The UDRP filed against the aged domain Playhouse.com didn’t end well for the Complainant. Playhouse International Pty Ltd, Australia launched its adult content business in 2020 and attempted to usurp the domain name via the UDRP process.
The domain’s Canadian registrant noted that the domain was acquired for a “substantial sum” due to its generic qualities, or to launch a business, denying being aware of or targeting the Complainant.
It’s interesting to point out that the Complainant sent an unsolicited offer of $250,000 dollars using the anonymous service provided by the Domain Agents. The Respondent considered the offer of no interest and did not engage in negotiations.
The WIPO panelist noted that the Complainant made unsubstantiated claims regarding the mark’s date of establishment; due to the generic nature of the domain’s keyword he denied the Complainant’s request. Furthermore, the sole panelist declared a finding of Reverse Domain Name Hijacking.
ARBITRATION AND MEDIATION CENTER
ADMINISTRATIVE PANEL DECISION
Playhouse International Pty Ltd v. Stephen Marshall, Stephen Marshall
Case No. D2023-38841. The Parties
Complainant is Playhouse International Pty Ltd, Australia, represented by Hayden O’Halloran, Australia.
Respondent is Stephen Marshall, Stephen Marshall, Canada.2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with Tucows Inc. (the
“Registrar”).3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 17,
2023. On September 18, 2023, the Center transmitted by email to the Registrar a request for registrar
verification in connection with the Domain Name. On September 18, 2023, 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 (Contact Privacy Inc. Customer 0162779993) and contact
information in the Complaint. The Center sent an email to Complainant on September 20, 2023, providing
the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an
amendment to the Complaint. Complainant filed an amendment to the Complaint on the same day.
The Center verified that the Complaint together with the amendment to 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 Respondent of the Complaint,
and the proceedings commenced on September 21, 2023. In accordance with the Rules, paragraph 5, the
due date for Response was October 15, 2023. The Response was filed with the Center on October 3, 2023.
The Center appointed Robert A. Badgley as the sole panelist in this matter on October 12, 2023. 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
Complainant is an Australian company incorporated in July 2022. Complainant operates an online
subscription service where subscribers can post content and view the content posted by other subscribers.
It appears, from the unsolicited media coverage annexed to the Complaint, that the lion’s share of the
content posted is adult in nature.According to Complainant’s Instagram page (a screenshot of which is annexed to the Complaint),
Complainant is “a subscription social platform free of overbearing censors that puts creators first.”
Complainant also bills itself as “an “OnlyFans Alternative…With Fewer Restrictions.” According to this
screenshot, Complainant has 1,104 Instagram followers.
Complainant holds three domain names for its online business: (registration date not
known from the record); (registered on October 5, 2021); and (registered on October 6, 2021).According to Complainant:
“Since the inception of its operations in 2020, the Complainant has continuously and exclusively utilized the
trade name “PlayHouse”, thereby fostering a brand that has come to be well-entrenched and highly regarded
in the relevant market sectors. Through strategic and sustained efforts, the Complainant has embarked on a
comprehensive campaign to elevate the “PlayHouse” brand to a position of prominence, leveraging a
multifaceted approach that encompasses extensive media engagement and the astute deployment of a
variety of domain names, inclusive of “PlayHouse.fans’ and its cognate variations. The fruits of these
laborious endeavors are manifest in the substantial recognition and goodwill that the “PlayHouse” brand has
garnered, both on domestic and international fronts, a narrative vividly illustrated through a plethora of media
mentions and features in preeminent media outlets spanning continents from Australia to Asia, and
traversing countries including but not limited to the USA, the UK, Canada, and Mexico. This rich tapestry of
media engagement, meticulously documented in Annex 5, stands as irrefutable testimony to the potent
reputation and significant consumer brand recognition intricately associated with the Complainant’s name,
thereby establishing a formidable foundation for the Complainant’s claim to the disputed domain name.”
