WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Facebook, Inc. v. Shubham Srivastava
Case No. D2017-2472
1. The Parties
The Complainant is Facebook, Inc. of Menlo Park, California, United States of America ("United States"), represented by Hogan Lovells (Paris) LLP, France.
The Respondent is Shubham Srivastava of New Delhi, India.
2. The Domain Name and Registrar
The disputed domain name <fbtechsupport.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 December 14, 2017. On December 14, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 15, 2017, 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on January 2, 2018. In accordance with the Rules, paragraph 5, the due date for Response was January 22, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on January 24, 2018.
The Center appointed Tobias Zuberbühler as the sole panelist in this matter on January 30, 2018. 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, Facebook, Inc., is a leading provider of online social networking services. Through its main website "www.facebook.com" and the associated app, Facebook allows Internet users to stay connected with and share information with friends and family. Since its launch in 2004, Facebook experienced exponential growth and rapidly gained considerable popularity and recognition worldwide. According to the Complainant, today Facebook has over 2 billion monthly active users and 1.32 billion daily active users all around the world. The Complainant's main website is the world's third most visited website and its mobile app is one of the most frequently downloaded apps on the market.
The Complainant is the proprietor of trademark registrations consisting of the term "FB" in several jurisdictions throughout the world, details of which were annexed to the Complaint. Such trademark registrations include: United States trademark no. 4659777, registered on December 23, 2014; Canadian trademark no. TMA929282, registered on February 18, 2016; Chilean trademark no. 940863, registered on December 19, 2011; Mexican trademark no. 1254929, registered on November 30, 2011; European Union trade mark no. 008981383, registered on August 23, 2011.
The Complainant also owns numerous domain names consisting of or including its FB trademark, e.g., <fb.com>; <fb.am>; <fb.asia>; <fb.bs>; <fb.fr>; <fb.co.uk>. The Complainant is commonly known by the abbreviation FB. Several prominent publications, such as the New York Times and The Guardian, have used the term "FB" in relation to the Complainant and its services. The Complainant also submits a number of Indian press and blog articles referring to the Complainant as FB.
The Respondent is a private person based in India.
The disputed domain name, <fbtechsupport.com>, was registered on October 14, 2016. The disputed domain name is active and is used for operating a website which purportedly offers technical support to Facebook users through a telephone hotline. The homepage prominently displays the words "Facebook Technical Support" over a toll-free telephone number and a "Call Now" button. In its different sections, the website contains direct links to and screen captures of the Complainant's official technical assistance website at "www.facebook.com/help/". A disclaimer appears at the bottom of the homepage, in a smaller font and against a darker background, which reads as follows: "FB Tech support is an independent client service provider that renders complete support for Facebook account whenever user is not able to get connected with tech guys working at Facebook Inc. The trademark, images and theme used in the website is for referential or informational purpose and we totally disclaim ownership of these attributes mentioned herein as Facebook Inc. will have complete authority on them which we respect the most."
5. Parties' Contentions
In summary, the Complainant contends the following:
The disputed domain name is identical or confusingly similar to the Complainant's FB trademark, because it incorporates the trademark in its entirety with the addition of the generic terms "tech" and "support". These additional terms only reinforce the confusing similarity with the Complainant's trademark, as they are closely related to the Complainant's own online activities.
The Respondent has no rights or legitimate interests in respect of the disputed domain name, as the Respondent is not a licensee of the Complainant, nor has it been otherwise authorized to make any use of its FB trademark, in a domain name or otherwise. Given that the Respondent operates a website using a domain name that includes the Complainant's trademark in relation to technical assistance, it cannot invoke a bona fide offering of goods and services, as Internet users will most likely believe that the Respondent is connected to the Complainant. The Respondent is using the disputed domain name as part of a scam operation, with the purpose of accessing Facebook users' personal data for its own financial gain. The following are viewed by the Complainant as strong indications of fraudulent activity in connection with the disputed domain name: There are reports on the Internet that malware has been detected in the website associated with the disputed domain name; the hotline numbers provided on the Respondent's website have also been used to offer presumed support hotlines in relation to other well-known companies' products and services, such as Epson, Enigma Software, Panasonic, Google et al.; one of the hotline numbers appearing on the Respondent's website has been reported as scam on several websites.
Furthermore, given the Complainant's notoriety and the fact that the term "FB" is strongly associated with the Complainant, the Respondent cannot credibly claim that it is commonly known by the disputed domain name.
