The Complainant is Rovio Entertainment Corporation, Finland, represented by Roschier Brands, Attorneys Ltd., Finland.
The Respondent is baobin chi, China.
The disputed domain name <angrybirdsite.com> (“Disputed Domain Name”) is registered with GoDaddy.com, LLC (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 24, 2021. On March 24, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 25, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on March 26, 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 March 29, 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 March 31, 2021. In accordance with the Rules, paragraph 5, the due date for Response was April 20, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 28, 2021.
The Center appointed Kar Liang Soh as the sole panelist in this matter on May 12, 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.
The Complainant is a mobile-first games company that creates, develops and publishes mobile games, including a popular mobile game under the ANGRY BIRDS trademark in 2009. The Complainant licenses the ANGRY BIRDS brand for consumer products, movies, animations and other entertainment, and holds a portfolio of mobile games and animation series including The ANGRY BIRDS Movie (premiered in 2016) and its sequel, The ANGRY BIRDS Movie 2 (released in 2019).
The Complainant is headquartered in Espoo, Finland and is listed on the main list of NASDAQ Helsinki under the trading code ROVIO. The revenue of the Complainant’s group of companies amounted to EUR 289.1 million in 2019. As of the end of 2020, the Complainant had 480 employees spread across Espoo (Finland), Stockholm (Sweden), Copenhagen (Denmark), Montreal (Canada) and other locations in the United Kingdom, China and the United States of America.
The Complainant owns many registrations for the ANGRY BIRDS trademark around the world including:
|
Jurisdiction |
Registration No. |
Registration Date |
|
European Union |
009861311 |
September 6, 2011 |
|
China |
11115658 |
November 14, 2013 |
The trademark ANGRY BIRDS is well-known and one of the most famous computer game brands in the world. On November 30, 2012, the Opposition Division of the EUIPO held (opposition no B1909547) that the ANGRY BIRDS trademark is globally known and is associated with high value.
Not much is known of the Respondent beyond the WhoIs information and Registrar verification provided in this proceeding. The Respondent appears to be an individual resident in the Fujian province of China. The address of the Respondent in the WhoIs details provided by the Registrar is incomplete and the Respondent cannot be reached by courier or normal mail.
The Disputed Domain Name was registered on May 6, 2020. As of March 24, 2021, the Disputed Domain Name resolved to a website featuring substantial pornographic content and numerous banners purporting to promote pornographic, sexual and gambling services. The website is no longer available.
The Complainant contends that:
a) The Disputed Domain Name is identical or confusingly similar to the trademark ANGRY BIRDS in which the Complainant has rights. The Disputed Domain Name contains the trademark ANGRY BIRDS at its beginning.
b) The Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. The Respondent did not have rights or legitimate interests to the Disputed Domain Name and did not register it as a trademark, service mark or company name anywhere in the world at the time of applying for registration of the Disputed Domain Name. The Complainant has not licensed its trademark ANGRY BIRDS or otherwise permitted the Respondent to register the Disputed Domain Name. There is no relationship between the Complainant and the Respondent.
c) The Disputed Domain Name was registered and is being used in bad faith. Pornographic content on the Respondent’s website is itself sufficient to support a finding of bad faith, irrespective of the Respondent’s motivation. The pornographic content tarnishes the reputation of the well-known trademark ANGRY BIRDS. The Respondent has hidden his name and disclosed only the province and country of his contact details in the WhoIs information. Insufficient WhoIs information is proof of bad faith.
The Respondent did not reply to the Complainant’s contentions.
The Panel is satisfied on the evidence tendered in this proceeding that the Complainant owns rights in the trademark ANGRY BIRDS. The Disputed Domain Name patently incorporates the trademark ANGRY BIRDS in its entirety. The suffix letters “ite” essentially sets the Disputed Domain Name up to be read as “angry bird site” (or “angry birds site” as the probable typographical intention). The Panel is of the view that the descriptive effect of the suffix letters does nothing to distinguish the Disputed Domain Name from the trademark ANGRY BIRDS and does not prevent any finding of confusing similarity between them. Therefore, the Panel determines that the Disputed Domain Name is confusingly similar to the trademark ANGRY BIRDS within the meaning of the first limb of paragraph 4(a) of the Policy.
