WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Docler IP S.àr.l., DuoDecad IT Services Luxembourg S.àr.l., WebMindLicenses Korlàtolt Felelösségu Társaság v. Domain Admin / Zoran Savic
Case No. D2015-1186
1. The Parties
The Complainants are Docler IP S.àr.l. of Luxembourg, Luxembourg (the "First Complainant"), DuoDecad IT Services Luxembourg S.àr.l., of Luxembourg, Luxembourg (the "Second Complainant") and WebMindLicenses Korlàtolt Felelösségu Társaság of Budapest, Hungary (the "Third Complainant"), internally represented.
The Respondent is Domain Admin / Zoran Savic of Nassau, Bahamas.
2. The Domain Name and Registrar
The disputed domain name <livejasminfreecredits.com> is registered with Internet.bs Corp. (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on July 9, 2015. On July 9, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 13, 2015, 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.
The Center verified that 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on July 17, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was August 6, 2015. The Respondent did not submit any formal Response.
The Center appointed Steven A. Maier as the sole panelist in this matter on August 12, 2015. 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 Panel determines that its is proper for the Complainants to bring a single consolidated Complaint against the Respondent having regard to the criteria set out in paragraph 4.16 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0").
4. Factual Background
The First and Second Complainants are private limited liability companies registered in Luxembourg. The Third Complainant is a limited company registered in Hungary.
The Complainants offer online adult entertainment services under the name and mark LIVEJASMIN.
The Third Complainant is the owner of trademark registrations including the following:
- Germany trademark number 30568329 for LIVEJASMIN registered on May 8, 2006 in International Class 38.
- United States of America trademark number 3129772 for LIVEJASMIN registered on August 15, 2006 in International Class 38.
- United Kingdom trademark number 02416341 for LIVEJASMIN registered on December 22, 2006 in International Class 38.
The Complainants submit that they are part of the same group of companies and that they have a common interest in the trademark LIVEJASMIN as a result of inter-company licensing arrangements.
The disputed domain name was registered on April 24, 2014.
According to evidence submitted by the Complainants, the disputed domain name has been used to resolve to a website at "www.livejasminfreecredits.com" which purported to offer software for download entitled "LiveJasmin Free Credits Hack 2015."
5. Parties' Contentions
The Complainants submit that they have operated a website at "www.livejasmin.com" in the adult entertainment market since 2001 and that they currently operate one of the most successful services in the girls' web-cam sector. They state that they average 8,000 new subscriptions per day and that they have 68,000 active models' accounts, with an annual turnover of in excess ofEUR 230 million. They submit evidence that, according to the Alexa ranking website, their site at "www.livejasmin.com" is the world's number one most visited video chat community.
The Complainants contend that the disputed domain name is identical or confusingly similar to a trademark or service mark in which they have rights. The Complainants submit that the disputed domain name comprises their mark LIVEJASMIN in its entirety, together with the generic term "free credits" and the generic Top-Level domain ("gTLD") ".com" which is to be ignored for the purposes of comparison. The Complainants say that the term "free credits" does not distinguish the disputed domain name from the Complainants' trademark and that, in fact, will mislead Internet users into believing that the disputed domain name is related to or operated by the Complainants.
The Complainants submit that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainants say that they have never authorized the Respondent to use their mark LIVEJASMIN and that there is no relationship between them and the Respondent. They further contend that the Respondent has no trademark rights in or other legitimate connection with the disputed domain name and that his only activity in connection with the disputed domain name is to misleadingly offer a website which suggests that free credits for the Complainant's website are available.
The Complainants submit that the disputed domain name has been registered and is being used in bad faith. They contend that the Respondent must have been aware of their LIVEJASMIN mark when he registered the disputed domain name, not only because of the notoriety of the mark, but also because he has used the disputed domain name specifically to refer to the Complainants' website.
The Complainants exhibit correspondence with the Respondent between February and June 2015 in which they objected to the Respondent's use of the disputed domain name. The Respondent's replies included the statement:
"you should be stupid if i [sic] really think that my software is giving free credits, my software is not working its just for marketing! so leave me alone!"
