Zcash Foundation v. Wright Chanajksnaknd
Claim Number: FA2303002037266
Complainant is Zcash Foundation (“Complainant”), represented by Gregory J. Chinlund of Marshall, Gerstein & Borun LLP, Illinois, USA. Respondent is Wright Chanajksnaknd (“Respondent”), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <zlend.cash>, (‘the Domain Name’) registered with NameCheap, Inc..
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to Forum electronically on March 24, 2023; Forum received payment on March 24, 2023.
On March 24, 2023, NameCheap, Inc. confirmed by e-mail to Forum that the <zlend.cash> Domain Name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. 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 March 28, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 17, 2023 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@zlend.cash. Also on March 28, 2023, 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, Forum transmitted to the parties a Notification of Respondent Default.
On April 24, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Dawn Osborne as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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
The Complainant’s contentions can be summarized as follows:
The Complainant is the owner of the mark Z CASH registered in the USA for financial services with first use recorded as 2016. It owns z.cash.
The Domain Name registered in 2020 is confusingly similar to the Complainant’s mark adding the generic word ‘lend’ which does not prevent such confusing similarity.
Respondent has no rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorized by the Complainant.
The Domain Name has been used for a site offering competing services using the Complainant’s Z logo as a masthead and the Complainant’s Z CASH logo on the site. The Respondent’s social media presence is intended to further the confusion of consumers through the prominent use of the Complainant’s Z CASH mark and Z logo. This is not a bona fide offering of services or legitimate noncommercial fair use. This is registration and use in opportunistic bad faith diverting and confusing Internet users designed to disrupt the Complainant’s business in full knowledge of the Complainant and its rights.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the mark Z CASH registered in the USA for financial services with first use recorded as 2016. It owns z.cash.
The Domain Name registered in 2020 has been used for a site offering competing services using the Complainant’s Z logo as a masthead and the Complainant’s Z CASH mark.
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”).
The Domain Name consists of the Complainant's Z CASH mark (which is registered in USA for financial services with first use recorded as 2016) and the generic word ‘lend’.
The addition of the generic word ‘lend’ does not serve to distinguish the Domain Name from the Complainant’s Z CASH mark. See Abbott Laboratories v. Miles White, FA 1646590 (Forum Dec. 10, 2015) (holding that the addition of a generic term does not adequately distinguish a disputed domain name from complainant’s mark under Policy 4(a)(i).).
Accordingly, the Panel holds that the Domain Name is confusingly similar to the Complainant’s registered mark.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Respondent is not authorized by the Complainant and does not appear to be commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
The web site attached to the Domain Name offered competing services to the Complainant using the Complainant’s Z logo as a masthead and its Z CASH logo elsewhere on the Respondent’s site. The Respondent also used the Complainant’s Z CASH mark and Z logo in its social media in the background. The Panel finds this deceptive and confusing with a likely risk of presumed affiliation where there is none. As such it cannot amount to the bona fide offering of goods and services. See Am. Intl Group Inc v. Benjamin, FA 944242 (Forum May 11, 2007) (finding that the Respondent's use of a confusingly similar domain name to compete with the Complainant's business did not constitute a bona fide use of goods and services.) The use of the Domain Name is commercial so cannot be legitimate noncommercial fair use.
The Respondent has not answered this Complaint or countered the prima facie case evidenced by the Complainant as set out herein.
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
In the opinion of the panelist the use made of the Domain Name in relation to the Respondent’s site was confusing and disruptive in that visitors to the site might have reasonably believed it was connected to or approved by the Complainant as it offered competing services using the Complainant’s Z logo as a masthead and used the Complainant’s Z CASH mark on its web site and used the Complainant’s marks and logo on accompanying social media.
Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to his website by creating a likelihood of confusion with the Complainant's trade mark as to the source, sponsorship, affiliation or endorsement of the web site and services offered on it likely to disrupt the business of the Complainant. See Asbury Auto Group Inc v. Tex. Int'l Prop Assocs, FA 958542 (Forum May 29, 2007) (finding that the respondent's use of the disputed domain name to compete with the complainant's business would likely lead to confusion amongst Internet users as to the sponsorship or affiliation of a competing business and was therefore evidence of bad faith and use). See Allianz of AM. Corp v. Bond, FA 680624 (Forum June 2, 2006) (finding bad faith registration and use where the respondent was diverting Internet users searching for the complainant to its own website).
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under para 4(b)(iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <zlend.cash> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: April 25, 2023
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