharing content across the internet. Accordingly, it is claimed that the addition of the word “shared” in the Domain Name amounts to the addition of a generic term.
5.2 The Complainant claims that the Respondent is not commonly known by the Domain Name. It asserts that the Domain Name has been chosen by the Respondent in an attempt to pass itself off as <cam4.com> or as in some way affiliated with <cam4.com>. It, therefore, contends that the Respondent has no right or legitimate interest in the Domain Name.
5.3 So far as bad faith is concerned, the Complainant alleged that the Respondent was well aware of the Complainant’s business when it registered the Domain Name, and with the intention of displaying similar materials to the Complaint. Further, it contends that the Respondent has used the similarity between the Domain Name and the Complainant’s mark to intentionally attract for commercial gain, Internet users to the Respondent’s website.
5.4 The Complainant also complains about the fact that neither Privacy Protect nor the Registrar responded to emails sent to them in December 2013 asserting that the Domain Name was being used in a manner that infringed the Complainant’s trade mark rights.
5.5 The Respondent did not formally reply to the Complainant’s contentions. However, on January 23, 2014, the Center received an email from an email address that was the same as that provided by the Registrar for “mitrea vasile”. It is convenient simply to reproduce the body of that email in full below:
“Hello im a romanian person if you want me to understend something from what you say please translate all emails into romanin to can understend you well i have no ideea what you want from me what is your problem yes i was buy my domain from hostgatour http://cam4shared.com but as you see cam4shared.com is not similar with cam4.com and I dont use theyr intelectual in any whay they was a abusive complain against me and if you are a arbitral person please lisent both part not only them if you are an intelectual man write on google cam4.com and see where in the rank page result is cam4shared.com you will se is nowere because I dont use nothing from them i dont use they rank alexa google yahoo bing nothing cam4shared.com have no problem with cam4.com and if they realy whant my domain name telll them is for sale i ask 4000 euro and i will sell to them but dont take my domain abusive have a gr8 day”
5.6 The Center also received a similar email on January 30, 2014, but in this email the sale price for the Domain Name had changed to “1.000.000 of euros”.
6.1 There are no exceptional circumstances within paragraph 5(e) of the Rules so as to prevent this Panel from determining the present dispute based upon the Complaint, notwithstanding the failure of any person to lodge a formal Response.
6.2 Where no Response is filed, the Complainant must still make out its case in all respects under paragraph 4(a) of the Policy. Namely, the Complainant must prove that:
(i) the Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights (paragraph 4(a)(i)); and
(ii) the Respondent has no rights or legitimate interests in respect of the Domain Name (paragraph 4(a)(ii)); and
(iii) the Domain Name has been registered and are being used in bad faith (paragraph 4(a)(iii)).
6.3 However, under paragraph 14 of the Rules, where a party does not comply with any provision of the Rules, the Panel shall “draw such inferences therefrom as it considers appropriate”.
6.4 The Panel will address each of these requirements in turn. In doing so and save where otherwise is apparent, references to the Respondent in this decision are to be references to the “underlying registrant” who actually controls the Domain Name, whomever that may be. For the reasons that are set out by the Panel at paragraphs 6.17 and 6.18 of its decision in RapidShare AG, Christian Schmid v. PrivacyAnywhere Software, LLC, Mikhail Berdnikov (Protected Domain Services Customer ID: DSR-2262893, Protected Domain Services Customer ID: DSR-2092987), WIPO Case No. D2010-0894, whether or not that person is the formal Respondent for the purposes of these proceedings is something that is of no practical significance so far as paragraph 4(a) of the Policy is concerned.
6.5 The Complainant clearly owns registered trade mark rights in the word mark CAM4. The Panel also accepts that the most sensible reading of the Domain Name is as the term “Cam4” combined with the English word “shared” and the “.com” generic Top Level Domain (“gTLD”). The Panel also accepts that the addition of the English word “shared” and the “.com” gTLD does not so detract from the “Cam4” element of the Domain Name as to prevent a finding of confusing similarity (as that term is understood under the Policy) with the Complainant’s marks. In the circumstances, the Complainant has made out the requirements of paragraph 4(a)(i) of the Policy.
6.6 For reasons that the Panel explains in slightly greater detail under the heading “Registered and Used in Bad Faith” below, the Panel accepts the Complainant’s contention that the Domain Name was registered and has been used by the Respondent with a view to taking unfair advantage of the similarity between the Domain Name and the Complainant’s CAM4 trade marks. It is clear that the registration and use of a domain name for such a purpose does not provide a right or legitimate interest for the purposes of the policy. Indeed, in the opinion of the Panel it constitutes positive evidence of the fact that no right or legitimate interest exists. In the circumstances, the Complainant has made out the requirements of paragraph 4(a)(ii) of the Policy.
6.7 The Panel accepts that on the material before it the most sensible interpretation of the facts in this case is that the Domain Name was registered and has been used by the Respondent with a view to taking unfair advantage of the similarity between the Domain Name and the Complainant’s CAM4 trade marks.
6.8 In this respect the Panel notes and relies upon the following:
(i) As far as the Panel is aware there is no obvious generic or descriptive meaning of the term CAM4, at least so far as live adult webcam feeds are concerned. This is so even if the term “cam” might be understood as an allusion to or abbreviation of the word “webcam”.
(ii) The Panel accepts the Complainant’s claims that by the time the Domain Name was registered the Complainant’s services had developed a significant reputation around the world.
(iii) It is clear that the Respondent has used the Domain Name to offer services in competition to those of the Respondent. Given this and the facts identified at (i) and (ii) above the obvious conclusion to be drawn is that the Domain Name was chosen and used because of its similarity to the Complainant’s mark, in the hope and expectation that Internet users would be confused into thinking that the Respondent’s service was associated in some way with that of the Complainant and would be drawn to the Respondent’s website as a result.
6.9 The Respondent’s activities, therefore, fall within the scope of the circumstances indicating bad faith set out at paragraph 4(b)(iv) of the Policy. This is so regardless of how successful the Respondent has been in drawing users to the Respondent’s site. The Complainant has made out the requirements of paragraph 4(a)(iii) of the Policy.
7.1 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 <cam4shared.com> be transferred to the Complainant.
Matthew S. Harris
Sole Panelist
Date: February 7, 2014