Zoom Video Communications, Inc. v. Nanci Nette / Name Management Group
Claim Number: FA2103001939690
Complainant is Zoom Video Communications, Inc. ("Complainant"), represented by Pamela S. Chestek of Chestek Legal, North Carolina, USA. Respondent is Nanci Nette / Name Management Group ("Respondent"), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <zooom.us>, registered with GoDaddy.com, LLC.
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 E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 30, 2021; the Forum received payment on March 30, 2021.
On March 31, 2021, GoDaddy.com, LLC confirmed by email to the Forum that the <zooom.us> 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 the U.S. Department of Commerce's usTLD Dispute Resolution Policy (the "Policy").
On April 2, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 22, 2021 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@zooom.us. Also on April 2, 2021, the Written Notice of the Complaint, notifying Respondent of the email 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 April 27, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 usTLD Dispute Resolution Policy ("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 usTLD Policy, usTLD 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 name be transferred from Respondent to Complainant.
A. Complainant
Complainant provides video teleconferencing services and related software to more than 500 million users worldwide. Complainant has used ZOOM and the <zoom.us> domain name in connection with these services for several years. The popularity of Complainant's services exploded during the COVID-19 pandemic, and Complainant asserts that the ZOOM mark has become famous as a result, providing multiple examples of media coverage in support of that assertion. Complainant owns various trademark registrations for ZOOM and related marks in jurisdictions around the world dating back to 2017. (It appears to the Panel that Complainant's United States trademark application is tied up due to a dispute with the owner of a similar mark. However, Complainant owns valid trademark registrations in other jurisdictions, and the Policy does not require that a mark be registered in the United States.)
The disputed domain name <zooom.us> was created in April 2014; Complainant alleges that it was acquired by Respondent some time after May 7, 2018. (Complainant provides historical whois data from DomainTools indicating that the domain name was owned by a different person on May 7, 2018, and likely was acquired by Respondent between that date and June 11, 2018.) The domain name is being used for a website composed of pay-per-click links, some of which relate to Complainant or to services similar to those offered by Complainant. Complainant states that Respondent is not commonly known by the disputed domain name, is not a licensee or subsidiary of Complainant, and has not been authorized to use Complainant's marks or offer its products or services.
Complainant contends on the above grounds that the disputed domain name <zooom.us> is confusingly similar to its ZOOM mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name is being used 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 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 or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy ("UDRP") and the usTLD Policy, the Panel will draw upon UDRP principles as applicable in rendering its decision.
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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <zooom.us> incorporates Complainant's ZOOM trademark, inserting an additional letter "O" and appending the ".us" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Google LLC v. Edmunds Gaidis, FA 1848950 (Forum July 21, 2019) (finding <gooogle.ro> confusingly similar to GOOGLE); Bloomberg L.P. v. Boo Design Services a/k/a BNY Bulletin Board, FA 97043 (Forum May 17, 2001) (finding <blooomberg.com> confusingly similar to BLOOMBERG); Zoom Video Communications, Inc. v. Host Master / Transure Enterprise Ltd, FA 1921572 (Forum Dec. 23, 2020) (finding <zoomgov.us> confusingly similar to ZOOM). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization, and its sole apparent use has been to display pay-per-click links, including links related to Complainant or competing services. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Google LLC v. Nanci Nette / Name Management Group, FA 1925681 (Forum Feb. 2, 2021) (finding lack of rights or interests arising from use of domain name to display links to websites offering competing goods); Untitled Entertainment, Inc. v. Nanci Nette, FA 1782023 (Forum May 14, 2018) (finding lack of rights or interests arising from use of domain name to display pay-per-click links unrelated to complainant's business).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered or is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] 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 [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent registered or acquired a domain name incorporating a misspelling of Complainant's well-known mark and is using it to display pay-per-click links, some of which relate to Complainant or to competitive services. Such conduct is indicative of bad faith under the Policy. See, e.g., Google LLC v. Nanci Nette / Name Management Group, supra (finding bad faith in similar circumstances). Even if Respondent originally acquired the domain name innocently, for reasons unrelated to Complainant and its mark, there is sufficient and unchallenged evidence that Respondent is using the domain name in bad faith. Under the usTLD Policy it suffices for Complainant to show either registration or use in bad faith (unlike the UDRP, in which the bad faith requirement is set forth in the conjunctive). See Jukin Media, Inc. v. Devid Aloevss, FA 1563209 (Forum July 3, 2014). Furthermore, the Panel is persuaded that Respondent's use of the disputed domain name is intentionally targeted at Complainant and its mark, taking into account the fame of Complainant's mark; the nature of the pay-per-click links on Respondent's website; the similarity between the disputed domain name and Complainant's <zoom.us> domain name; and Respondent's history of abusive domain name registrations. See, e.g., Slack Technologies, Inc. v. Registration Private, Domains by Proxy, LLC / Nanci Nette, Name Management Group, DCO2020-0018 (WIPO June 29, 2020) (noting Respondent's pattern of registering domain names that infringe on trademark rights); Licensing IP International S.à.r.l. v. Nanci Nette / Name Management Group, FA 1846772 (Forum July 11, 2019) (same); Veolia Environnement SA v. Nanci Nette, Name Management Group, D2017-1511 (WIPO Sept. 15, 2017) (same). The Panel finds that the disputed domain name is being used in bad faith.
Having considered the three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <zooom.us> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: April 27, 2021
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