Early Warning Services, LLC v. Dekari Wright
Claim Number: FA2012001923348
Complainant is Early Warning Services, LLC (“Complainant”), represented by George C. Chen of Bryan Cave Leighton Paisner LLP, United States. Respondent is Dekari Wright (“Respondent”), United States.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <zellepays.us> and <zelle-pays.us>, registered with NameCheap, Inc.
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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 1, 2020. The Forum received payment on December 1, 2020.
On December 1, 2020, NameCheap, Inc. confirmed by e-mail to the Forum that the <zellepays.us> and <zelle-pays.us> domain names are registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the usTLD Dispute Resolution Policy (the “usDRP” or the “Policy”) adopted by the United States Department of Commerce (“DOC”).
On December 2, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 22, 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@zellepays.us, postmaster@zelle-pays.us. Also on December 2, 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 Alan L. Limbury 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 the usTLD 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 usDRP, the 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 domain names be transferred from Respondent to Complainant.
A. Complainant
Complainant, Early Warning Services LLC, operates a digital payment network. Complainant has rights in the ZELLEPAY mark based upon registration with the United States Patent and Trademark Office (“USPTO”). The <zellepays.us> and <zelle-pays.us> domain names are confusingly similar to the ZELLEPAY mark.
Respondent has no rights or legitimate interests in the <zellepays.us> and <zelle-pays.us> domain names. Respondent is not commonly known by the domain names and is not authorized to use the ZELLEPAY mark. Further, Respondent does not have rights in any marks similar to the domain names. Additionally, Respondent and is not making a bona fide offering of goods or services via the domain names, nor a legitimate noncommercial or fair use. Instead, Respondent trades off Complainant’s goodwill to divert Internet traffic to an imposter website.
Respondent registered or uses the <zellepays.us> and <zelle-pays.us> domain names in bad faith. Respondent has a history as a cybersquatter and had actual knowledge of Complainant’s rights in the ZELLEPAY mark when it registered the domain names. Respondent trades off Complainant’s goodwill for commercial gain and likely uses the domain names in connection with phishing.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
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."
usDRP ¶ 4(a) provides:
“Applicable Disputes—You are required to submit to a mandatory administrative proceeding in the event that a third party (a “Complainant”) asserts to the applicable Provider, in compliance with the Rules, that:
i. Your domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
ii. You have no rights or legitimate interests in respect of the domain name; and
iii. Your domain name has been registered in bad faith or is being used in bad faith.
In the administrative proceeding, the Complainant must prove that each of these three elements is present.”
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 as 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, as under the UDRP, 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”).
Complainant has shown that it has rights in the ZELLEPAY mark based upon registration with the USPTO, Reg. No. 5,938,276, registered on Dec. 17, 2019 for financial transaction services, namely, providing secure payment and money transfer options and permitting account holders to make payment requests.
The domain names <zellepays.us> and <zelle-pays.us> are confusingly similar to Complainant’s ZELLEPAY mark as they incorporate the mark in its entirety, adding in one case a hyphen and in both cases the letter “s” and the inconsequential “.us” country code top-level domain (“ccTLD”), which may be disregarded.
Complainant has established this element.
usDRP ¶ 4(c) provides:
“Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of Paragraph 4(a)(ii):
i. You are the owner or beneficiary of a trade or service mark that is identical to the domain name;
ii. Before any notice to you 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;
iii. You (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
iv. You 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 notes that Complainant has also shown that, in addition to its ZELLEPAY mark it has rights in the word mark “Zelle” with a stylized letter Z, Reg. No. 5312400, registered with the USPTO on October 17, 2017 (“the Zelle mark”).
The <zelle-pays.us> domain name was registered on September 1, 2020. It is presently inactive. The <zellepays.us> domain name was registered on November 3, 2020. It resolves to a website prominently displaying the Zelle mark and purporting to be the official website of Complainant.
The domain names the subject of this administrative proceeding were registered by Respondent shortly after a Forum decision which ordered transfer from Respondent to Complainant of the domain names <zelle-pay.us>, <zelle-review.us>, <zellepayreview.us>, <zellereview.us>, and <zelleinquiry.us>, all of which Respondent had registered in June, 2020: Early Warning Services, LLC v. Dekari Wright, FA2007001904407 (Forum Aug. 19, 2020).
These circumstances, coupled with Complainant’s assertions, constitute a prima facie case that Respondent lacks rights and legitimate interests in the <zellepays.us> and <zelle-pays.us> domain names under usDRP ¶ 4(a)(ii). Accordingly, as under the UDRP, the burden shifts to Respondent to show he does have rights or legitimate interests. See Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014). Respondent has made no attempt to do so.
In the circumstances of this case, the Panel finds that Respondent has no rights or legitimate interests in respect of the <zellepays.us> and <zelle-pays.us> domain names under usDRP ¶ 4(a)(ii).
Complainant has established this element.
usDRP ¶ 4(b) provides:
“For the purposes of Paragraph 4(a)(1)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration or use of a domain name in bad faith:
i. Circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name;
ii. You have 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;
iii. You have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
iv. By using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on- line location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location."
Given the earlier proceedings successfully brought by Complainant against Respondent, the Panel finds that Respondent was well aware of Complainant’s mark when registering the <zellepays.us> and <zelle-pays.us> domain names and did so in bad faith.
Further, Respondent has intentionally attempted to attract, for commercial gain, Internet users to his <zellepays.us> website, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website and of services promoted on his website.
The Panel is therefore satisfied that Respondent registered the <zellepays.us> and <zelle-pays.us> domain names in bad faith and is also using the <zellepays.us> domain name in bad faith.
Complainant has established this element.
Complainant having established all three elements required under the usDRP, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <zellepays.us> and <zelle-pays.us> domain names be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: December 29, 2020
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