Hertza L.L.C. v. Rowland O'Connor / Email Hippo Limited
Claim Number: FA1907001851151
Complainant is Hertza L.L.C. (“Complainant”), represented by Sarah R. Frankfort of De Diego Law LLC, Texas, USA. Respondent is Rowland O'Connor / Email Hippo Limited (“Respondent”), United Kingdom.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <zerobounce.cc>, <zerobounce.dev>, <zerobounce.name>, <zerobounce.page>, <zerobounce.reviews>, and <zerobounce.tv> (“Domain Names”), 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.
Nicholas J.T. Smith as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 8, 2019; the Forum received payment on July 8, 2019.
On July 8, 2019, NameCheap, Inc. confirmed by e-mail to the Forum that the <zerobounce.cc>, <zerobounce.dev>, <zerobounce.name>, <zerobounce.page>, <zerobounce.reviews>, and <zerobounce.tv> domain names are registered with NameCheap, Inc. and that Respondent is the current registrant of the names. 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 ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On July 11, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 31, 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@zerobounce.cc, postmaster@zerobounce.dev, postmaster@zerobounce.name, postmaster@zerobounce.page, postmaster@zerobounce.reviews, postmaster@zerobounce.tv. Also on July 11, 2019, 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 August 5, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Nicholas J.T. Smith 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 Names be transferred from Respondent to Complainant.
A. Complainant
Complainant is a company based in the United States that provides e-mail validation services and API software. Complainant uses the ZEROBOUNCE mark in connection with its email verification service and has done so since January 2017. Complainant has rights in the ZEROBOUNCE mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 5,474,398, registered May 22, 2018). Respondent’s <zerobounce.cc>, <zerobounce.dev>, <zerobounce.name>, <zerobounce.page>, <zerobounce.reviews>, and <zerobounce.tv> domain names are identical or confusingly similar to Complainant’s mark as they consist solely of the ZEROBOUNCE mark and a generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <zerobounce.cc>, <zerobounce.dev>, <zerobounce.name>, <zerobounce.page>, <zerobounce.reviews>, and <zerobounce.tv> domain names. Respondent is not commonly known by the Domain Names and Complainant has not given permission, authorization, or license to Respondent to use the ZEROBOUNCE mark. Respondent fails to use the Domain Names in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use as the Domain Names resolve to inactive websites.
Respondent registered and uses the <zerobounce.cc>, <zerobounce.dev>, <zerobounce.name>, <zerobounce.page>, <zerobounce.reviews>, and <zerobounce.tv> domain names in bad faith. Respondent’s bulk registration of the Domain Names demonstrates a pattern of bad faith registration and use. The Domain Names do not lead to active webpages.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the ZEROBOUNCE mark. Each of the Domain Names is identical to Complainant’s ZEROBOUNCE mark. Complainant has established that Respondent lacks rights or legitimate interests in the Domain Names and that Respondent registered and has used the Domain Names 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 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 set forth in a complaint; however, 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 rights in the ZEROBOUNCE mark based on registration with the USPTO (e.g. Reg. No. 5,474,398, registered May 22, 2018). Registration of a mark with the USPTO sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i). See Target Brands, Inc. v. jennifer beyer, FA 1738027 (Forum July 31, 2017) ("Complainant has rights in its TARGET service mark for purposes of Policy ¶ 4(a)(i) by virtue of its registration of the mark with a national trademark authority, the United States Patent and Trademark Office (“USPTO”).”).
The Panel finds that each of the Domain Names is identical to the ZEROBOUNCE mark as they consist solely of the ZEROBOUNCE mark and a gTLD or country-code top-level domain (“ccTLD”). The addition of a TLD to a mark fails to sufficiently distinguish a disputed domain name for the purposes of Policy ¶ 4(a)(i). See Dell Inc. v. Protection of Private Person / Privacy Protection, FA 1681432 (Forum Aug. 1, 2016) (“A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax requires TLDs. Likewise, the absence of spaces must be disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax prohibits them.”).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the Domain Names. In order for Complainant to succeed under this element, it must first make a prima facie case that Respondent lacks rights and legitimate interests in the Domain Names 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) and AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”). The Panel holds that Complainant has made out a prima facie case.
Complainant asserts that Respondent has no rights or legitimate interests in the Domain Names as Respondent is not commonly known by the Domain Names, nor has Complainant authorized Respondent to use the ZEROBOUNCE mark. Respondent has no relationship, affiliation, connection, endorsement or association with Complainant. WHOIS information can help support a finding that a respondent is not commonly known by the disputed domain name, especially where a privacy service has been engaged. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)); see also Kohler Co. v. Privacy Service, FA1505001621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where “Privacy Service” was listed as the registrant of the disputed domain name). The WHOIS lists “Rowland O'Connor / Email Hippo Limited” as the registrant of record. Coupled with Complainant’s unrebutted assertions as to absence of any affiliation or authorization between the parties, the Panel finds that Respondent is not commonly known by the Domain Names in accordance with Policy ¶ 4(c)(ii).
The Domain Names are inactive and there is no other evidence of any intention to use the Domain Names for any purpose, be it a bona fide offering or legitimate non-commercial use. In the absence of any additional evidence (none available in the present case) inactive holding of a disputed domain name is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Kohler Co. v xi long chen, FA 1737910 (Forum Aug. 4, 2017) (”Respondent has not made a bona fide offering of goods or services, or a legitimate non-commercial or fair use of the domain. Respondent’s <kohler-corporation.com> resolves to an inactive webpage displaying the message “website coming soon!”).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
The Panel finds on the balance of probabilities that, at the time of registration of the Domain Names, June 29 2019, Respondent had actual knowledge of Complainant’s ZEROBOUNCE mark. The Complainant has used the ZEROBOUNCE mark since 2017 and the Respondent has not provided any explanation for its registration of six domain names that precisely correspond with Complainant’s mark. In the absence of rights or legitimate interests, this demonstrates registration in bad faith under Policy ¶ 4(a)(iii).
The Panel finds that Respondent has engaged in a pattern of conduct of registering domain names to prevent the owner of the ZEROBOUNCE mark from reflecting is mark in the corresponding domain names. See Microsoft Corporation and Skype v. zhong biao zhang / Unknown company / zhong zhang, FA1401001538218 (Forum Feb. 20, 2014) (holding that the respondent’s registration of three domain names incorporating variants of the complainant’s SKYPE mark reflected a pattern of bad faith registration under Policy ¶ 4(b)(ii)); Philip Morris USA Inc. v. RapidClic / VAUCLIN Olivier, FA1309001520008 (Forum Nov. 7, 2013) (finding that the respondent’s registration of multiple infringing domain names indicates a pattern of bad faith registration and use under Policy ¶ 4(b)(ii)). Respondent has, without alternative explanation (or active use), registered six domain names that reproduce the ZEROBOUNCE mark. This constitutes bad faith registration and use under Policy ¶¶ 4(b)(ii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <zerobounce.cc>, <zerobounce.dev>, <zerobounce.name>, <zerobounce.page>, <zerobounce.reviews>, and <zerobounce.tv> domain names be TRANSFERRED from Respondent to Complainant.
Nicholas J.T. Smith, Panelist
Dated: August 7, 2019
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