Spark Networks Services GmbH v. N Z / Nina Zhai
Claim Number: FA2011001921155
Complainant is Spark Networks Services GmbH (“Complainant”), represented by Perkins Coie LLP, District of Columbia, USA. Respondent is N Z / Nina Zhai (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <silversingles.org>, <silversingleslogin.com>, and <zoosk-seniors.com> (the “disputed domain names”), registered with Name.com, Inc.; GoDaddy.com, LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Lynda M. Braun as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 18, 2020; the Forum received payment on November 18, 2020.
On November 19, 2020; November 22, 2020, Name.com, Inc. and GoDaddy.com, LLC confirmed by e-mail to the Forum that the <silversingles.org>, <silversingleslogin.com>, and <zoosk-seniors.com> disputed domain names are registered with Name.com, Inc. and GoDaddy.com, LLC and that Respondent is the current registrant of the disputed domain names. Name.com, Inc. and GoDaddy.com, LLC have verified that Respondent is bound by the Name.com, Inc. and GoDaddy.com, LLC registration agreements and have thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On November 30, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 21, 2020 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@silversingles.org, postmaster@silversingleslogin.com, and postmaster@zoosk-seniors.com. Also on November 30, 2020, 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 December 28,2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Lynda M. Braun 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.
Complainant requests that the disputed domain names be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: MULTIPLE RESPONDENTS
In the instant proceedings, Complainant has alleged that the entities which control the disputed domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.”
The Panel concludes that the disputed domain names in this proceeding are owned by the same Respondent who has registered multiple domain names as part of an ongoing scheme. The Panel agrees with Complainant that N Z is an alias of Nina Zhai given that the <silversingleslogin.com> and <zoosk-seniors.com> disputed domain names list identical contact information and that the WHOIS information for all three disputed domain names confirms that the registrant has the same address in China. Furthermore, the resolving webpages display similar content, and all disputed domain names redirect to the same third-party website, “www.seniormatch.com”.
A. Complainant
Listed on the New York Stock Exchange, Complainant’s parent company, Spark Networks SE (“Spark Networks”) was formed in 2017 following the merger between Berlin-based Affinitas GmbH and United States-based Spark Networks Inc. Spark Networks also acquired Zoosk, Inc. in 2019. Spark Networks is the world’s second largest publicly listed dating company, with over one million monthly paying subscribers. Spark Networks’ extensive portfolio of dating brands includes Silver Singles and Zoosk, as well as other popular brands such as Elite Singles, Jdate, and Christian Mingle. Complainant’s Silver Singles dating site launched in the United States in 2003 and its Zoosk dating site launched in the United States in 2007.
Complainant has rights in the SILVER SINGLES and ZOOSK trademarks through registration with the United States Patent and Trademark Office (“USPTO”) (e.g., SILVER SINGLES – Reg. No. 3,053,126, registered Jan. 31, 2006; and ZOOSK – Reg. No. 3,476,277, registered Jul. 29, 2008) (hereinafter collectively referred to as the “SILVER SINGLES and ZOOSK Marks”).
Complainant contends that the disputed domain names are confusingly similar to Complainant’s SILVER SINGLES and ZOOSK Marks, that Respondent does not have rights or legitimate interests in the disputed domain names, and that the Respondent registered and is using the disputed domain names in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has registered trademark rights in the SILVER SINGLES and ZOOSK Marks. The disputed domain names are confusingly similar to Complainant’s SILVER SINGLES and ZOOSK Marks. Further, Complainant has established that Respondent lacks rights or legitimate interests in respect of the disputed domain names and that Respondent registered and is using the disputed domain names in bad faith.
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 disputed domain names registered by Respondent is identical or confusingly similar to trademarks or service marks in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the disputed domain names; and
(3) the disputed domain names have been registered and are 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”).
The Panel concludes that the disputed domain names are confusingly similar to the SILVER SINGLES and ZOOSK Marks under Policy ¶ 4(a)(i).
First, the Panel finds that Complainant has rights in the SILVER SINGLES and ZOOSK Marks through its registration of the marks with the USPTO. Registration of a mark with a trademark office, such as the USPTO, is 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., SILVER SINGLES – Reg. No. 3,053,126, registered Jan. 31, 2006; and ZOOSK – Reg. 3,476,277, registered Jul. 29, 2008). Therefore, the Panel finds that Complainant has rights in the SILVER SINGLES and ZOOSK Marks under Policy ¶ 4(a)(i).