The Respondent can also not assert that it has made or is currently making a legitimate noncommercial or fair use of the disputed domain name. The Respondent's intention is not to use the disputed domain name in a fair manner, but to somehow unfairly exploit the goodwill and reputation attached to the Complainant's trademark for its own or a third party's financial gain. The disclaimer at the bottom of the Respondent's homepage, which is in small print, is unlikely to be seen by Internet users, given the large amount of text on the website.
The disputed domain name was registered and is being used in bad faith. Since the Complainant's FB trademark – which is also the common abbreviation for the Complainant's company name and services – is distinctive and famous throughout the world, it would be inconceivable for the Respondent not to have had knowledge of the Complainant's rights at the time of registration of the disputed domain name, particularly since the registration of the Complainant's trademarks predate the registration of the disputed domain name. The Respondent's use of the disputed domain name to resolve to a website which displays the Complainant's FACEBOOK trademark, hyperlinks to the Complainant's official website, as well as a disclaimer, can leave no doubt of the Respondent's awareness of the Complainant and its trademark. The Respondent is deliberately using the disputed domain name, identically reproducing the Complainant's FB trademark in conjunction with the terms "tech" and "support", seeking to attract Internet users searching for technical assistance relating to the Complainant's services and divert them to the Respondent's own website, presumably for fraudulent purposes.
The Complainant sees further evidence of bad faith in the fact that the Respondent has provided a false or inaccurate postal address as well as in the fact that it used a privacy shield to conceal its identity, making it more difficult for the Complainant to protect its rights against infringement.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
In light of the evidence submitted, the Panel finds that the Complainant has rights in the FB trademark. The disputed domain name comprises the Complainant's trademark as its first and dominant element. The additional words "tech" and "support" are dictionary terms and, as such, cannot sufficiently distinguish the disputed domain name from the Complainant's trademark. Furthermore, as the Complainant itself offers technical support services on its official website, the addition of the terms "tech" and "support" may reinforce the confusing similarity with the Complainant and its services. Accordingly, the Panel finds that the disputed domain name is identical or confusingly similar to a trademark in which the Complainant has rights.
The requirement under paragraph 4(a)(i) of the Policy is thus fulfilled.
B. Rights or Legitimate Interests
The Complainant has made out a strong prima facie case that the Respondent has no rights or legitimate interests in respect of the disputed domain name, which remains unrebutted by the Respondent. The Respondent has used the disputed domain name not in connection with a bona fide offering of goods or services, but rather to direct users to a website imitating the look and feel of the Complainant's official technical support homepage, by making unauthorized use of the Complainant's FB and FACEBOOK trademarks, by including on its website hyperlinks to the Complainant's official website and screen captures thereof, and by using a similar color scheme of white and blue, thereby creating an overall impression of affiliation with the Complainant, which is likely to confuse Internet users.
As the Complainant rightly points out, the disclaimer included in small print at the bottom of the Respondent's homepage could be easily overlooked by the average Internet user, who is likely to pay more attention to and even call the much more prominently displayed hotline number, without ever noticing the disclaimer. Furthermore, the Panel notes that the main text on the Respondent's website contains numerous references to the Complainant and its technical support services, which are at best ambiguous if not intentionally misleading as to the website's connection to the Complainant. Under these circumstances, the Panel holds that the disclaimer does nothing or very little to prevent the Respondent from unfairly passing itself off as related to the Complainant.
The Panel therefore finds that the Respondent does not have any rights or legitimate interests in respect of the disputed domain name.
The Complainant has thus also satisfied the requirement under paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
In view of the Complainant's worldwide renown and popularity, the fact that the Complainant's trademark rights predate the registration of the disputed domain name and the fact that the declared purpose of the website associated with the disputed domain name is to offer technical support for users of the Complainant's social networking services, it is evident that the Respondent had knowledge of the Complainant and its rights at the time of registration of the disputed domain name.
By using the Complainant's trademark in the disputed domain name and in the content of its website and by creating a false impression of affiliation with the Complainant, the Respondent unfairly takes advantage of the goodwill and reputation attached to the Complainant's trademark, in order to attract Internet users who might be looking for assistance with the Complainant's services to the Respondent's own website, most likely with a view to commercial gain. The Panel finds that the registration occurred in bad faith and that Respondent's conduct amounts to bad faith use for the purposes of paragraph 4(b)(iv) of the Policy. In this context, the question whether the Respondent is indeed conducting a phishing or otherwise fraudulent operation may be left open.
The Panel therefore finds that the disputed domain name has been registered and is being used in bad faith. The requirement under paragraph 4(a)(iii) of the Policy is fulfilled.
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 <fbtechsupport.com> be transferred to the Complainant.
Date: February 13, 2018