Zynga Inc. v. feramis han / Turkey
Claim Number: FA1810001814091
Complainant is Zynga Inc. (“Complainant”), represented by Peter Kidd of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is feramis han / Turkey (“Respondent”), Turkey.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <farmville-2.com>, registered with Atak Domain Hosting Internet ve Bilgi Teknolojileri Limited Sirketi d/b/a Atak Teknoloji.
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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 29, 2018; the Forum received payment on October 29, 2018.
On November 15, 2018, Atak Domain Hosting Internet ve Bilgi Teknolojileri Limited Sirketi d/b/a Atak Teknoloji confirmed by e-mail to the Forum that the <farmville-2.com> domain name is registered with Atak Domain Hosting Internet ve Bilgi Teknolojileri Limited Sirketi d/b/a Atak Teknoloji and that Respondent is the current registrant of the name. Atak Domain Hosting Internet ve Bilgi Teknolojileri Limited Sirketi d/b/a Atak Teknoloji has verified that Respondent is bound by the Atak Domain Hosting Internet ve Bilgi Teknolojileri Limited Sirketi d/b/a Atak Teknoloji 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 November 13, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 3, 2018 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@farmville-2.com. Also on November 13, 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 December 10, 2018 , pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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, Zynga Inc., is a leading developer of popular online social games. Complainant uses their marks FARMVILLE and FARMVILLE 2, along with several others (hereafter “FARMVILLE marks”) in connection with their online gaming services since 2009. Complainant has rights in the FARMVILLE (e.g. Reg. No. 3,861,880, registered Oct. 12, 2010) and FARMVILLE 2 (e.g. Reg. No. 4,411,983, registered Oct. 1, 2013, filed June 25, 2012) marks based on registration with the United States Patent and Trademark Office (“USPTO”). See Compl. Annex K. Respondent’s <farmville-2.com> domain name is confusingly similar to Complainant’s FARMVILLE marks, as the disputed domain name duplicates the exact mark and adds a hyphen and the generic top-level domain (“gTLD”) “.com.”
Respondent has no rights or legitimate interests in the <farmville-2.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the FARMVILLE marks 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 uses the disputed domain name to generate revenue via pay-per-click advertisements. See Compl. Annex L. Further, Respondent’s use of Complainant’s copyrighted materials without any disclaimer is an attempt to pass off as Complainant. Id.
Respondent registered and is using the <farmville-2.com> domain name in bad faith. It intentionally seeks to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s marks as to the source, sponsorship, affiliation, or endorsement of Respondent’s competing website. See Compl. Annex L. Respondent’s timing in registration of the disputed domain name constitutes opportunistic bad faith. Finally, Respondent had actual knowledge of Complainant’s rights in the FARMVILLE marks at the time it registered the infringing domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding. Respondent registered the disputed domain name on July 2, 2012.
The Panel finds that the disputed domain name is confusingly similar to Complainant’s trademark; that Respondent has no rights or legitimate interests in or to the disputed domain name; and that Respondent has engaged in bad faith use and registration of the disputed domain name.
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.”).
The Panel finds that the dispute domain name, <farmville-2.com>, is confusingly similar to Complainant’s trademark, FARMVILLE. Complainant has adequately plead its rights and interests in and to this trademark. Respondent arrives at the dispute domain name by merely adding a hyphen and the number “2” plus the g TLD “.com” to the trademark. This is insufficient to distinguish the disputed domain name from Complainant’s trademark.
As such, the Panel finds that the dispute domain name is confusingly similar to Complainant’s trademark.
The Panel further finds that Respondent lacks any rights or legitimate interests in or to the disputed domain name. Respondent has no right, permission or license to register the disputed domain name. Respondent is not commonly known by the dispute domain name. Also, 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 uses the disputed domain name to generate revenue via pay-per-click advertisements. See Compl. Annex L. Further, Respondent’s use of Complainant’s copyrighted materials without any disclaimer is an attempt to pass itself off as Complainant. Id.
As such, the Panel finds that Respondent has no rights or legitimate interests in or to the disputed domain name.
The Panel further finds that Respondent has engaged in bad faith use and registration of the disputed domain name. Respondent’s bad faith is indicated by its use of pay-per-click ads in an effort to divert users to third party websites. Use of a domain name to divert internet traffic from a complainant can be evidence of bad faith per Policy ¶ 4(b)(iv). See Google Inc. v. James Lucas / FireStudio / Jameschee / FIRESTUDIO / SEONG YONG, FA1502001605757 (Forum Apr. 7, 2015) (“This Panel agrees that Respondent’s inclusion of advertisements to likely reap click-through fees is an example of bad faith pursuant Policy ¶ 4(b)(iv).”). Complainant provides a screenshot of Respondent’s website, which displays Complainant’s FARMVILLE 2 mark and various images with links to allegedly free products associated with Complainant’s business. See Compl. Annex L.
As such, the Panel finds that Respondent’s use of the disputed domain name to commercially benefit from click-through advertisements is in bad faith per Policy ¶ 4(b)(iv).
Additionally, Respondent’s bad faith is evidenced by their opportunistic registration of the <farmville-2.com> domain name. Opportunistic registration of a confusingly similar domain name is generally evidence of bad faith per Policy ¶ 4(a)(iii). See Arizona Board of Regents, for and on behalf of Arizona State University v. Weiping Zheng, FA1504001613780 (Forum May 28, 2015) (finding that the respondent had acted in opportunistic bad faith according to Policy ¶ 4(a)(iii), when it registered the disputed domain name just one week after the complainant filed applications to register the SUB DEVIL LIFE mark, and just days after those applications became public through the USPTO’s website). Respondent registered the disputed domain name on July 2, 2012, while Complainant filed for its trademark application on June 25, 2012. See Compl. Annexes A & K.
As such, the Panel finds that Respondent’s opportunistic registration of the disputed domain name is bad faith under Policy ¶ 4(a)(iii).
Finally, Respondent’s bad faith is evidenced by its actual knowledge of Complainant’s rights in the FARMVILLE marks. Actual knowledge of a complainant’s rights in a mark is evidence of bad faith registration per Policy ¶ 4(a)(iii). See Spectrum Brands, Inc. v. Guo Li Bo, FA 1760233 (Forum Jan. 5, 2018) (“[T]he fact Respondent registered a domain name that looked identical to the SPECTRUM BRANDS mark and used that as an email address to pass itself off as Complainant shows that Respondent knew of Complainant and its trademark rights at the time of registration.”). Complainant’s FARMVILLE marks and copyrighted images can be found on the resolving webpage of Respondent’s the disputed domain name. See Compl. Annex L. The Panel finds that, given the timing of the registration and the use of Complainant’s copyrighted material on the disputed domain name and the totality of the circumstances, Respondent had actual knowledge of Complainant’s prior rights and interest in the FARMVILLE mark.
As such, the Panel finds that Respondent engaged in bad faith use and registration of the disputed domain name.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <farmville-2.com> domain name be TRANSFERRED from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: December 11, 2018
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