The Complainant is Facebook Inc., United States of America (“United States”), represented by Hogan Lovells (Paris) LLP, France.
The Respondent is Guven Ozdemir, Turkey.
The disputed domain name <facedbooks.com> is registered with Nics Telekomunikasyon A.S. (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 25, 2019. On June 25, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 26, 2019, 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 Registrar confirmed that the language of the registration agreement is in Turkish, whereas the Complaint was submitted in English. On June 27, 2019, The Center sent the Parties a language of proceedings email in which they were invited to substantiate their arguments on the language of proceedings. The Complainant replied to this request on June 28, 2019, arguing in favor of English being the language of proceedings. No response was received from the Respondent.
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 July 4, 2019. In accordance with the Rules, paragraph 5, the due date for Response was July 24, 2019. The Respondent sent an email to the Center on July 13, 2019 but did not submit a formal response. Accordingly, the Center notified the Parties of the commencement of panel appointment on July 25, 2019.
The Center appointed Steven A. Maier as the sole panelist in this matter on July 29, 2019. 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.
As observed in paragraph 4.5 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), panels under the UDRP have identified various scenarios in which the language of the proceedings may be a language other than that of the registration agreement.
In this case, the Complainant requests that the language of the proceedings be English despite the fact that the language of the relevant registration agreement is Turkish. The Complainant makes various submissions in this regard, and in particular exhibits a screen print of the web page to which the disputed domain name resolved on April 9, 2019. That web page is in English and purports to be a log-in page for “facedbooks”, which states “Welcome to our social network – share your memories, connect with others, make new friends”.
The content of a relevant web page being one of the criteria which panels may take into account as referenced above, the Panel finds that the Complainant has established prima facie grounds for the language of the proceeding to be English. The Respondent having made no objection to the Complainant’s request, the Panel directs that the language of the proceeding be English.
The Complainant is a corporation located in California, United States and operates a social networking service from websites including “www.facebook.com”.
The Complainant is the owner of various trademark registrations for the mark FACEBOOK including, for example:
- United States trademark number 3041791 for the word mark FACEBOOK, registered on January 10, 2006
- Turkey trademark number 2017/47534 for the word mark FACEBOOK, registered on November 28, 2017.
The disputed domain name was registered on August 31, 2018.
On April 9, 2019 the disputed domain name resolved to a web page at “www.facedbooks.com” as described in section 4 above.
The Complainant submits that it is the world’s leading provider of online social networking services with over 2.32 billion active monthly users. It states that its website at “www.facebook.com” is the third most visited in the world and the fourth most visited in Turkey, where the Respondent is located. The Complainant provides evidence of numerous registrations for the trademark FACEBOOK worldwide and of its ownership of various generic Top-Level Domains (“gTLDs”) and country code Top-Level Domain (“ccTLDs”) comprising the term “facebook” and the relevant suffix. The Complainant also produces evidence of media recognition of its brand and submits in summary that its trademark FACEBOOK is widely known and exclusively associated with its services.
The Complainant submits that the disputed domain name is identical or confusingly similar to a trademark in which it has rights. It asserts that the disputed domain name <facedbooks.com> is identical to its trademark FACEBOOK but for the insertion of the additional letters “d” and “s”, which it submits amounts to an obvious misspelling or “typosquatting”.
The Complainant submits that the Respondent has no rights or legitimate interests in respect of the disputed domain name. It states that it has never authorized the Respondent to use its FACEBOOK trademark, that the Respondent has not been commonly known by a name corresponding to the disputed domain name and that the Respondent is making neither bona fide commercial use nor legitimate noncommercial or fair use of the disputed domain name. On the contrary, the Complainant contends that the Respondent is using the disputed domain name for the purposes of a misleading website which impersonates the Complainant, as further described below.
The Complainant submits that the disputed domain name was registered and has been used in bad faith. It asserts that, given the notoriety of its FACEBOOK mark and website, it is inconceivable that the Respondent could have registered the disputed domain name without knowledge of that mark. The Complainant also points to the web page to which the disputed domain name resolved (as described in section 4 above) and exhibits a copy of its own corresponding web page. The Complainant submits that the Respondent has closely copied that web page, its web page having the same “look and feel” as the Complainant’s and adopting a “facedbooks” logo which is virtually identical to the Complainant’s own “facebook” logo, which is in itself a registered figurative trademark. The Complainant submits that it is clear from these circumstances that the Respondent has sought misleadingly to attract Internet users to its website by creating a likelihood of confusion with the Complainant’s own trademark and website (paragraph 4(b)(iv) of the Policy). The Complainant further contends that, because the Respondent’s web page requests users’ personal details, it is likely to be associated with a “phishing” scheme.
The Complainant also provides evidence of a “cease and desist” letter sent to the Respondent and submits that the Respondent’s failure to respond to that letter constitutes further evidence of bad faith.
The Complainant requests the transfer of the disputed domain name.
The Respondent did not reply formally to the Complainant’s contentions. However the Complainant has exhibited correspondence received from the Respondent questioning why the Complainant is asking for a transfer of the disputed domain name “for free” and stating that the Respondent is prepared to transfer the disputed domain name in exchange of USD 50 million. The communication also threatens to send the Complainant’s correspondence to “international press and television organizations” if this demand is not met.
In order to succeed in the Complaint, the Complainant is required to show that all three of the elements set out under paragraph 4(a) of the Policy are present. Those elements are:
(i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) that the disputed domain name has been registered and is being used in bad faith.
Even in a case where no formal Response has been filed, the Complainant must still establish that each of the three above elements is present.
The Complainant has established that it is the owner of the registered trademark FACEBOOK and the Panel accepts the Complainant’s submissions that the mark is distinctive of the Complainant and its services. The disputed domain name is identical to the Complainant’s trademark but for the inclusion of the two letters “d” and “s”. The Panel does not consider that the inclusion of these two letters distinguishes the disputed domain name from the Complainant’s trademark but rather suggests a misspelling of the Complainant’s trademark and finds therefore that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights.
In the view of the Panel, the Complainant’s submissions referred to above give rise to a prima facie case for the Respondent to answer that the Respondent has no rights or legitimate interests in respect of the disputed domain name. However, the Respondent has not formally participated in this administrative proceeding and has not provided any explanation for the registration of the disputed domain name or its use as described above, whether in accordance with any of the criteria set out in paragraph 4(c) of the Policy or otherwise. Having no other evidence of any rights or legitimate interests on the Respondent’s part, the Panel concludes that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
In view of the reputation of the Complainant’s trademark and website and the use that the Respondent has made of the disputed domain name, the Panel infers that the Respondent must have been aware of the Complainant’s mark FACEBOOK at the date of registration of the disputed domain name and registered the disputed domain name in order to take unfair advantage of the Complainant’s goodwill attaching to that trademark.
The Panel also accepts the Complainant’s evidence that the Respondent has used the disputed domain name for the purpose of a website which impersonates that of the Complainant and, therefore, that by using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its website or of products or services on its website (paragraph 4(b)(iv) of the Policy).
Further, the Panel considers the Respondent’s communication seeking a payment of USD 50 million in return for the disputed domain name, being a sum clearly in excess of the Respondent’s out-of-pocket costs directly related to the disputed domain name, to be additional evidence of bad faith.
The Panel therefore finds that the disputed domain name has been registered and is being used in bad faith.
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 <facedbooks.com> be transferred to the Complainant.
Steven A. Maier
Sole Panelist
Date: August 12, 2019