Zulily, LLC v. Privacy Guardian et al.
Claim Number: FA2103001938250
Complainant: Zulily, LLC of Seattle, Washington, United States of America.
Complainant Representative: Davis Wright Tremaine of Seattle, Washington, United States of America.
Respondent: Privacy Guardian / See PrivacyGuardian.org of Phoenix, Arizona, US.
Respondent Representative: None appearing.
REGISTRY and REGISTRAR
Registry: Binky Moon, LLC; GMO Registry, Inc.
Registrar: NameSilo, 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 Examiner in this proceeding.
Charles A. Kuechenmeister, Examiner.
Complainant submitted: March 26, 2021
Commencement: March 30, 2021
Default Date: April 14, 2021
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 names be suspended for the life of the registrations.
Clear and convincing evidence.
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 suspending a domain name:
· the registered domain name is 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 currently in effect and that was in effect at the time the URS Complaint was filed; and
· Registrant has no legitimate right or interest to the domain name; and
· the domain was registered and is being used in bad faith.
The Examiner finds as follows:
There is no genuine issue of any material fact.
All of the domain names are registered with the same registrar and they all expire within 24 days of each other, indicating that they were all registered within that same period of time. On this evidence the Examiner finds that all of the domain names were registered and are controlled by the same person or entity.
The ZULILY mark was registered to Zulily, Inc. with the United States Patent and Trademark Office (USPTO) (Registration No. 3,868,643) on October 26, 2010 and was subsequently assigned to Complainant (TESS Certificate submitted with Complaint). Complainant is currently using that mark in connection with its business operations (Proof of Use screenshots submitted with Complaint). Complainant thus holds a valid national registration of its mark, and the mark is in current use. Further, all of the domain names are confusingly similar to Complainant’s mark.
The registrar lists the Registrant as “Privacy Guardian / See PrivacyGuardian.org of Phoenix Arizona, United States of America.” Neither of these names bears any resemblance to the domain name, and there is no evidence that the Registrant has been commonly known by the domain name. The Complainant states that Registrant is not affiliated with it and that Complainant has not authorized Registrant to use its ZULILY mark. Further, the URS Site Screenshots submitted with the Complaint are screenshots of the web sites resolving from the domain names. Their content consists variously of notices that the web site cannot be found, cups, fruit, a picture, a T-shirt, and notices of a shared IP. Some of the sites are thus inactive and the others appear to offer goods at retail in competition with Complainant. None of these uses can confer right or legitimate interest upon the Respondent. The Registrant has no legitimate right or interest to the domain names.
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 that the following domain names be SUSPENDED for the duration of their respective registrations.
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Charles A. Kuechenmeister, Examiner
Dated: April 14, 2021
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