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November 20, 2015

Porn Tube Loses Disputed Domain Name Arbitration

CYBERSPACE—In a decision handed down on Monday by a panel of arbitrators working for the arbitration company Forum, Tenza Trading Ltd., owner of the adult website PornTube.com, lost its fight against WhoIs Privacy Group and its owner, Maksim Iazynin, over WhoIs Privacy's approval of the domain names porntubemovs.net and porntubegals.net. According to the panelists, Michael Albert, David Sorkin, David P. Miranda, in order for Tenza to successfully challenge the granting of the disputed domains, it would have to prove, under the rules laid down for the governance of the internet, that 1) "the domain name registered by Respondent [WhoIs Privacy] is identical or confusingly similar to a trademark or service mark in which Complainant [Tenza] 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." After considering the submissions from both the complainant and the respondent, the panel had little trouble establishing point 1 above, since all the domains in question contain the phrase "porntube" and the challenged domains are also used for adult entertainment, the same business that PornTube is in. As to point 2, WhoIs Privacy argued that the term "porn tube" is so generic that the disputed domains were not doing anything that dozens of other adult sites had also done in referencing the words "porn tube"—and indeed, a cursory Google search for "porn tube" brings up dozens of sites that use those words in describing their sites' content, though few attempt to use the term in the domain name itself. It is likely that latter fact that allowed the arbitrators to find that, "Respondent has failed adequately to establish that Complainant’s mark is generic. The mark has served to position Complainant as one of the most sought-after content providers on the Internet. It has been registered in the United States and other countries without any successful challenge. It has been the subject of considerable expenditures of resources on advertising and promotion, and has generated hits from customers well into the millions, if not billions, based on the evidence adduced by Complainant." The sticking point, though, was point 3. The panel began discussion of this point by noting that, "Given that genericness was, in essence, Respondent’s core defense in this case, it might appear that Complainant succeeds on the third factor—bad faith—as well, and for the same reasons," but for them, however, that was not the determining factor. "The issue, however, is not so simple," the panel's majority stated. "Bad faith has a subjective component. Even though Respondent has not established the mark’s genericness, that does not necessarily mean that Respondent lacked a good-faith belief in the mark’s genericness at the times either of registration or of use or both." The panel then goes on to discuss how WhoIs Privacy might have thought in "good faith" that "porn tube" was a generic term—that Google search mentioned above might easily lead to that conclusion—even though they state, "We have no doubt that Respondent knew of Complainant and its mark, given the fame thereof and the similarity of the industries in which the two entities operate," but later added, "On the other hand, the above facts would be of little import if Respondent genuinely and in good faith believed the mark to be generic. Here, this Panel, on the present facts, cannot conclude that this claim is implausible," based on the evidence provided by WhoIs Privacy. Therefore, since Tenza had failed to prove, to the panel's satisfaction, all three elements required under the rules to invalidate the targeted domain names, the panel ruled that WhoIs Privacy could continue to use the domains—with one caveat. "It may well be that, in a proceeding in a court of competent jurisdiction, Complainant might be able to establish that Respondent could not plausibly have believed in the genericness defense it raises herein," the panel's majority wrote. " Nothing in this Panel’s decision should be deemed to call into question the possibility of such a conclusion, upon review of all relevant evidence." In other words, the panel was saying that this was an arbitration proceeding, and if Tenza sued in federal court, they very well might win—but that didn't stop two of the panelists, Michael Albert and David Sorkin, from denying Tenza the relief it sought, with panelist David P. Miranda filing a dissent to the ruling. At press time, Tenza attorney Anna Vradenburgh was not available for comment. The complete arbitration panel report can be found here.

 
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