WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Beronata Services Ltd v. Private Registration, Account Privacy / Suren Akopian

Case No. D2017-1796

1. The Parties

The Complainant is Beronata Services Ltd of Nicosia, Cyprus, represented by SafeNames Ltd., United Kingdom of Great Britain and Northern Ireland (“United Kingdom”).

The Respondent is Private Registration, Account Privacy of Tampa, Florida, United States of America (“United States”) / Suren Akopian of Yerevan, Armenia.

2. The Domain Name and Registrar

The disputed domain name <bongocams.com> (the “Disputed Domain Name”) is registered with Nettuner Corp. DBA Webmasters.com (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 15, 2017. On September 15, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On September 19, 2017, 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 26, 2017 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 27, 2017.

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 28, 2017. In accordance with the Rules, paragraph 5, the due date for Response was October 18, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 19, 2017.

The Center appointed John Swinson as the sole panelist in this matter on October 30, 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 Beronata Services Ltd, a company based in Cyprus. The Complainant and its related companies own and operate live video streaming apps and websites related to the adult entertainment industry.

The Complainant registered the domain name <bongacams.com> on January 25, 2012, at which the Complainant provides its live video chat services in connection with the “Bongacams” brand (the “Complainant’s Website”). The Complainant’s services launched in March 2012. Accordingly, the Complainant claims unregistered trade mark rights in BONGACAMS (the “Trade Mark”) since March 2012.

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The Complainant owns registered European Union trade mark number 011717485 which was registered on July 23, 2013 for the following device mark:

The Respondent is Suren Akopian, an individual of Armenia and the registered owner of the Disputed Domain Name. The Respondent did not file a Response, and consequently little information is known about the Respondent.

The Disputed Domain Name was registered on April 12, 2012. According to the Complaint, the Disputed Domain Name changed registrant ownership to the Respondent during July 2015.

At the time the Complaint was filed and of this decision, the Disputed Domain Name redirects to a website at the domain name <amateurcams.com>.

5. Parties’ Contentions

A. Complainant

The Complainant makes the following submissions.

Identical or Confusingly Similar

The Disputed Domain Name is confusingly similar to the Trade Mark as it features all elements of the Trade Mark, with the exception of the letter “o” replacing the letter “a”. The difference of a single letter is “typosquatting” whereby the Respondent is using the Disputed Domain Name to take advantage of when Internet users quickly type a URL or search for a website and through an innocent mistake, are directed to an alternative website to what the user had intended.

Further, the addition of the generic Top Level Domain (“gTLD”) “.com” is disregarded for the purposes of comparing similarity between the Disputed Domain Name and the Trade Mark.

Rights or Legitimate Interests

The Respondent lacks rights and legitimate interests in the Disputed Domain Name. The Respondent does not hold any rights by way of trade mark rights or common law rights in and to the Trade Mark or the term “Bongocams”.

The Respondent registered the Disputed Domain Name with the intention of redirecting Internet users to the Respondent’s website, a competing adult-themed website which offers the same services as the Complainant. This is not a bona fide offering of goods or services, as the Respondent is using a confusingly similar variation of the Trade Mark in order to further the Respondent’s commercial activity. Even if the Respondent itself is not receiving funds from the redirection, or it is not obvious how the Respondent is benefiting from the redirection, using the Disputed Domain Name to take advantage of the Trade Mark and redirecting Internet users to another website does not create a legitimate interest. There is nothing to suggest the Respondent’s use of the Disputed Domain is legitimate, noncommercial or fair use.

Further, the Respondent is not known nor has never been known by the Trade Mark or the term “Bongocams”. There appears to be no legitimate reason for the registration and use of the Disputed Domain Name. The Respondent seeks to keep the Disputed Domain Name from the Complainant and to take advantage of the goodwill and reputation of the Trade Mark.

Registered and Used in Bad Faith

The Disputed Domain Name was registered and is being used in bad faith.

The Respondent acquired the Disputed Domain Name during July 2015, which post-dates the registration of the Trade Mark. This is relevant as bad faith must occur at the time the current registrant took possession of the domain name.

Based on the distinctive nature of the Trade Mark, being a made up word with no generic meaning, and the Respondent’s website being associated with similar webcam services to those of the Complainant, the Respondent would have been aware of the Complainant’s rights in the Trade Mark. The Respondent could have used a different domain name but chose to ride on the back of the reputation of the Trade Mark.

The Respondent has also engaged in “typosquatting” which has been found as evidence of bad faith (see Ticketmaster Corporation v. Woofer Smith, WIPO Case No. D2003-0346).

Further, in support of an argument under paragraph 4(b)(iv) of the Policy, the Respondent has used a domain name featuring a confusingly similar variation of the Trade Mark in order to profit from unsuspecting Internet users intending to find the Complainant’s Website and instead, are redirected to competing services at the Respondent’s website. It is also likely that the Respondent is benefiting financially from the redirection to the Respondent’s website, which is and has been found as strong evidence of bad faith in previous disputes.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

To succeed, the Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied, namely:

(i) the Disputed Domain Name is identical or confusingly similar to a trade mark 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.