According to Complainant, its unregistered mark PLAYHOUSE has been “actively and exclusively utilized
since 2020 to delineate the Complainant’s services.”As noted above, Complainant alleges that its “operations” began in 2020, but the record lacks evidence that
it conducted any business under the alleged mark PLAYHOUSE in 2020. According to one online article
annexed to the Complaint (an August 15, 2022 Spanish-language article, for which Respondent provided a
translation, in Indigo Live), Complainant conceived of the idea of a platform to compete with Only Fans in
October 2021.The earliest article annexed to the Complaint is a June 16, 2022, article in Vice.com, which describes
complainant as a “start-up” business that was “recently launched.” According to this article, Complainant’s
PlayHouse business is “a way better, way more pro-sex-worker version of onlyFans.”
An August 18, 2022, Daily Star online article, also annexed to the Complaint, describes Complainant’s
PlayHouse business, as a “new sexual content platform that’s even raunchier than OnlyFans.”
A February 17, 2023, XBIZ article states: “PlayHouse has launched its new adult premium social media
platform.”The Domain Name was first registered on August 2, 1995. Of relevance to the disposition of this case,
Respondent acquired the Domain Name on October 11, 2021.
Complainant asserts that Respondent is “a significant competitor to the Complainant,” but offers no evidence
at all about Respondent or its business activities, if any.The Domain Name has never resolved to a fully developed website. Rather, as of September 21, 2023, it
resolved to a parking page with hyperlinks including “Pool Becken,” “Spielgeräto Őffentlicher Bereich,” and
“An Android App.” According to Wayback Machine (www.archive.org) screenshots annexed to the
Complaint, on June 14, 2019, and January 1, 2020, the Domain Name resolved to a landing page
announcing that the Domain Name was available for sale. (Annexed to the Complaint is a screenshot
indicating that Respondent has sought as much as USD 250,000 to sell the Domain Name.)
Respondent states in a sworn declaration annexed to the Response:“I am a domain name investor and website business developer. I have been investing in domain names and
building website business for about 20 years. I have never before been the subject of a UDRP proceeding. I
generally only invest in descriptive one-word and two-word generic and descriptive terms. I currently have
about fifty high quality and high value descriptive domain names that are comparable to the disputed Domain
Name. I purchased the Domain Name as an investment or to develop into a website business, for a
substantial sum. I was attracted to the Domain Name because it was a premium dictionary word domain
name that I could lawfully use for a future business or possibly sell one day to a new entrant to the market
looking for a suitable domain name.”“At no time prior to the commencement of this UDRP proceeding had I ever been aware of the Complainant,
its domain names, or its business. Even when DomainAgents contacted me out of the blue, DomainAgents
never revealed to me who it was acting for. The anonymous offer of USD 250,000 which I received from
DomainAgents was of no interest to me because of the substantial sum that I had paid for this premium
Domain Name and also because I purchased it with the intention of developing it one day for a business.”
“At no time have I ever used the Domain Name in a manner to target or to otherwise infringe upon the rights
of the Complainant.”In further correspondence between the Parties following the initiation of this proceeding, Complainant
contended that the fact that the Domain Name was registered five days after Complainant’s registration of
and four days after Complainant’s registration of “underscores the
nature of the respondent’s bad faith actions.”According to Wayback Machine screenshots annexed to the Response, the first time a website appeared at
Complainant’s address was December 25, 2021, and the first time any site appeared at
was October 7, 2022.5. Parties’ Contentions
A. Complainant
Complainant contends that it has established all three elements required under the Policy for a transfer of
the Domain Name.B. Respondent
Respondent’s main contention is that it acquired the Domain Name before Complainant began to use the
alleged PLAYHOUSE mark, and certainly before that mark achieved any notoriety (if it has achieved same at
all).
