Typosquatting is bad enough; creating visual confusion with the use of alternate letters takes it to another level.
Epic Games, Inc. filed a UDRP against the domain name Eplcgames.com. That’s a lower case “L” there, not a capital “i.”
Such letter substitutions can be used for phishing and the installation of malware, as many would confuse the domain with Epicgames.com.
Registered in 2018, the domain was hosted and it’s now disabled at the host’s account.
Final decision: transfer the domain EPLCGAMES.com to the Complainant.
Epic Games, Inc. v. Bermo Fermo / Me Self
Claim Number: FA2105001944754
PARTIES
Complainant is Epic Games, Inc. (“Complainant”), represented by Christopher M. Thomas of Parker Poe Adams & Bernstein LLP, North Carolina, USA. Respondent is Bermo Fermo / Me Self (“Respondent”), Washington, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <eplcgames.com>, registered with GoDaddy.com, LLC.
PANEL
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
David A. Einhorn appointed as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the Forum electronically on May 12, 2021; the Forum received payment on May 12, 2021.
On May 12, 2021, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <eplcgames.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On May 17, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 7, 2021 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@eplcgames.com. Also on May 17, 2021, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On June 14, 2021, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed David
A. Einhorn as Panelist.
Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) “to employ reasonably available means calculated to achieve actual notice to Respondent” through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum’s Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant, Epic Games, Inc., is a creator, developer, and publisher of video games and related software. Complainant has rights in the EPIC GAMES mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. 2,527,709, registered Jan. 08, 2002). Respondent’s <eplcgames.com> domain name is identical or confusingly similar to Complainant’s EPIC GAMES mark, only differing by changing the “I” in EPIC to a “L” and adding the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <eplcgames.com> domain name as it is not commonly known by the disputed domain name and is neither an authorized user or licensee of the EPIC GAMES mark. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor for any legitimate noncommercial or fair use. Instead, Respondent purports to offer email addresses at the email domains “@eplcgames.com” and “@support.eplcgames.com” to pass off as Complainant and phish for Internet users’ personal information. Additionally, the disputed domain name is a typosquatted version of Complainant’s mark.
Respondent registered and uses the <eplcgames.com> domain name in bad faith. Respondent attempts to pass off as Complainant to confuse Internet users as to the sponsorship of the disputed domain to attract commercial gain for Respondent. The disputed domain name also constitutes typosquatting. Additionally, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the EPIC GAMES mark.
B. Respondent
Respondent failed to submit a Response in this proceeding. The Panel notes that the disputed domain name was registered on December 14, 2018.
FINDINGS and DISCUSSION
Paragraph 15(a) of the Rules instructs this Panel to “decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent’s failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant’s undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Identical and/or Confusingly Similar
Complainant asserts rights in the EPIC GAMES mark through its registration with the USPTO. Registration of a mark with a trademark agency, such as the USPTO, is generally sufficient to demonstrate rights in a mark under Policy ¶ 4(a)(i). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”). Complainant provides evidence of its registration with the USPTO (e.g., Reg. 2,527,709, registered Jan. 08, 2002). Therefore, the Panel finds that Complainant has rights in the EPIC GAMES mark under Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <eplcgames.com> domain name is identical or confusingly similar to Complainant’s EPIC GAMES mark, only differing by changing the “I” in EPIC to a “L”. Previous Panels have held that such a change may not sufficiently distinguish a domain name from a mark per Policy ¶ 4(a)(i). See Intelius, Inc. v. Hyn, FA 703175 (Forum July 5, 2006) (finding the <intellus.com> domain name to be confusingly similar to the complainant’s INTELIUS mark because the domain name differed from the mark by one letter and was visually similar). Thus, the Panel finds that Respondent’s domain name is identical or confusingly similar to Complainant’s EPIC GAMES mark under Policy ¶ 4(a)(i).
