Zynga v. cuma cuma et al.
Claim Number: FA1602001662758
Complainant: Zynga of San Francisco, California, United States of America.
Complainant Representative:
Respondent: cuma cuma of pontianak, Maluku, International, ID.
Respondent Representative:
REGISTRIES and REGISTRARS
Registries: Uniregistry, Corp.
Registrars: PDR Ltd. d/b/a PublicDomainRegistry.com;
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Examiner in this proceeding.
Luz Helena Villamil-Jimenez, as Examiner.
Complainant submitted: February 25, 2016
Commencement: March 4, 2016
Default Date: March 21, 2016
Having reviewed the communications records, the Examiner finds that the Forum has discharged its responsibility under URS Procedure Paragraphs 3 and 4 and Rule 4 of the Rules for the Uniform Rapid Suspension System (the "Rules").
Complainant requests that the domain name be suspended for the life of the registration.
Clear and convincing evidence.
Findings of Fact:
The case at hand refers to the domain <zynga.link> registered by cuma cuma of pontianak, Maluku, International, ID. Complainant contends that The registered domain name <ZYNGA.LINK> is identical to Complainant’s ZYNGA mark, as the toplevel domain “.LINK” is irrelevant in assessing confusing similarity.
In accordance with the provisions of URS, Complainant claims
(i) that the domain name <zynga.link> is identical or confusingly similar to a word mark for which the Complainant holds a valid national or regional registration and that is in current use;
(ii) that The Registrant has no legitimate right or interest to the domain name, and
(iii) that the domain name was registered and is being used in bad faith.
Complainant states that it is the owner of the trademark ZYNGA, registered in several jurisdictions around the world and recorded at the Trade Mark Clearinghouse, and that its rights in the ZYNGA Mark have been recognized in eight (8) UDRP prior decisions.
Even though the Respondent has defaulted, URS Procedure 1.2.6, requires Complainant to make a prima facie case, proven by clear and convincing evidence, for each of the following three elements to obtain an order that a domain name should be suspended:
[URS 1.2.6.1] The registered domain name(s) is/are identical or confusingly similar to a word mark:
(i) for which the Complainant holds a valid national or regional registration and that is in current use; or
(ii) that has been validated through court proceedings; or
(iii) that is specifically protected by a statute or treaty in effect at the time the URS complaint is filed.
Determined: Finding for Complainant
Complainant submitted evidence to demonstrate that it is the owner of the trademark ZYNGA, and that said trademark is in use.
[URS 1.2.6.2] Registrant has no legitimate right or interest to the domain name.
Determined: Finding for Complainant
The Examiner concurs with the Complainant in that the disputed domain name “zynga.link” identically reproduces the registered trademark ZYNGA. Moreover, since said trademark is registered with the Trademark Clearing House, when registering the domain <zynga.link> the Respondent must have received a notification with the registered mark’s details to inform him about a potential conflict. Going ahead with the registration of the domain name evidences a lack of legitimate right or interest to the domain name, and suggests as well bad faith on the part of the Respondent. Moreover, since Respondent has defaulted, there is no evidence to establish any rights or legitimate interests in respect of the domain name in his favor.
[URS 1.2.6.3] The domain name was registered and is being used in bad faith:
a. Registrant has registered or 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 documented out-of-pocket costs directly related to the domain name; or
b. Registrant has registered the domain name in order to prevent the trademark holder or service mark from reflecting the mark in a corresponding domain name, provided that Registrant has engaged in a pattern of such conduct; or
c. Registrant registered the domain name primarily for the purpose of disrupting the business of a competitor; or
d. By using the domain name Registrant has intentionally attempted to attract for commercial gain, Internet users to Registrant’s web site or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Registrant’s web site or location or of a product or service on that web site or location.
Determined: Finding for Complainant
In the present case, the relevant part of the disputed domain name consists of the word <zynga>, which happens to exactly reproduce the registered trademark ZYNGA owned by the Complainant. The identical reproduction of a distinctive trademark in a domain name is hardly the result of casualty, and does suggest an intention to mislead those who have access to the name by leading them to believe it also belongs to the owner of the registered trademark.
In addition, and even worse, as evidenced in the process the content on the Registrant’s web site (online poker) is confusingly similar to the content made available by the Complainant through the Texas Holdem Poker (which according to the Complainant was called Zynga Poker afterwards, in 2009). Thus, it is imperative to agree with Complainant’s assertion that the Registrant adopted Complainant’s distinctive ZYNGA mark - widely associated with online poker through its Zynga Poker online game - and chose this mark for a website containing links for similar and/or possibly competing services with the intention to take advantage of the goodwill of Complainant’s ZYNGA mark to profit from advertising revenues related to other online poker sites.
After reviewing the Complainant’s submissions, the Examiner determines that
the Complainant has demonstrated all three elements of the URS by a standard of clear and convincing evidence; the Examiner hereby Orders the following domain name be SUSPENDED for the duration of the registration:
<zynga.link>
Luz Helena Villamil Jimenez, Examiner
Dated: March 22, 2016
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