In another email the Respondent stated:
"I will never never shut down this site and I will create 10 more sites like this on the different names and emails."
This email concluded with an obscenity directed at the Complainants.
The Complainants contend that it is clear from the above that it is the Respondent's intention to divert Internet traffic to his website by infringing the Complainants' rights in their LIVEJASMIN trademark.
The Complainants seek a transfer of the disputed domain name.
The Respondent did not file a formal Response to the Complainant's contentions. However, the Respondent sent an email to the Center dated July 17, 2015 in which he stated:
"Domain is my property that I bought a fair and paying it. You have no right to take away something that's mine. I'm not doing anything illegal, if anyone wants my domain can only negotiate on the price. goodbye"
The Panel determines that the above-referenced communication shall stand as the Response in this proceeding.
6. Discussion and Findings
In order to succeed in their Complaint, the Complainants are required to show that all three of the elements set out under paragraph 4(a) of the Policy are present. Those elements are:
(i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainants have rights;
(ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) that the disputed domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Complainants have established that they are the owners of long-standing registered trademark rights in the mark LIVEJASMIN in numerous territories. The Complainants have also demonstrated to the satisfaction of the Panel that the name and mark LIVEJASMIN is well known in the adult entertainment sphere and distinctive of the Complainants' services.
The disputed domain name comprises the term "livejasmin", which is the whole of the Complainants' trademark, together with the term "freecredits" and the gTLD ".com", which is to be disregarded for the purposes of comparison. The Panel accepts the Complainants' submission that the term "freecredits" is descriptive in nature and is not effective to distinguish the disputed domain name from the Complainants' trademark. On the contrary, the disputed domain name is liable to suggest to Internet users that it relates to the Complainants' website and that free credits are available for use with that site.
Accordingly, the Panel finds that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainants have rights.
B. Rights or Legitimate Interests
Based on their submission in the Complaint as set out above, the Panel finds that the Complainants have established a prima facie case that the Respondent has no rights or legitimate interests in respect of the disputed domain name. It was open to the Respondent to answer that case, whether by reference to any of the factors that may demonstrate rights or legitimate interests as set out in paragraph 4(c) of the Policy or otherwise. However, the Respondent's only response appears to be that he bought and paid for the disputed domain name, which can not of itself give rise to any rights or legitimate interests for the purposes of the Policy. Nor does the Respondent's use of the disputed domain name for "marketing" give rise to any rights or legitimate interests in circumstances where such marketing is predicated upon the Respondent taking unfair advantage of the Complainants' trademark.
In the circumstances, the Panel concludes that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
C. Registered and Used in Bad Faith
Based on the evidence of the Complainants, the Panel readily infers that the Respondent must have been aware of the Complainants' name and trademark LIVEJASMIN at the date he registered the disputed domain name and that he registered the disputed domain name with the obvious intention of taking unfair advantage of the Complainants' goodwill in that trademark.
The Panel also finds that the Respondent has used the disputed domain name for the purpose of a website which misleadingly suggests a connection with the Complainants and their business and falsely purports to offer free credits for use with the Complainants' website. Indeed, the Respondent has admitted in correspondence with the Complainants that he has no such credits to offer and that his website is "just for marketing."
In the circumstances, the Panel determines that by using the disputed domain name, the Respondent has intentionally attempted to attract for commercial gain Internet users to his website by creating a likelihood of confusion with the Complainants' mark as to the source, sponsorship, affiliation, or endorsement of his website or of a product or service on his website (paragraph 4(b)(iv) of the Policy).
The Panel therefore finds that the disputed domain name has been registered and is being used in bad faith.
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 <livejasminfreecredits.com> be transferred to the First Complainant1.
Steven A. Maier
Date: August 18, 2015
1 The Panel is aware that the disputed domain name may be transferred to the Second or Third Complainant at the Complainants' option.