Rights or Legitimate Interests
Complainant argues that Respondent has no rights or legitimate interests in the <eplcgames.com> domain name as Respondent is not commonly known by the disputed domain name nor has Respondent been licensed or authorized by the Complainant to use Complainant’s mark. Where a response is lacking, relevant WHOIS information can be used as evidence to show a respondent is or is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent lacks rights or legitimate interests in a disputed domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). The Panel notes that the WHOIS of record identifies the Respondent as “Bermo Fermo / Me Self” and no information in the record indicates that Respondent was authorized to use Complainant’s mark or was commonly known by the disputed domain name. Therefore, the Panel finds that Respondent has no rights or legitimate interests in the <eplcgames.com> domain name as Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Complainant also argues that Respondent does not use the <eplcgames.com> domain name for any bona fide offering of goods or services, nor for any legitimate noncommercial or fair use, instead supposedly allowing Internet users to obtain email addresses with the email domains “@eplcgames.com” and “@support.eplcgames.com”. Such use of a disputed domain name displays intent to divert and confuse Internet users as to the affiliation of the disputed domain name with the Complainant, which can be neither a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Ripple Labs Inc. v. NGYEN NGOC PHUONG THAO, FA 1741737 (Forum Aug. 21, 2017) (“Respondent uses the [disputed] domain name to divert Internet users to Respondent’s website… confusing them into believing that some sort of affiliation exists between it and Complainant… [which] is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”). Complainant provides screenshots of the resolving website for the disputed domain name as evidence of Respondent’s use. Therefore, the Panel finds that Respondent lacks rights and legitimate interests in the disputed domain under Policy ¶¶ 4(c)(i) or (iii).
Additionally, Complainant claims that the <eplcgames.com> domain name qualifies as typosquatting. Introducing typographical errors to a domain name which includes another’s trademark displays a lack of rights under Policy ¶ 4(a)(ii). See Webster Financial Corporation and Webster Bank, National Association v. Pham Dinh Nhut, FA1605819 (Forum Apr. 17, 2015) (“Respondent’s acts of typosquatting provide additional evidence that respondent lacks rights and legitimate interests in the disputed domain names pursuant to Policy ¶ 4(a)(ii).”). The Panel agrees that the instant domain name qualifies as typosquatting, and finds that Respondent lacks rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).
Thus, Complainant has also satisfied Policy ¶ 4(a)(ii).
Registration and Use in Bad Faith
Complainant argues that Respondent registered and uses the <eplcgames.com> domain name in bad faith as Respondent attempts to pass off as Complainant to confuse Internet users as to the sponsorship of the disputed domain to attract commercial gain for Respondent. Use of an infringing domain name to divert Internet users and likely profit qualifies as bad faith attraction to commercial gain pursuant to Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting). As previously described, Complainant provides screenshots of the resolving website for the disputed domain as evidence of Respondent’s bad faith use. The Panel agrees that Respondent uses the disputed domain name to obtain commercial gain, and finds bad faith under Policy ¶ 4(b)(iv).
Complainant also argues that the <eplcgames.com> domain name constitutes typosquatting, which is further indicative of bad faith. The inclusion of typographical errors in a domain name involving another’s trademark qualifies as bad faith under Policy ¶ 4(a)(iii). See Homer TLC, Inc. v. Artem Ponomarev, FA1506001623825 (Forum July 20, 2015) (“Finally, under this head of the Policy, it is evident that the <homededpot.com> domain name is an instance of typosquatting, which is the deliberate misspelling of the mark of another in a domain name, done to take advantage of common typing errors made by Internet users in entering into a web browser the name of an enterprise with which they would like to do business online. Typosquatting is independent evidence of bad faith in the registration and use of a domain name.”). Therefore, the Panel finds that typosquatting exists in the present case, and finds bad faith under Policy ¶ 4(a)(iii).
Additionally, Complainant argues that Respondent registered the <eplcgames.com> domain name with actual knowledge of Complainant’s EPIC GAMES mark. Per Policy ¶ 4(a)(iii), actual knowledge of another’s trademark rights when registering the disputed domain name is sufficient to demonstrate bad faith, and can be established by the fame of a mark and the use Respondent makes of a disputed domain. See iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum Jan. 1, 2018) (“Respondent’s prior knowledge is evident from the notoriety of Complainant’s BITFINEX trademark as well as from Respondent’s use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant”). Here, Complainant claims to have established itself as a well-known video game developer, and that Respondent uses the disputed domain name to offer email addresses with the disputed domain. The Panel agrees that these circumstances indicate that actual knowledge was present, and finds bad faith under Policy ¶ 4(a)(iii).
Thus, Complainant has also satisfied Policy ¶ 4(a)(iii).
DECISION
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <eplcgames.com> domain name be TRANSFERRED from Respondent to Complainant.
David A. Einhorn, Panelist
Dated: June 29, 2021
