Zoosk, Inc. v. Brock Linen
Claim Number: FA1811001818879
Complainant is Zoosk, Inc. (“Complainant”), represented by Fabricio Vayra of Perkins Coie LLP, District of Columbia, USA. Respondent is Brock Linen (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <zoosknumber.com>, registered with Domainshype.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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 30, 2018; the Forum received payment on November 30, 2018.
On December 4, 2018, Domainshype.com, LLC confirmed by e-mail to the Forum that the <zoosknumber.com> domain name is registered with Domainshype.com, LLC and that Respondent is the current registrant of the name. Domainshype.com, LLC has verified that Respondent is bound by the Domainshype.com, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On December 21, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 10, 2019 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@zoosknumber.com. Also on December 21, 2018, 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 January 14, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Darryl C. Wilson 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 domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant, Zoosk, Inc., uses their mark ZOOSK in connection with online social networking services and computer software. Complainant has rights in the ZOOSK mark based on registration with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 3,476,277, registered July 29, 2008). Respondent’s <zoosknumber.com> domain name is confusingly similar to Complainant’s ZOOSK mark, as the domain name wholly incorporates the mark while adding the descriptive/generic term “number” and generic top-level domain (“gTLD”) “.com.”
Respondent has no rights or legitimate interests in the <zoosknumber.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the ZOOSK mark in any manner. Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent is using the disputed domain name to pass off as Complainant in furtherance of a fraudulent phishing scheme.
Respondent registered and is using the <zoosknumber.com> domain name in bad faith. Respondent attempts to attract, for commercial gain, users to the disputed domain name where it passes off as Complainant in furtherance of phishing. Finally, Respondent had actual knowledge of Complainant’s rights in the ZOOSK mark based on the notoriety of the mark and how Respondent has made use of it.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is Zoosk, Inc. (“Complainant”), of San Francisco, CA, USA. Complainant is the owner of domestic registrations for the mark ZOOSK and related marks. Complainant has continuously used its mark since at least as early as 2008, in connection with its provision of goods and services related to computer and mobile software, social networking, and advertising for dating and online introduction.
Respondent is Brock Linen (“Respondent”), of Delhi, India. Respondent’s registrar’s address is listed as Mumbai, India. The Panel notes that the <zoosknumber.com> domain name was registered on or about July 10, 2018.
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 and is 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Complainant claims rights in the ZOOSK mark based upon registration of the mark with the USPTO (e.g. Reg. No. 3,476,277, registered July 29, 2008). Registration of a mark with the USPTO is sufficient to establish rights in that mark. See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (stating, “Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”). The Panel here finds that Complainant’s registration of the ZOOSK mark with the USPTO is sufficient to establish rights in the mark under Policy ¶ 4a(a)(i).
Complainant next argues Respondent’s <zoosknumber.com> domain name is confusingly similar to the ZOOSK mark, as the domain name wholly incorporates the mark and adds the generic or descriptive term “number” and generic top-level domain (“gTLD”) “.com.” Addition of a generic term and a gTLD is not sufficient to overcome a confusingly similar analysis per Policy ¶ 4(a)(i). See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (Finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i).). Respondent here merely added “.com” and the generic term “number” to Complainant’s mark when registering the disputed domain name. The Panel finds that the disputed domain name is confusingly similar to Complainant’s ZOOSK mark per Policy ¶ 4(a)(i).
Respondent raises no contentions with regards to Policy ¶ 4(a)(i).
The Complainant has proven this element.
The Panel recognizes that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name). The Complainant has met this burden.
Complainant argues that Respondent has no rights or legitimate interests in the <zoosknumber.com> domain name, as Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the ZOOSK mark in any way. Where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by the disputed domain name. See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Additionally, lack of authorization from Complainant to use its mark may be evidence that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii). See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). The WHOIS information of record identifies the owner of the disputed domain name as “Brock Linen” and no information on record indicated Respondent was authorized to register a domain name with Complainant’s mark. The Panel here finds that Respondent has not been commonly known by the <zoosknumber.com> domain name per Policy ¶ 4(c)(ii).
Complainant further argues Respondent’s lack of rights and legitimate interests in the <zoosknumber.com> domain name is demonstrated by its failure to use the name to make a bona fide offering of goods and services or for a legitimate or noncommercial or fair use. Complainant instead contends that the name resolves to a website being used to fraudulently phish for user’s personal information under the guise of offering technical support for Complainant’s business. Use of a domain name to pass off as a complainant in order to phish for users’ personal information is not a use indicative of rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii). See DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (”Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”). Complainant contends the domain name resolves to a website asking users to call a telephone number for technical support for Complainant’s business. The Panel here finds that Respondent does not have rights or legitimate interests in the <zoosknumber.com> domain name per Policy ¶¶ 4(c)(i) or (iii).
Respondent raises no contentions with regards to Policy ¶ 4(a)(ii).
The Complainant has proven this element.
Complainant argues that Respondent’s bad faith is indicated by its use of the <zoosknumber.com> domain name to pass off as complainant to engage in a phishing scheme that collect users’ personal information. Use of a domain name to pass off as a complainant in order to further a phishing scheme may indicate bad faith per Policy ¶ 4(b)(iv). See Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use). Complainant has provided screenshots of the web page associated with the disputed domain name that asks users to call a phone number for technical assistance. The Panel here finds that Respondent is using the disputed domain name in bad faith per Policy ¶ 4(b)(iv).
Further, Complainant argues that Respondent’s use of the <zoosknumber.com> domain name to phish is, in itself, evidence of bad faith. Use of a disputed domain name to obtain users’ personal or sensitive information may demonstrate bad faith per Policy ¶ 4(a)(iii). See Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA1506001625750 (Forum July 17, 2015) (“Respondent uses the <klabzuba-oilgas.com> domain to engage in phishing, which means Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).”). The Panel again notes Complainant’s uncontested contentions that the disputed domain name’s resolving website asks users to call a phone number for technical assistance. The Panel finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(a)(iii).
Respondent raises no contentions with regards to Policy ¶ 4(a)(iii).
The Complainant has proven this element.
As the Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <zoosknumber.com> domain names be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: January 28, 2019
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