WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Facebook, Inc. v. Prashant Chhibber
Case No. D2017-2477
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 Prashant Chhibber of New Delhi, India, self-represented.
2. The Domain Name and Registrar
The disputed domain name <facebook-supportnumber.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 15, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 19, 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 3, 2018. In accordance with the Rules, paragraph 5, the due date for Response was January 23, 2018. On January 4, 2018, the Respondent submitted an email indicating that it would like to delete the disputed domain name. On the same day, the Center notified the Parties that if they wish to explore settlement options, the Complainant should submit a request for suspension by January 11, 2018. The Complainant replied that it did not wish to settle. The Respondent did not submit any formal response by the specified due date. Accordingly, on January 24, 2018, the Center informed the Parties that it would proceed to panel appointment.
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.
The Respondent sent a further informal communication to the Center on January 31, 2018.
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 FACEBOOK in several jurisdictions throughout the world, including in India, where the Respondent is based. Such trademark registrations include Indian trademark no. 1622925, registered on November 9, 2011; United States trademark no. 3122052, registered on July 25, 2006; European Union trade mark no. 005585518, registered on May 25, 2011; International Trademark no. 1232015, registered on December 15, 2014; International Trademark no. 1075094, registered on July 16, 2010. The Complainant also owns numerous domain names consisting of or including the term "facebook". The worldwide renown of the Complainant's FACEBOOK trademark has been confirmed by previous UDRP panels (e.g., Facebook, Inc. v. Mirza Azim, WIPO Case No. D2016-0950; Facebook, Inc. v. Sleek Names, SL Names, VSAUDHA, WIPO Case No. D2015-0547; Facebook, Inc. v. He Wenming, WIPO Case No. DCC2013-0004).
The disputed domain name, <facebook-supportnumber.com>, was registered on August 8, 2017. At the time the Complaint was filed, the disputed domain name resolved to a website which purportedly offered technical support for Facebook users through a toll-free telephone number. The following phrases, which appear on the website, indicate that users would be charged for these support services: "No Fix, No Charges: If our experts are unable to fix your issue. You don't need to pay anything"; "100% Money back guarantee. (Get back your money within 30 days of subscription)"; "We never work for money, we work for satisfaction. We only charge if you get a satisfactory solution and charge nothing unable to resolve your issue."; "We don't charge any extra amount for registration. You will only be charged for the services you avail. First, we inform and then charge."
Under the headline "Why Contact Third Party Facebook Customer Support?", the homepage mentions that "we are independent Facebook support services". At the bottom of the homepage, the following disclaimer is displayed in fine print: "We are not a direct Facebook support but a third party FB support services. We work independently to provide technical assistance for FB issues. We have no branches or any other contact details apart from the given ones. We only take our guarantee and aren't responsible for the actions of other third parties available in the market."
5. Parties' Contentions
In summary, the Complainant contends the following:
The disputed domain name is identical or confusingly similar to the Complainant's FACEBOOK trademark, because it incorporates the trademark in its entirety with the addition of a hyphen and the generic terms "support" and "number". These additional elements only reinforce the confusing similarity with the Complainant's trademark, as they relate to assistance services which the Complainant itself offers through its website "www.facebook.com/help/".
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 he been otherwise authorized by the Complainant to make any use of the FACEBOOK trademark. The Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services, nor can he assert that he is making a legitimate noncommercial or fair use of the disputed domain name. The Respondent uses the disputed domain name to operate a website which mimics the look and feel of the Complainant's website and purports to offer a support hotline for users of the Complainant's website. This creates the false impression for Internet users that the Respondent is somehow connected to the Complainant. The Claimant further alleges that the Respondent is using the disputed domain name as part of a scam operation, with the purpose of accessing Facebook users' personal data for his own financial gain. The following are viewed by the Claimant as strong indications of fraudulent activity: The website associated with the disputed domain name has been reported as malicious; the same toll-free telephone number appearing on the website is also displayed on other websites offering support hotlines for products of well-known companies such as Microsoft, Norton, Lexmark, Canon, Dell, Pogo or HP; the Respondent's name and telephone number are associated with several domain name registrations which include well-known trademarks in connection with the word "support" or versions thereof.
Furthermore, the Respondent cannot claim that he is commonly known by the disputed domain name.
