WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Cards Against Humanity, LLC v. Registration Private, Domains By Proxy, LLC / Stephen Pearce
Case No. D2017-0984
1. The Parties
The Complainant is Cards Against Humanity, LLC of Chicago, Illinois, United States of America (“United States”), represented by Cowan, DeBaets, Abrahams & Sheppard, LLP, United States.
The Respondent is Registration Private, Domains By Proxy, LLC of Scottsdale, Arizona, United States / Stephen Pearce of Leicestershire, United Kingdom of Great Britain and Northern Ireland (“United Kingdom”).
2. The Domain Name and Registrar
The disputed domain name <cards-against-humanity-game.com> (the “Domain Name”) 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 May 17, 2017. On May 18, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On May 18, 2017, 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 May 22, 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 May 23, 2017.
The Center verified that the Complaint 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 May 29, 2017. In accordance with the Rules, paragraph 5, the due date for Response was June 18, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 22, 2017.
The Center appointed Mathias Lilleengen as the sole panelist in this matter on June 26, 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 manufactures, markets and sells a game named “Cards Against Humanity” (the “Game”). The Game is popular on the Internet, reaching an audience of millions around the world. The Complainant is acknowledged by the gaming industry and the public for its quality and creativity. Since December 2009, the Complainant has continuously used the name “Cards Against Humanity” and its distinctive trade dress consisting of white lettering on a black background, in order to distinguish the Game from card games offered by others.
The Complainant has registered CARDS AGAINST HUMANITY trademarks with the United States Patent and Trademark Office (inter alia, Trademark Registration No. 4,304,905 CARDS AGAINST HUMANITY, registered on March 19, 2013; and Trademark Registration No. 4,623,613 CARDS AGAINST HUMANITY A PARTY GAME FOR HORRIBLE PEOPLE, registered on March 12, 2013). The Complainant has its main web page at “www.cardsagainsthumanity.com”.
The Complainant controls the use of the trademarks, as well as distribution of authorized goods under its trademarks. No parties other than the Complainant may design, manufacture or market the Game. Legitimate copies of the cards and other products comprising the Game may be purchased directly from the Complainant, from the Complainant’s official Amazon pages, or through licensed United States game stores in the Complainant’s United States wholesale program.
The Domain Name was registered on October 28, 2016. At the time of filing of the Complaint, and at the time of drafting this decision, the Domain Name resolved to a website that features the CARDS AGAINST HUMANITY trademark. The webpage purports to sell the Game, starter packs, expansion packs, boxes, special editions, and bundles. The overall look of the webpage is similar to the Complainant’s webpage. The Respondent’s webpage also offers for sale various unauthorized card storage cases and boxes printed with phrases. The Respondent webpage states: “Yes We Are Promoting Products by ‘Cards Against Humanity LLC[.]’”. At the bottom of the same webpage it states: “[…], But Sadly We Are Not Not [sic] Directly Affiliated In Any Way Whatsoever with ‘Cards Against Humanity LLC’”.
5. Parties’ Contentions
The Complainant argues that its Game is recognized and relied upon by the relevant consuming public as indications of high quality goods originating exclusively from the Complainant. The Complainant’s trademark CARDS AGAINST HUMANITY is famous around the world. The Complainant moves on to argue that the Domain Name is identical to the Complainant’s trademark as it incorporates the entirety of the Complainant’s trademark.
The Complainant argues that the Respondent is not licensed or otherwise authorized to use the Complainant’s trademark. There is no evidence that the Respondent has any rights or legitimate interests in the Domain Name. The Complainant states that the Respondent has no connection or affiliation with the Complainant, its affiliates, or any of the many products provided by the Complainant. According to the Complainant, the Respondent is not using the Domain Name in connection with any bona fide offering of goods or services. On the contrary, the Respondent uses the Domain Name to misdirect or “bait” Internet users seeking the Complainant’s products to its own site, where the Respondent offers to sell Complainant’s merchandise. Moreover, the Complainant sees no evidence that would indicate that the Respondent is commonly known by any of the Complainant’s trademarks.
As to bad faith, the Complainant argues that the Respondent must have been aware of the Complainant’s rights and trademarks at the time of the registration of the Domain Name. Further, the Respondent uses the Domain Name to divert Internet users from the Complainant’s website by creating a likelihood of confusion with the Complainant, trading off the Complainant’s trademarks and reputation by creating a false impression of association between the Complainant and the Respondent. Using the confusingly similar Domain Name to redirect web users away from the Complainant’s website is evidence of bad faith. The Complainant underlines that the Respondent’s actions will damage the Complainant and its trademarks. To the Complainant, it is clear that the Respondent is using the Domain Name to attract, for commercial gain, Internet users to the Respondent’s website by creating a likelihood of confusion.
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 registered trademark rights in CARDS AGAINST HUMANITY.
For the purpose of assessing confusing similarity under paragraph 4(a)(i) of the Policy, it is permissible for the Panel to ignore the generic Top-Level Domain (“gTLD”) “.com”. Save the gTLD, the hyphens and the term “game”, which do not alleviate its confusing similarity, the Domain Name is identical to CARDS AGAINST HUMANITY.
The Panel finds that the Domain Name is confusingly similar 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 a domain name containing its trademark or otherwise make use of its mark. Based on the evidence, the Respondent is not affiliated or related to the Complainant in any way, and there is no evidence on the record to show that the Respondent is generally known by the Domain Name.
The Respondent is using the Domain Name for what seems to be unauthorized sale of original CARDS AGAINST HUMANITY products, as well as some competing and unauthorized products. Such use of the Domain Name is not considered to be a bona fide offering of goods or services nor a legitimate noncommercial or fair use. See, e.g., Burberry Limited. v. Kang Kyungnam, WIPO Case No. D2006-0186: “Even if Respondent is selling genuine goods bearing the Complainant’s trademark on the website, the Panel finds that such a resale activity does not confer the Respondent any proprietary rights in the Complainant’s trademark.”).
The Panel finds that the Complainant has made out a prima facie case not rebutted by the Respondent. 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 Panel finds that the Respondent must have been aware of the Complainant’s trademark and its business when the Respondent registered the Domain Name. This is underlined by the facts that the Domain Name reproduces the Complainant’s trademark in full and that the Respondent offers for sale products bearing the Complainant’s trademark.
The Panel finds that on the balance of probabilities the Respondent registered and is using the Domain Name to divert Internet users from the Complainant’s website by creating a likelihood of confusion with the Complainant’s trademarks. The Respondent’s insertion of the text at the bottom of the website: “[…], But Sadly We Are Not Not [sic] Directly Affiliated In Any Way Whatsoever with ‘Cards Against Humanity LLC’” does not change this fact. The text is not prominent on the webpage and, in accordance with the unrebutted contentions made by the Complainant, the Respondent seems not to be legitimately providing the Complainant’s goods. The text may be read as an admission by the Respondent that Internet users are confused, and it suggests therefore rather bad than good faith. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview3.0”), section 3.7.
The finding is supported by the fact that the Respondent has not responded to the Complaint.
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 the paragraph 4(a)(iii) of 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 Domain Name, <cards-against-humanity-game.com>, be transferred to the Complainant.
Date: July 3, 2017