Zillow, Inc. v. Janice Greene
Claim Number: FA1907001851618
Complainant is Zillow, Inc. (“Complainant”), represented by Matt Schneller of Schneller IP, PLLC, Tennessee, USA. Respondent is Janice Greene (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <zillowoffers.com> 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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 11, 2019; the Forum received payment on July 11, 2019.
On July 12, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <zillowoffers.com> 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 ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On July 18, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 7, 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@zillowoffers.com. Also on July 18, 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 8, 2019, 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, Zillow, Inc., provides real estate and mortgage marketplace services. Complainant has rights in the ZILLOW mark through its registration of the mark with the United States Patent and Trademark Office (“USTPO”) (e.g., Reg. No. 3,150,074 registered on Sep. 26, 2006). Respondent’s <zillowoffers.com> domain name is identical or confusingly similar because Respondent merely adds the common term “offers” and the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <zillowoffers.com> domain name because Respondent is not commonly known by the disputed domain name and is not licensed or permitted to use Complainant’s mark in any fashion. Additionally, Respondent fails to use the disputed domain name in connection to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent used the disputed domain name to host pay-per-click ads that link to Complainant’s competitors. Following the demand letter, Respondent changed the disputed domain name to host an inactive discussion site.
Respondent registered and uses the <zillowoffers.com> domain name in bad faith because Respondent has a pattern of bad faith registrations. Respondent used the disputed domain name to host links to Complainant’s competitors. Following the demand letter, Respondent changed the disputed domain name to host an inactive discussion site. Respondent did not reply to Complainant’s demand letter. Further, Respondent had actual knowledge of Complainant’s rights in the mark because Respondent was one of Complainant’s customers.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is Zillow, Inc. (“Complainant”), of Seattle, WA, USA. Complainant is the owner of domestic and international registrations for its mark ZILLOW and variations thereon, constituting the family of Zillow marks, including the mark ZILLOW INSTANT OFFERS. Complainant has continuously used its ZILLOW mark since at least as early as 2008, in connection with its provision of real estate and mortgage marketplace related services, both in real space and in cyberspace at its <zillow.com> website.
Respondent is Janice Greene (“Respondent”), of Redlands CA, USA. Respondent’s registrar’s address is listed as Scottsdale, AZ, USA. The Panel notes that the <zillowoffers.com> domain name was registered on or about December 27, 2017.
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 claims rights in the ZILLOW mark through its registration with the USTPO. Registration with the USTPO generally establishes a complainant’s rights in the mark for the purposes of Policy ¶ 4(a)(i). See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (“Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”). Complainant provides copies of its registration of the mark with the USTPO (e.g., Reg. No. 3,150,074 registered on Sep. 26, 2006). The Panel here finds that Complainant has established rights in the ZILLOW mark for the purposes of Policy ¶ 4(a)(i).
Complainant next argues that Respondent’s <zillowoffers.com> domain name is identical or confusingly similar to Complainant’s ZILLOW mark as it simply adds the common term “offers” and a gTLD to the mark. Incorporating a complainant’s mark in its entirety and adding a generic term and a gTLD may be insufficient to defeat a finding of identical or confusing similarity under 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).). Here, Complainant argues that Respondent added the common term “offers” and a “.com” gTLD. The Panel here finds that the <zillowoffers.com> domain name is identical or confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Respondent raises no contentions with regards to Policy ¶ 4(a)(i).
The Complainant has proven this element.
The Panel notes 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), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”). The Panel here finds that Complainant has set forth the requisite prima facie case.
Complainant argues that Respondent lacks rights and legitimate interests in the <zillowoffers.com> domain name because Respondent is not authorized or permitted to use Complainant’s ZILLOW mark and is not commonly known by the disputed domain name. Where a response is lacking, relevant WHOIS information may be used to identify the respondent per Policy ¶ 4(c)(ii). 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)). Additionally, lack of authorization from a complainant to use its marks may be further evidence that a respondent is not commonly known by a disputed domain name. See Indeed, Inc. v. Ankit Bhardwaj / Recruiter, FA 1739470 (Forum Aug. 3, 2017) (”Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at-issue domain name.”). The Panel here notes the WHOIS of record identifies the Respondent as “Janice Greene” and no information in the record indicates that Respondent was authorized to use Complainant’s mark or was commonly known by the disputed domain name. The Panel finds that Respondent lacks rights and legitimate interests in the <zillowoffers.com> domain name under Policy ¶ 4(c)(ii).
Next, Complainant argues that Respondent fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use because Respondent used the <zillowoffers.com> domain name to host pay-per-click links to Complainant’s competitors. Using a disputed domain name to host pay-per-click links that direct users to a complainant’s competitors may not be a bona fide offering or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Ashley Furniture Industries, Inc. v. domain admin / private registrations aktien gesellschaft, FA1506001626253 (Forum July 29, 2015) (“Respondent is using the disputed domain name to resolve to a web page containing advertising links to products that compete with those of Complainant. The Panel finds that this does not constitute a bona fide offering or a legitimate noncommercial or fair use.”). Here, Complainant provides screenshots of the disputed domain name’s resolving webpage as of March 7, 2019 which appears to feature links about houses for sale. The Panel here finds that Respondent makes no bona fide offerings or legitimate noncommercial or fair use under 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 uses the <zillowoffers.com> domain name to provide pay-per-click links to directly competing services. Using a disputed domain name to host links to a complainant’s competitors may be evidence of bad faith under Policy ¶ 4(b)(iv). See American Council on Education and GED Testing Service LLC v. Anthony Williams, FA1760954 (Forum Jan. 8, 2018) (“Respondent’s hosting of links to Complainant’s competitors demonstrates bad faith registration and use of the <geddiploma.org> domain name pursuant to Policy ¶ 4(b)(iv)”). Here, Complainant provides screenshots of the disputed domain name’s resolving webpage as of March 7, 2019 which appears to feature links about houses for sale. The Panel here finds that Respondent registered and uses the <zillowoffers.com> domain name in bad faith under Policy ¶ 4(b)(iv).
Complainant additionally argues that Respondent was clearly aware of Complainant’s rights in the mark. The Panel here may find that any arguments of bad faith based on constructive notice are irrelevant, however, because UDRP case precedent declines to find bad faith as a result of constructive knowledge. See The Way Int'l, Inc. v. Diamond Peters, D2003-0264 (WIPO May 29, 2003) ("As to constructive knowledge, the Panel takes the view that there is no place for such a concept under the Policy."). Actual knowledge of complainant’s rights in a mark may support a finding of bad faith under Policy ¶ 4(a)(iii) and can be established through evidence of the fame of the mark and a respondent’s use of it. See Yahoo! Inc. v. Butler, FA 744444 (Forum Aug. 17, 2006) (finding bad faith where the respondent was “well-aware” of the complainant’s YAHOO! mark at the time of registration). Here, Complainant argues that Respondent’s actual knowledge is evidenced by the fact that Respondent is a paying customer of Complainant’s services. The Panel here finds that Respondent did have actual knowledge of Complainant’s mark 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 <zillowoffers.com> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: August 28, 2019
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