WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Andrey Ternovskiy dba Chatroulette v. Registration Private, Domains By Proxy, LLC / I S, ICS INC
Case No. D2016-1916
1. The Parties
The Complainant is Andrey Ternovskiy dba Chatroulette of Moscow, Russian Federation, represented by CSC Digital Brand Services AB, Sweden.
The Respondent is Registration Private, Domains By Proxy, LLC of Scottsdale, Arizona, United States of America / I S, ICS INC of Grand Cayman, Cayman Islands, Overseas Territory of the United Kingdom of Great Britain and Northern Ireland.
2. The Domain Name and Registrar
The disputed domain name <chatrovlette.com> is registered with GoDaddy.com, LLC (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on September 20, 2016. On September 20, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 20, 2016, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on September 22, 2016 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 September 22, 2016.
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").
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 30, 2016. In accordance with the Rules, paragraph 5, the due date for Response was October 20, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on October 21, 2016.
The Center appointed Sir Ian Barker as the sole panelist in this matter on October 31, 2016. 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. Factual Background
The Complainant created and owns an online chat website that attracts random Internet users from around the world for real-time, webcam-based conversations. As well as online video chat services, the Complainant provides special introduction and networking services.
The Complainant has provided these services under the brand "Chatroulette" since 2009. The popularity and high-profile of these services grew very rapidly so that the Complainant's website at <chatroulette.com> averaged some 260,000 monthly visitors in the period August 2015 to August 2016.
The Complainant owns trademark registrations for CHATROULETTE in various jurisdictions including the European Union, the United States of America and Germany. All of these trademark registrations occurred before the disputed domain name was registered on March 7, 2016 (see, e.g., the European Union trademark No. 008944076 registered on December 4, 2012). The first use in commerce of the trademark was December 5, 2009.
At first the website found at the disputed domain name displays the message "Redirecting" before taking users to various, unrelated websites. Each time a user types in the URL a different website will be displayed.
The website at which the disputed domain name resolves features multiple third-party links for Online Chat Rooms for Singles, Dating Online Chat, Free Chat Software, Free Online Video Chat, and additional chat related services. Presumably, the Respondent receives pay-per-click fees from the linked websites that are listed at the disputed domain name's website. The website also indicates that the Disputed Domain Name is being offered for sale in an amount of USD 299.
Furthermore, the disputed domain name also at times resolves to a website that attempts to infect Internet users' computers with viruses or malware. Upon reaching the website available at the disputed domain name, Internet users are told that there has been a serious malfunction with their computer and to call a toll-free helpline. Another time, the website available at the disputed domain name appears as a Facebook page telling users their computer has been blocked and to call a phone number.
5. Parties' Contentions
The disputed domain name is confusingly similar to the Complainant's trademarks.
As the disputed domain names differ from the Complainant's trademark by one letter, the disputed domain name is a typical example of typosquatting. See RX America, L.L.C. v. Tony Rodolakis, WIPO Case No. D2005-1190.
The practice of typosquatting intentionally takes advantage of Internet users who inadvertently type an incorrect address – often a misspelling of the complainant's trademark – when seeking to access the trademark owner's website. This means that a deliberate misspelling of a trademark registered as a domain name, which is intended to confuse Internet users, must be confusingly similar by design. See RX America, L.L.C. v. Tony Rodolakis, supra (referring to intentional misspellings as "typosquatting", which "has consistently been regarded as creating domain names that are confusingly similar to the relevant mark"). See also Dow Jones & Company, Inc. and Dow Jones, L.P. v. Powerclick, Inc., WIPO Case No. D2000-1259 (holding that the deliberate introduction of errors or changes does not render the respondent's domain name less confusingly similar to the core trademark held by the complainant).
The Respondent is profiting from the fame of the Complainant's trademark by operating a "click-through" website which accesses competitors of the Complainant. The website creates confusion and causes Internet users to believe that the Respondent has some endorsement or permission from the Complainant to use his trademark.
The Respondent has no rights or legitimate interests such as would entitle him to reflect the Complainant's trademark in the disputed domain name. None of the situations contemplated by paragraph 4(c) of the Policy apply to the Respondent.
It is not possible to conceive a plausible explanation for registration of the disputed domain names other than in bad faith, given the fame of the Complainant's trademark and brand. The Respondent must have known of the existence of the Complainant's trademark at the time of registration of the disputed domain name. Typosquatting is evidence of bad faith registration and ongoing use.
When the disputed domain name resolves to a website which attempts to infect users' computers with viruses or malware bad faith registration and use is indicated.
The Respondent's offering to sell the disputed domain name constitutes bad faith under paragraph 4(b)(i) of the Policy.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy provides that in order to be entitled to a transfer of a domain name, a complainant shall prove the following three elements:
(i) The domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights;
(ii) The respondent has no rights or legitimate interests in respect of the domain name; and
(iii) The domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The disputed domain name is confusingly similar to the Complainant's registered trademark.
The minor variation to the trademarked expression CHATROULETTE is clearly a deliberate misspelling and a typical example of typosquatting which has been frequently condemned in many decisions under the Policy (e.g., RX America, LLC v Tony Rodolakis, supra).
Accordingly, paragraph 4(a)(i) of the Policy is satisfied.
B. Rights or Legitimate Interests
The Complainant gave the Respondent no authority of any sort to reflect its trademark in the disputed domain name.
This fact and the circumstances of the present case satisfy paragraph 4(a)(ii) of the Policy in the absence of any response from the Respondent.
The Respondent could have claimed that one of the situations envisaged by paragraph 4(c) of the Policy applied to the registration of the disputed domain name, e.g., by invoking paragraph 4(c) to the satisfaction of the Panel that one of its three provisions applied in this case. However, the Respondent has chosen not to file a response, and the Complainant has met its burden here.
Accordingly, paragraph 4(a)(ii) of the Policy is satisfied.
C. Registered and Used in Bad Faith
This is a blatant case of bad faith registration and use which is clearly established by the following grounds:
1) The offer to sell the disputed domain name by the Respondent for financial gain is evidence of bad faith under paragraph 4(b)(i) of the Policy.
2) The disputed domain name inevitably causes confusion amongst Internet users and disruption of the Complainant's legitimate business – particularly since the services of the Complainant's competitors are mentioned on the Respondent's website.
3) The disputed domain name and its accessed websites give the impression that the Respondent has had some permission or license to reflect the Complainant's trademark in the disputed domain name and the website.
4) The resolution of the disputed domain name to a website which attempts to infect users' computers is an obvious indication of bad faith.
5) The use of a proxy registration on the facts of this case indicates bad faith.
There is thus an overwhelming inference of bad faith registration and use and therefore paragraph 4(a)(iii) of the Policy is satisfied.
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 <chatrovlette.com> be transferred to the Complainant.
Sir Ian Barker
Date: November 8, 2016