WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
FazeClan Inc v. Vietnam Domain Privacy Services / Pham Dinh Nhut
Case No. D2017-0559
1. The Parties
The Complainant is FazeClan Inc. of Plainview, New York, United States of America (“United States”), represented by Cowan, DeBaets, Abrahams & Sheppard, LLP, United States.
The Respondent is Vietnam Domain Privacy Services of Ho Chi Minh, Viet Nam / Pham Dinh Nhut of Ho Chi Minh, Viet Nam.
2. The Domain Name and Registrar
The disputed domain name <fazeclan.com> (the “Domain Name”) is registered with April Sea Information Technology Corporation (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 17, 2017. On March 20, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On March 24, 2017, the Registrar transmitted by email to the Center its verification response indicating that the language of the registration agreement is Vietnamese and disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on March 28, 2017, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amended Complaint. On the same date, the Center notified the Parties in both English and Vietnamese that the language of the registration agreement for the Domain Name is Vietnamese.
The notification instructed the Complainant by March 31, 2017:
1) to provide satisfactory evidence of an agreement between the Complainant and the Respondent to the effect that the proceedings should be in English;
2) to submit the Complaint translated into Vietnamese; or
3) to submit a request for English to be the language of the administrative proceedings.
The Respondent was notified that if the Complainant requested the proceeding to be in English and the Respondent wished to object to such a request, it was invited to make such objection and submit any arguments as to why the proceeding should not be conducted in English by April 2, 2017. If the Center did not hear from the Respondent by that date then it would proceed on the basis that the Respondent had no objection to the Complainant’s request that English be the language of the proceeding. The Respondent did not respond to the notification.
On March 30, 2017, the Complainant filed an amended Complaint and requested English to be the language of the proceeding.
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 in English and Vietnamese of the Complaint, and the proceedings commenced on April 4, 2017. In accordance with the Rules, paragraph 5, the due date for Response was April 24, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 25, 2017.
The Center appointed Ian Lowe as the sole panelist in this matter on May 8, 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.
4. Factual Background
The Complainant is a professional eSports team that fields teams in various videogame competitions. It began participating in public videogame competitions in June 2010. In 2012, the Complainant put together its first formal roster to compete in the Major League Gaming Inc. Winter Championship. Since then, it has fielded teams in over 30 eSports competitions.
Over 4 million users subscribe to the Complainant’s YouTube channel; its Facebook page has over 357,000 followers.
The Complainant has provided its gaming services to the public using the trademark FAZECLAN (the “Mark”) since 2010. The Complainant is the proprietor of United States registered trademark number 4,906,907 FAZECLAN filed on July 24, 2013, and registered on March 1, 2016.
The Domain Name was registered on March 3, 2011. It resolves to a parking page comprising links to third-party websites, including competitors of the Complainant.
5. Parties’ Contentions
The Complainant contends that the Domain Name is identical to the Mark, that the Respondent has no rights or legitimate interests in respect of the Domain Name and that the Respondent registered and is using the Domain Name in bad faith within the meaning of paragraph 4(b)(iv) of the Policy.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Language of the proceeding
Under paragraph 11 of the Rules, in the absence of an agreement between the parties or specified otherwise in the registration agreement, the language of the administrative proceeding shall be the language of the registration agreement. This is, however, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the proceeding. Here, the language of the Registration Agreement is Vietnamese. The Complainant has, however, requested that English be the language of the proceeding, citing in particular that the Domain Name is in English and that the web page to which the Domain Name resolves is also in English
After receiving the Complaint in English, the Center notified the Parties, in both Vietnamese and English, of the Center’s procedural rules regarding the language of the proceeding. The Center informed the Respondent that it could object in a timely manner to the proceeding being conducted in the English language. The Respondent did not respond to the Center’s notification, and has declined to take part in the proceeding. In these circumstances, the Panel determines that English be the language of the proceeding.
Turning to the merits, according to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name the Complainant must prove that:
(i) the 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 Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Complainant has uncontested rights in the Mark, both by virtue of its trademark registration and as a result of the goodwill and reputation acquired through its use of the Mark over a number of years. Ignoring the generic Top-Level Domain (“gTLD”) “.com”, the Domain Name comprises the entirety of the Mark. Accordingly, the Panel finds that the Domain Name is identical to a trademark in which the Complainant has rights.
B. Rights or Legitimate Interests
The Complainant has made out a strong prima facie case that the Respondent could have no rights or legitimate interests in respect of the Domain Name. The Respondent has not used the Domain Name in connection with a bona fide offering of goods or services, but for a parking page comprising click-through links to third-party websites, including the websites of competitors of the Complainant. There is no suggestion that it has ever been known by the Domain Name. The Respondent has chosen not to respond to the Complainant or to take any steps to counter the prima facie case established by the Complainant. In the circumstances, the Panel finds that the Respondent does not have any rights or legitimate interests in respect of the Domain Name.
C. Registered and Used in Bad Faith
Although the Domain Name comprises two dictionary words, “faze” and “clan”, the Panel considers that the combination is distinctive and that, in the circumstances, it is most likely that the Respondent had the Complainant and its rights in the Mark in mind when it registered the Domain Name. The Panel further considers that there is a legitimate presumption that the Respondent is deriving commercial gain from using the Domain Name for a website comprising a parking page with pay-per-click links to third-party websites, including competitors of the Complainant. In the Panel’s view, this amounts to paradigm bad faith registration and use for the purposes of paragraph 4(a) of the Policy. The Panel accordingly finds that the Domain Name was 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 Domain Name <fazeclan.com> be transferred to the Complainant.
Date: May 22, 2017