The onus of proving these elements remains on the Complainant even though the Respondent has not filed a Response.

The Respondent’s failure to file a Response does not automatically result in a decision in favour of the Complainant (see, e.g., Airbus SAS, Airbus Operations GmbH v. Alesini Pablo Hernan / PrivacyProtect.org, WIPO Case No. D2013-2059). However, the Panel may draw appropriate inferences from the Respondent’s default.

A. Identical or Confusingly Similar

Paragraph 4(a)(i) of the Policy provides that the Complainant must establish that the Disputed Domain Name is identical or confusingly similar to the Trade Mark.

For the purposes of assessing identity or confusing similarity, the Panel has compared the Disputed Domain Name and the textual component of the Trade Mark (see section 1.10 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)). The Panel finds that the Trade Mark satisfies the requirement that the Complainant show “rights in a mark” prior to assessing confusing similarity.

The Disputed Domain Name consists of a common, obvious or intentional misspelling of the Trade Mark. It is well established that “typosquatting” is considered to constitute confusing similarity (see section 1.9 of the WIPO Overview 3.0).

The Panel considers that the Disputed Domain Name is confusingly similar to the Trade Mark.

In this case, the gTLD “.com” does nothing to detract from this similarity.

The Complainant is successful on the first element of the Policy.

B. Rights or Legitimate Interests

Paragraph 4(a)(ii) of the Policy provides that the Complainant must establish that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. The Complainant is required to make out a prima facie case showing that the Respondent lacks rights or legitimate interests.

The Panel finds that the Complainant has made out a prima facie case. This finding is based on the following:

- There is no evidence that the Respondent has been commonly known by the Disputed Domain Name or the Trade mark, or has registered or common law trade mark rights in relation to the Trade Mark.

- The Respondent has not used, or made demonstrable preparations to use, the Disputed Domain Name in connection with a bona fide offering of goods and services. At the time of this decision, the Disputed Domain Name redirects to a website which provides similar services to those provided by the Complainant. Further, the Panel accepts the Complainant’s assertions that the Respondent is using the Disputed Domain Name solely to take advantage of the goodwill and reputation of the Trade Mark. In the circumstances, this is not a bona fide use of the Disputed Domain Name under the Policy.

- The Respondent has not been making a legitimate noncommercial or fair use of the Disputed Domain Name without intent for commercial gain. Based on the evidence provided by the Complainant, the Panel considers that the Respondent is using the Trade Mark to redirect Internet users to the Respondent’s website, a competing site, which does not confer rights or legitimate interests on the Respondent (see section 2.5.3 of the WIPO Overview 3.0).

The Respondent had the opportunity to demonstrate its rights or legitimate interests, but did not do so. As such, the prima facie case established by the Complainant has not been rebutted and the Complainant succeeds on the second element of the Policy.

C. Registered and Used in Bad Faith

Paragraph 4(a)(iii) of the Policy provides that the Complainant must establish that the Respondent has registered and is using the Disputed Domain Name in bad faith.

The Complainant has been operating its website at the domain name <bongacams.com> since March 2012 and has provided evidence that it has developed goodwill and brand-recognition in its Trade Mark.

According to the Complaint, the Respondent acquired the Disputed Domain Name during July 2015. The Complainant has provided evidence that the Disputed Domain Name was initially created by a registrant other than the Respondent and that the Respondent acquired the Disputed Domain Name after the Complainant’s rights in the Trade Mark accrued. For the purposes of assessing whether bad faith registration can be found here, the Panel considers the circumstances at the date the Respondent acquired the Disputed Domain Name (see section 3.8.1 of the WIPO Overview 3.0).

In light of the reputation of the Trade Mark and based on the evidence provided by the Complainant, it is probable that the Respondent had knowledge of the Trade Mark at the time of acquiring the Disputed Domain Name. Here, the Panel can reasonably infer that the Respondent sought to take advantage of the reputation of the Trade Mark, and acquired the Disputed Domain Name because of this reputation.

The Panel considers that the likely effect of the Respondent’s registration and use of the Disputed Domain Name, particularly in redirecting to another domain name which provides competing services, was to attract Internet users to the Respondent’s website for commercial gain, by creating a likelihood of confusion with the Trade Mark as to the source, sponsorship, affiliation, or endorsements of the Respondent’s website. This is evidence of bad faith registration and use (see paragraph 4(b)(iv) of the Policy).

In light of the above, and in the absence of a Response and any evidence rebutting bad faith registration and use, the Panel finds that the Complainant has succeeded on the third element of the Policy.

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 <bongocams.com> be transferred to the Complainant.

John Swinson
Sole Panelist
Date: November 9, 2017