WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Meta Platforms, Inc. v. Jewella Privacy - C1cfa, Jewella Privacy LLC Privacy / Peter Nguyen, Azzu
Case No. D2021-4331
1. The Parties
The Complainant is Meta Platforms, Inc., United States of America (“United States”), represented by Hogan Lovells (Paris) LLP, France.
The Respondent is Jewella Privacy - C1cfa, Jewella Privacy LLC Privacy, United States / Peter Nguyen, Azzu, United States.
2. The Domain Names and Registrar
The disputed domain names <afcebook.com>, <facbeook.com>, <facebiok.com>, <facebkok.com>, <faceblok.com>, and <facebpok.com> are registered with Sea Wasp, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 21, 2021. On December 22, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On December 22, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on December 23, 2021, 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 December 28, 2021.
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 January 5, 2022. In accordance with the Rules, paragraph 5, the due date for Response was January 25, 2022. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 26, 2022.
The Center appointed Evan D. Brown as the sole panelist in this matter on February 2, 2022. 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 social technology company and operates Facebook, Instagram, and WhatsApp. It owns the trademark FACEBOOK, which it has registered in multiple jurisdictions, including the United States (e.g., Reg. No. 3,041,791, registered on January 10, 2006, alleging a date of first use of February 4, 2004).
According to the WhoIs records, the disputed domain names were registered on June 23, 2005. As of the date of the filing of the Complaint, the disputed domain names were set to redirect to the Google home page. The evidence submitted by the Complainant shows that the disputed domain names were previously used to point to a number of different websites, including websites displaying pornographic images and messages offering Facebook users a chance to receive rewards in exchange for completing surveys.
5. Parties’ Contentions
The Complainant contends that the disputed domain names are identical or confusingly similar to the Complainant’s trademark; that the Respondent has no rights or legitimate interests in respect of the disputed domain names; and that the disputed domain names were registered and are being used in bad faith.
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 listed in paragraph 4(a) of the Policy have been satisfied: (i) the disputed domain names are identical or confusingly similar to a trademark or service mark in which the Complainant has rights, (ii) the Respondent has no rights or legitimate interests in respect of the disputed domain names, and (iii) the disputed domain names have been registered and are being used in bad faith. The Panel finds that all three of these elements have been met in this case.
A. Identical or Confusingly Similar
This element requires the Panel to consider two issues: first, whether the Complainant has rights in a relevant mark; and, second, whether the disputed domain names are identical or confusingly similar to that mark. This element under the Policy functions primarily as a standing requirement. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.7.
A registered trademark provides a clear indication that the rights in the mark shown on the trademark certificate belong to its respective owner. See Advance Magazine Publishers Inc., Les Publications Conde Nast S.A. v. Voguechen, WIPO Case No. D2014-0657. The Complainant has demonstrated its rights in the FACEBOOK mark by providing evidence of its trademark registrations.
This is a typosquatting case. The disputed domain names are each comprised of plausible ways that an Internet user might accidentally mistype the word “facebook” into a web browser when seeking the Complainant’s services. Mere minor misspellings do not create a new or different mark in which a respondent has rights. America Online, Inc. v. John Zuccarini, also known as Cupcake Message, Cupcake Messenger, The Cupcake Secret, Cupcake Patrol, Cupcake City, and The Cupcake Incident, WIPO Case No. D2000-1495. Instead, the minor misspelling results in a domain name that is confusingly similar to a complainant’s mark. Id. The disputed domain names are, under this standard, confusingly similar to the FACEBOOK mark.
The Complainant has established this first element of the Policy.
B. Rights or Legitimate Interests
The Panel evaluates this element of the Policy by first looking to see whether the Complainant has made a prima facie showing that the Respondent lacks rights or legitimate interests in respect of the disputed domain names. If the Complainant makes that showing, the burden of production of demonstrating rights or legitimate interests shifts to the Respondent (with the burden of proof always remaining with the Complainant).
On this point, the Complainant asserts, among other things, that (1) the Respondent is not a licensee of the Complainant, nor has it been otherwise authorized or allowed by the Complainant to make any use of the FACEBOOK trademark, in a domain name or otherwise, (2) the Respondent cannot assert that, prior to any notice of this dispute, it was using, or had made demonstrable preparations to use, the disputed domain names in connection with a bona fide offering of goods or services in accordance with paragraph 4(c)(i) of the Policy, (3) the Respondent cannot credibly claim that it is commonly known by the disputed domain names, and (4) the Respondent cannot assert that it has made or is currently making a legitimate noncommercial or fair use of the disputed domain names, without intent for commercial gain to misleadingly divert consumers pursuant to paragraph 4(c)(iii) of the Policy.
The Panel finds that the Complainant has made the required prima facie showing. The Respondent has not presented evidence to overcome this prima facie showing. And nothing in the record otherwise tilts the balance in the Respondent’s favor. Accordingly, the Panel finds that the Complainant has established this second element under the Policy.
C. Registered and Used in Bad Faith
The Policy requires a complainant to establish that the disputed domain names were registered and are being used in bad faith. The Policy describes several non-exhaustive circumstances demonstrating a respondent’s bad faith registration and use. Under paragraph 4(b)(iv) of the Policy, a panel may find bad faith when a respondent “[uses] the domain name to intentionally attempt to attract, for commercial gain, Internet users to [respondent’s] website or other online location, by creating a likelihood of confusion with complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [respondent’s] website or location or a product or service on [the respondent’s] website or location”.
Because the Complainant’s FACEBOOK mark is well-known, and was well-known when the disputed domain names were registered, it is implausible to believe that the Respondent was not aware of that mark when it registered the disputed domain names. The case of Facebook Inc. v. Privacy Ltd. Disclosed Agent for YOLAPT, WIPO Case No. D2007-1193 is instructive. The disputed domain name in that case was registered in 2004, only eight months after Facebook launched. The panel therein found it “difficult to imagine” that the respondent registered the disputed domain name by mere coincidence. The same difficulty to imagine is present here. The Panel finds the disputed domain names were registered in bad faith.
The disputed domain names were set to redirect to the Google home page, which creates a presumption of bad faith, see WIPO Overview 3.0, section 3.1.4. Bad faith use is clear from how the Respondent used the disputed domain names to set up customer surveys (see Red Bull GmbH v. Above.com Domain Privacy / Shu Lin, WIPO Case No. D2016-1121). Bad faith use is also established from the evidence that shows the disputed domain names have been used to display pornographic material. See WIPRO Limited v. Batuhan Sarp / Porno, WIPO Case No. D2016-2038, citing Victoria Beckham v. Viktor Pavlenko, WIPO Case No. D2015-0840 (“A user who seeks to access the web site(s) to which the disputed domain name resolves would expect to be taken to a web site at which Complainant’s goods are offered for sale. Instead, the user is taken to various web sites at which adult and/or pornographic services are offered. This is a perfect example of registration and use in bad faith as described in paragraph 4(b)(iv) of the Policy”).
The Panel finds that the Respondent registered and is using the disputed domain names in bad faith. Accordingly, the Panel finds that the Complainant has established this third element under the Policy.
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 names <afcebook.com>, <facbeook.com>, <facebiok.com>, <facebkok.com>, <faceblok.com>, and <facebpok.com> be transferred to the Complainant.
Evan D. Brown
Date: February 9, 2022