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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

xHamster IP Holdings Ltd v. Jurgen Neeme

Case No. D2020-3152

1. The Parties

The Complainant is xHamster IP Holdings Ltd, Antigua and Barbuda, internally represented.

The Respondent is Jurgen Neeme, Estonia.

2. The Domain Name and Registrar

The disputed domain name <xhamster.site> (the “Domain Name”) is registered with NameSilo, LLC (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 24, 2020. On November 24, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On November 24, 2020, the Registrar transmitted by email to the Center its verification response 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 November 25, 2020, 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 November 27, 2020.

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 November 30, 2020. In accordance with the Rules, paragraph 5, the due date for Response was December 20, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 21, 2020.

The Center appointed Mathias Lilleengen as the sole panelist in this matter on January 4, 2021. 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 offers adult entertainment in the form of downloadable video recordings, motion pictures, film clips, and images.

The Complainant is a holder of Benelux Trademark XHAMSTER, registration no. 0986331, registered on December 3, 2015; Antigua and Barbuda Trademark XHAMSTER, registration no. 9039, registered on November 3, 2015; and, European Union Intellectual Property Office trademark no 018255445, registered on October 31, 2020. The Complainant’s website “www.xhamster.com” was in 2020 the fourth most popular pornography Internet website in the world.

The Domain Name was registered on April 15, 2020. At the time of drafting the Decision, the Domain Name redirected to a pay-per-click webpage featuring links to adult entertainment webpages. The pay-per-click webpage listed the Domain Name for sale.

5. Parties’ Contentions

A. Complainant

The Complainant provides evidence of trademark registrations and goodwill in its trademarks. The Complainant argues that the Domain Name is used to attract users to the Respondent’s website using the Complainant’s brand awareness across the globe.

The Complainant asserts that the Respondent is not authorized to use the Complainant’s trademark. The Domain Name was registered 13 years after the Complainant first started its operation on “www.xhamster.com”. The Respondent has no bona fide offering of goods or services, as the Domain Name is not operational and is listed for sale. The Complainant believes that the Respondent uses the Complainant’s name to attract users to its website and to solicit prospective buyers. The Respondent has never tried to become an affiliate of the Complainant or obtain consent to use the Complainant’s trademark.

The Complainant believes the Respondent is illegally infringing the Complainant’s trademark for commercial gain, namely by attracting Internet users to the Respondent’s website, by creating confusion with the Complainant’s trademark. Moreover, according to the Complainant, the Respondent has not provided contact details because the Respondent understands it lacks legitimate interests in the Domain Name.

B. Respondent

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

6. Discussion and Findings

A. Identical or Confusingly Similar

The Complainant has established that it has rights in the trademark XHAMSTER. The Domain Name is identical to the Complainant’s trademark. For the purpose of assessing under paragraph 4(a)(i) of the Policy, the Panel ignores the generic Top-Level Domain (“gTLD”) “.site”; see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.11.

The Panel finds that the Domain Name is identical to a trademark in which the Complainant has rights in accordance with paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

The Complainant has made unrebutted assertions that it has not granted any authorization to the Respondent to register the Domain Name or otherwise make use of its mark. There is no evidence that the Respondent has registered the Domain Name as a trademark or acquired unregistered trademark rights. The Respondent cannot establish rights in the Domain Name, as it has not made use of, or demonstrable preparations to use, the Domain Name in connection with a bona fide offering. The Respondent’s use of the Domain Name is not bona fide, noting that the links displayed at the Domain Name compete with or capitalize on the reputation and goodwill of the Complainant’s mark. See section 2.9 of the WIPO Overview 3.0.

The Panel finds that the Complainant has made out an unrebutted case. Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name in accordance with paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

The Domain Name is identical to the Complainant’s trademark. Based on the case file and in particular the Respondent’s use of the Domain Name, the Panel finds it likely that the Respondent knew of the Complainant when the Respondent registered the Domain Name. The Respondent has made no bona fide use of the Domain Name.

The Panel believes the Respondent has registered the Domain Name to attract Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s trademark. Moreover, the Respondent’s use of a privacy service may in this context further indicate bad faith.

For the reasons set out above, the Panel concludes that the Domain Name was registered and is being used in bad faith, within the meaning of paragraph 4(a)(iii) 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 Domain Name <xhamster.site> be transferred to the Complainant.

Mathias Lilleengen
Sole Panelist
Date: January 6, 2021

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