The disputed domain name was registered and is being used in bad faith. Given the Complainant's notoriety and highly distinctive trademark, it is not conceivable that the Respondent had no knowledge of the Complainant's FACEBOOK trademark at the time of registration, particularly since the Complainant's trademark rights predate the registration of the disputed domain name. The fact that the Respondent uses the FACEBOOK trademark in the disputed domain name as well as on his website and purportedly provides technical assistance in relation with the Complainant's social networking services is evidence of the Respondent's awareness of the Complainant and its rights. The Complainant submits that the Respondent has intentionally sought to attract Internet users searching for a support hotline relating to the Complainant's services and divert them to the Respondent's own website for financial gain, demonstrating bad faith. Furthermore, the possibility that the Respondent is using the disputed domain name as part of a fraudulent operation constitutes a risk to users' safety and is also detrimental to the Complainant's reputation.
By email of January 4, 2018, the Respondent stated that he had not been aware of the misuse of the disputed domain name, apologized, and expressed his wish to have the disputed domain name deleted. On January 31, 2018, the Respondent sent an email communication to the Center stating that the website at the disputed domain name had been removed. The Respondent did not reply to the Complainant's contentions on the merits.
6. Discussion and Findings
A. Identical or Confusingly Similar
Based on the evidence on record, the Panel has no hesitation in finding that the Complainant has rights in the FACEBOOK trademark. The disputed domain name incorporates the Complainant's FACEBOOK trademark in its entirety. In the view of the Panel, the additional elements, namely the hyphen and the words "support" and "number", do not serve to sufficiently distinguish the disputed domain name from the Complainant's trademark, which remains its dominant element. Moreover, since the Complainant itself offers technical support services on its website, the addition of these words could also reinforce the confusing similarity between the disputed domain name and the Complainant.
The Panel therefore finds that the disputed domain name is confusingly similar to the Complainant's trademark.
The Complainant has satisfied the requirement under paragraph 4(a)(i) of the Policy.
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. Furthermore, the Respondent's email of January 4, 2018 may even be regarded as an acknowledgement by the Respondent of an illegitimate use of the disputed domain name.
The Respondent uses the disputed domain name to resolve to a website which imitates the Complainant's official assistance webpage at "www.facebook.com/help" by using the Complainant's trademark, by offering technical assistance related specifically to the Complainant's services and by displaying the same color scheme of white and blue. Although the Respondent's homepage mentions in passing that it is independent of the Complainant and even contains a disclaimer to this effect at the bottom of the page (in small print), these mentions can be easily overlooked by Internet users. Users looking for help are more likely to give attention to the prominently displayed toll-free hotline number and call this number, thereby engaging the Respondent's services and incurring charges, without even noticing the disclaimer. The overall misleading impression that the website produces on the user, namely that it is in some way affiliated with the Complainant's trademark, is not entirely dispelled by such disclaimer. The Panel therefore finds that the Respondent is not using the disputed domain name in connection with a bona fide offering of services in the sense of the Policy.
Furthermore, as the Complainant rightly argues, the Respondent cannot avail himself of any of the other circumstances set out in paragraph 4(c) of the Policy.
Under the circumstances of the case, it is not necessary for the Panel to establish whether the website associated with the disputed domain name is indeed a phishing operation intended to obtain personal data of Facebook users.
In view of the above considerations, the Panel finds that the Complainant has satisfied the requirement under paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
Given the fame and worldwide recognition of the Complainant's FACEBOOK trademark, the fact that the Complainant's trademark registrations predate the registration of the disputed domain name, as well as the fact that the Respondent specifically refers to the Complainant's social networking services on its website, it is clear that the Respondent had knowledge of the Complainant and its rights in the FACEBOOK trademark when registering the disputed domain name. By using the disputed domain name to operate a website which purportedly offers technical support for Facebook users, the Respondent has intentionally sought to attract Internet users to his website by creating a likelihood of confusion with the Complainant's trademark as to the affiliation of this website and the services offered on this website. This constitutes bad faith within the terms of paragraph 4(b)(iv) of the Policy.
As elaborated above, the Respondent's bad faith cannot be cured by the existence of a disclaimer displayed in small print on the bottom of his homepage. Reference is made, in this context, to section 3.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, emphasizing that, where the overall circumstances point to a respondent's bad faith, the use of a disclaimer may be viewed as an admission by the respondent that users may be confused. Such is the case here.
The Panel thus finds that the requirement of bad faith registration and use under paragraph 4(a)(iii) of the Policy is also 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 <facebook-supportnumber.com> be transferred to the Complainant.
Date: February 12, 2018