The Panel accepts the uncontroverted assertions of the Complainant that the Complainant has neither licensed nor permitted the Respondent to use or register the Disputed Domain Name. The Complainant has denied any association with the Respondent. There is no evidence before the Panel that the Respondent owns any trademark registrations for the Disputed Domain Name anywhere in the world. The content of the website resolved from the Disputed Domain Name cannot by any manner of imagination be excused as bona fide and legitimate non-commercial use. As such, the Panel concludes that the Complainant has made out a prima facie case that the Respondent lacks rights or legitimate interests in the Disputed Domain Name. Such prima facie case, in the absence of a Response, stands unrebutted and the second limb of paragraph 4(a) of the Policy is accordingly established.
Paragraph 4(b)(iv) of the Policy outlines a non-exhaustive but common example of bad faith registration and use of a domain name. It states:
“by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.”
The Panel is satisfied on the evidence that the trademark ANGRY BIRDS is well-known for purposes of the Policy. The Panel also agrees with the Complainant that the Respondent must have registered the Disputed Domain Name with full awareness of the trademark ANGRY BIRDS.
It is therefore inconceivable that the Respondent could have selected the Disputed Domain Name for any purpose other than to attract Internet users to the website resolved from the Disputed Domain Name. Internet users would in all likelihood be confused by the similarity of the Disputed Domain Name to the trademark ANGRY BIRDS as to the source, sponsorship, affiliation, or endorsement of the website resolved from the Disputed Domain Name. The various services promoted by numerous banners on the website must have been for commercial gain. On these circumstances alone, the Complainant would have established a case of bad faith registration and use under paragraph 4(b)(iv) of the Policy.
The finding above is further corroborated by the consensus of many past panels that pornographic content on a respondent’s website is in itself sufficient to support a finding of bad faith due to the high risk of tarnishment of a complainant’s well-known trademark, irrespective of the respondent’s motivation (e.g., VIVENDI v. Guseva Svetlana, WIPO Case No. D2018-2631). The Panel respects the view of these past panels and agree that content of the website resolved from the Disputed Domain Name warrants the conclusion of bad faith registration and use in the present circumstances.
At this point, the Panel wishes to make certain observations regarding the Complainant’s submission that a finding of bad faith should also arise from the fact that the Respondent’s name and contact details were concealed prior to the Registrar’s verification. In the seemingly never-ending struggle of trademark owners against cyber-squatters, the latter commonly resort to hiding behind fictitious details and privacy filters to thwart the recovery efforts of the former. Many past panels, some dating from as far back as the early days of the Policy (e.g., TTT Moneycorp Ltd. v. Diverse Communications, WIPO Case No. D2001-0725), have reasoned that such cloak-and-dagger techniques are an obvious cybersquatting calling-card and accordingly evidences bad faith. Such reasoning, although sound on the face in the past, may have to take into account recent developments in technology, best practices and policy. The world is progressing inexorably into a new information age where data has become an increasingly valuable commodity. The WhoIs databases are a public treasure trove of personal and business data which fall easy prey to web-crawlers and data-scraping bots, unfortunately exposing WhoIs details of domain name holders to abuse (e.g., spam, cyberstalking, identity theft). Following high profile data hacking incidents in recent times, regulators have also entered the fray. Most notably, the General Data Protection Regulation (i.e., GDPR) of the European Union, which took effect in 2018, potentially subjects entities around the world to stiff penalties in the interest of protecting the data of European Union citizens worldwide. Domain name registrars and operators readily offer and recommend free or bundled data privacy services to domain name registrants (many of whom are not cybersquatters) to protect their data. Not surprisingly, domain name registrants buy-in to such services for their own protection.
In the light of these developments, the Panel is of the opinion that the mere fact that the WhoIs details of a respondent are protected by a privacy filter alone cannot be sufficient to support a finding of bad faith within the meaning of the third limb of paragraph 4(a). In addition, section 3.6 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) emphasizes that there are recognized legitimate uses of privacy services. Therefore, the surrounding circumstances must also be considered. Further, ICANN’s Temporary Specification of gTLD Registration Data obliges registrars to operate a Registration Access Data Protocol and to provide UDRP providers like the Center with full registration data upon notification of a complaint. As such, WhoIs details cannot be effectively hidden from proceedings such as the present, and ineffective or fictitious WhoIs details which support a finding of bad faith should become apparent during the course of proceedings.
In the present case, the Panel notes that the address of the Respondent is incomplete. The Respondent has therefore misrepresented that his contact details in the registration agreement are complete and accurate under paragraph 2 of the Policy. Such a situation lends further weight to the finding of bad faith registration and use above.
Accordingly, the Panel finds that the third element of paragraph 4(a) of the Policy is established on the facts.
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 <angrybirdsite.com> be transferred to the Complainant.
Kar Liang Soh
Sole Panelist
Date: May 26, 2021