Respondent also asks the Panel to make a finding of Reverse Domain Name Hijacking (“RDNH”) against
Complainant, arguing, among other things, that Complainant should have known that its UDRP Complaint
was doomed to fail.6. Discussion and Findings
Paragraph 4(a) of the Policy lists the three elements which Complainant must satisfy with respect to the
Domain Name:
(i) the Domain Name is identical or confusingly similar to a trademark or service mark in which
Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
Contrary to Complainant’s statement that its alleged trademark PLAYHOUSE enjoys a “potent reputation
and significant consumer brand recognition intricately associated with the Complainant’s name,” the Panel
does not accept that bald and unsupported allegation. The Panel concludes, however, that Complainant has
proven, through evidence of use and some unsolicited media recognition demonstrated in the record, that it
has established, since 2022, common law rights in the trademark PLAYHOUSE. The Panel also concludes
that the Domain Name is identical to that mark.
Complainant has established Policy paragraph 4(a)(i).B. Rights or Legitimate Interests
Pursuant to paragraph 4(c) of the Policy, Respondent may establish its rights or legitimate interests in the
Domain Name, among other circumstances, by showing any of the following elements:
(i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to
use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering
of goods or services; or
(ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by
the Domain Name, even if you have acquired no trademark or service mark rights; or
(iii) you [Respondent] are making a legitimate noncommercial or fair use of the Domain Name, without
intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at
issue.
The Panel need not consider this element, given its conclusion below in the “Bad Faith” section.C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides that the following circumstances, “in particular but without limitation,”
are evidence of the registration and use of the Domain Name in “bad faith”:
(i) circumstances indicating that Respondent has registered or has acquired the Domain Name primarily
for the purpose of selling, renting, or otherwise transferring the Domain Name registration to Complainant
who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable
consideration in excess of its documented out of pocket costs directly related to the Domain Name; or
(ii) that Respondent has registered the Domain Name in order to prevent the owner of the trademark or
service mark from reflecting the mark in a corresponding domain name, provided that Respondent has
engaged in a pattern of such conduct; or(iii) that Respondent has registered the Domain Name primarily for the purpose of disrupting the business
of a competitor; or
(iv) that by using the Domain Name, Respondent has intentionally attempted 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 of a product or service on Respondent’s website or location.
The Panel concludes that Complainant has not come close to establishing that Respondent has registered
and used the Domain Name in bad faith. First, the evidence presented here tends to suggest that
Respondent acquired the Domain Name before Complainant had made any use (and almost certainly any
meaningful use) of the PLAYHOUSE mark. Respondent’s explanation for his motives and plans vis-à-vis the
Domain Name are plausible, and are essentially uncontradicted in this record, and his denial of any
knowledge of Complainant or the PLAYHOUSE mark is equally plausible. The word “playhouse” is a
common word, and, as Respondent points out with search results, the term is widely used in its ordinary
sense and having nothing to do with Complainant’s relatively new business.
Respondent’s expressed desire to sell this valuable Domain Name for profit does not constitute bad faith
here, given the lack of evidence of targeting Complainant’s mark and, again, the fact that “playhouse” is a
common word.If Respondent is a competitor of Complainant and registered the Domain Name with a bad faith motivation, it
has not been shown on the record here.Given the foregoing, there can be no bad faith registration and use, and the Complaint must fail.D. Reverse Domain Name Hijacking (“RDNH”)
The Panel finds that Complainant has committed RDNH. The Complaint, while eloquently composed, is
replete with hyperbole and unsupported claims.First, Complainant misstates (at best) the timing of its first use of the PLAYHOUSE mark as a source
identifier for its online subscription services. All the evidence presented in this case suggests that there was
no such use of the mark in 2020, which is Complainant’s repeated claim. Complainant should have known
perfectly well when it first launched a website using its PLAYHOUSE mark, which appears to have been after
the Domain Name was registered.Second, Complainant makes spurious allegations against Respondent, without even trying to support them.
For instance, Complainant asserts that Respondent is its “significant competitor,” but offers not a shred of
evidence to support this claim.7. Decision
For the foregoing reasons, the Complaint is denied. Complainant has engaged in Reverse Domain Name
Hijacking./Robert A. Badgley/
Robert A. Badgley
Sole Panelist
Date: October 17, 2023