Second, the Panel concludes that the disputed domain names are confusingly similar to Complainant’s SILVER SINGLES and ZOOSK Marks. The disputed domain names each incorporate one of the marks in its entirety, merely adding the dictionary or descriptive terms “login” or “seniors” and/or the generic Top-Level Domain (“gTLD”) “.com” or “.org”. The addition of dictionary or descriptive terms and a gTLD does not prevent confusing similarity per Policy ¶ 4(a)(i). See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognizable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.
Accordingly, the Panel finds that Policy ¶ 4(a)(i) has been established by Complainant.
The Panel finds that Respondent has no rights or legitimate interests in the disputed domain names. Under the Policy, Complainant is required to make out a prima facie case that Respondent lacks rights or legitimate interests in the disputed domain names. Once such a prima facie case is made, Respondent carries the burden of demonstrating rights or legitimate interests in the disputed domain names. See Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
In this case, Respondent did not carry its burden to come forward with evidence of its rights or legitimate interests in the disputed domain names as it did not respond to the Complaint, but given the facts of this case, the Panel finds that Respondent would have been hard-pressed to furnish availing arguments had it chosen to respond:
Specifically, Respondent is not commonly known by the disputed domain names, Complainant has not authorized, licensed, or otherwise permitted Respondent to use the SILVER SINGLES and ZOOSK Marks and Respondent has no relationship, affiliation, connection, endorsement or association with Complainant.
Furthermore, Respondent fails to use the disputed domain names in connection with a bona fide offering of goods or services, or in connection with a legitimate noncommercial or fair use because the disputed domain names divert Internet users from Complainant’s legitimate website by attempting to pass itself off as Complainant. Passing off as Complainant does not amount to a bona fide offering of goods or services, or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Mortgage Research Center LLC v. Miranda, FA 993017 (Forum July 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Additionally, linking to a direct competitor of Complainant also does not amount to a bona fide offer of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Coryn Group, Inc. v. Media Insight, FA 198959 (Forum Dec. 5, 2003) (finding that the respondent was not using the domain names for a bona fide offering of goods or services nor a legitimate noncommercial or fair use because the respondent used the names to divert Internet users to a website that offered services that competed with those offered by the complainant under its marks).
Accordingly, the Panel finds that Policy ¶ 4(a)(ii) has been established by Complainant.
The Panel finds that, based on the record, the Complainant has demonstrated the existence of Respondent’s bad faith registration and use pursuant to paragraph 4(b) of the Policy.
First, Respondent attracts Internet users for commercial gain by using the disputed domain names to pass itself off as Complainant and also to divert Internet users to competing websites. Passing off as Complainant for commercial gain demonstrates bad faith under Policy ¶ 4(b)(iv). See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”); see also Gardens Alive, Inc. v. D&S Linx, FA 203126 (Forum Nov. 20, 2003) (“Respondent registered and used the <my-seasons.com> domain name in bad faith pursuant to Policy ¶¶ 4(b)(iii) and (iv) because Respondent is using a domain name that is confusingly similar to the MYSEASONS mark for commercial benefit by diverting Internet users to the <thumbgreen.com> website, which sells competing goods and services.”).
Second, the Panel finds bad faith registration and use on part of Respondent under Policy ¶¶ 4(b)(iii) and (iv) since Respondent links to a third-party competing service at “www.seniormatch.com” which requires users to pay and provide personal information to access the platform. Respondent thus disrupts Complainant’s business by creating a likelihood of confusion among Internet users and directing customers intent on using Complainant’s services to Complainant’s competitor. Using a disputed domain name to direct users to a competing service disrupts Complainant’s business interests and demonstrates bad faith pursuant to Policy ¶ 4(b)(iii). See America Online, Inc. v. Tapia, FA 328159 (Forum Dec. 1, 2004) (“Respondent is referring Internet traffic that seeks out the <aol.tv> domain name to a competitor’s news site. The Panel strongly finds that appropriating Complainant’s mark to refer customers seeking Complainant to Complainant’s competitors is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”).
Accordingly, the Panel finds that Policy ¶ 4(a)(iii) has been established by Complainant.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <silversingles.org>, <silversingleslogin.com>, and <zoosk-seniors.com> disputed domain names be TRANSFERRED from Respondent to Complainant.
Lynda M. Braun, Panelist
Dated: January 11, 2021
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