DECISION

 

Zappos IP LLC v. ERIC VAN

Claim Number: FA2311002072995

 

PARTIES

Complainant is Zappos IP LLC ("Complainant"), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is ERIC VAN ("Respondent"), Texas, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <zapposcareers.com>, registered with NameSilo, LLC.

 

PANEL

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.

 

Paul M. DeCicco, as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on November 29, 2023; Forum received payment on November 29, 2023.

 

On November 30, 2023, NameSilo, LLC confirmed by e-mail to Forum that the <zapposcareers.com> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 November 30, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 20, 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@zapposcareers.com. Also on November 30, 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 December 21, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Paul M. DeCicco 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant contends as follows:

 

For more than twenty years, Complainant has offered retail services under the trademarks ZAPPOS and ZAPPOS.COM via the website <zappos.com> where Complainant offers shoes, clothing, handbags, accessories, and more.

 

Complainant's marks are registered in various countries including the United States.

 

The at-issue domain name is confusingly similar Complainant's ZAPPOS and ZAPPOS.COM trademarks as the domain name consists of Complainant's ZAPPOS mark only adding the term "careers" and the top-level ".com" which is part of Complainant's ZAPPOS.COM trademark.

 

Respondent lacks rights and legitimate interests in the at-issue domain name. Respondent has not used the domain name in connection with a bona fide offering of goods or services; is not making noncommercial fair use of the domain name; and has not been known as ZAPPOS or ZAPPOS.COM or variation thereof.

 

The at-issue domain name does not address an active website. Rather, Respondent is using the domain name to impersonate Complainant in phony job offers where Respondent sends email from <zapposcareers.com> posing as a representative of Complainant that pretends to be from Complainant's "Hiring Team" and states that the recipient is being considered for position with Complainant. The email further seeks answers to interview questions and personal data from the recipient as a necessary part of Respondent's bogus hiring process.

 

Respondent registered and uses the at-issue domain name in bad faith. Respondent had actual knowledge of Complainant's trademarks when it registered <zapposcareers.com>. Respondent uses the at-issue domain name to pass itself off as Complainant showing bad faith under the Policy. Respondent's use of the domain name to transmit fraudulent emails and job listing/offers also constitutes bad faith. Respondent's scheme to unfairly benefit from the goodwill associated with Complainant's trademarks is further indicative of Respondent's bad faith.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant has trademark rights in the ZAPPOS and ZAPPOS.COM marks.

 

Respondent is not affiliated with Complainant and had not been authorized to use Complainant's trademark in any capacity.

 

Respondent registered the at‑issue domain name after Complainant acquired rights in its ZAPPOS and ZAPPOS.COM trademarks.

 

Respondent used the at-issue domain name to facilitate an email phishing scheme.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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").

 

Identical and/or Confusingly Similar

The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.

 

Complainant's USPTO registration for ZAPPOS and/or ZAPPOS.COM, as well as any other registration for such marks that Complainant may have worldwide, is sufficient to demonstrate Complainant's rights in a mark for the purposes of Policy ¶ 4(a)(i). See Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sep. 4, 2018) ("Complainant has rights in the GMAIL mark based upon its registration of the mark with numerous trademark agencies around the world."); see also Bloomberg Finance L.P. v. Jimmy Yau, FA 1764034 (Forum Jan. 25, 2018) ("The Panel finds that complainant has rights in BLOOMBERG mark under Policy ¶ 4(a)(i) based upon its registration with multiple trademark agencies, including the USPTO.").

 

Respondent's <zapposcareers.com> contain Complainant's ZAPPOS trademark followed by the suggestive term "careers" with all followed by the ".com" top-level domain name. The differences between the at-issue domain name and Complainant's ZAPPOS or ZAPPOS.COM trademarks are insufficient to distinguish the at-issue domain name from ZAPPOS or ZAPPOS.COM for the purposes of Policy ¶ 4(a)(i). Therefore, the Panel concludes that Respondent's <zapposcareers.com> domain name is confusingly similar to both Complainant's ZAPPOS and ZAPPOS.COM trademarks. See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) ("Where a relevant trademark is recognizable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element."). 

 

Rights or Legitimate Interests

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. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant's prima facie showing acts conclusively.

 

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 WHOIS information for <zapposcareers.com> identifies its registrant as "ERIC VAN" and record before the Panel contains no evidence that otherwise tends to show that Respondent is known by the at-issue domain name. The Panel therefore concludes that Respondent is not commonly known by <zapposcareers.com>. See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).

 

Respondent uses the at-issue domain name to promote a phishing scheme. Respondent, using email sent from the at-issue domain name, poses as a hiring authority for Complainant. The imposter's email urges the recipient to provide answers to questions and personal documentation in furtherance of hiring the duped recipient. Respondent's use of the domain name in this manner constitutes neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a non-commercial or fair use under Policy ¶ 4(c)(iii). See Virtu Financial Operating, LLC v. Lester Lomax, FA 1580464 (Forum Nov. 14, 2014) (finding that the respondent had failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii) where the respondent was using the disputed domain name to phish for internet users personal information by offering a fake job posting on the resolving website).

 

Given the forgoing, Complainant satisfies its initial burden and demonstrates Respondent's lack of rights and lack of interests in respect of the at-issue domain name pursuant to Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

As discussed below without being exhaustive, circumstances are present which compel the Panel to conclude that Respondent acted in bad faith pursuant to the Policy.

 

By misappropriating Complainant's trademark to use in its domain name and email address as discussed above, Respondent passes itself off as Complainant (or an agent thereof) in furtherance of fraud. Respondent deliberately set out to confound internet users as to the sponsorship of fraudulent email so that it might deceptively interrogate such internet users. Respondent's use of the at-issue domain name to deceive internet users disrupts Complainant's business and shows Respondent's bad faith registration and use of the at-issue domain name pursuant to Policy ¶¶ 4(b)(iii) and/or (iv). See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) ("Respondent uses the <abbuie.com> domain name to impersonate Complainant's CEO. Such use is undeniably disruptive to Complainant's business and demonstrates bad faith pursuant to Policy ¶ 4(b)(iii), and/or Policy ¶ 4(b)(iv)"); see also Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use per Policy ¶ 4(b)(iv)). The fact that Respondent is engaging in email phishing itself shows Respondent's bad faith registration and use of the at-issue domain name. See Emdeon Business Services, LLC v. HR Emdeon Careers, FA 1629459 (Forum Aug. 14, 2015) (finding that the respondent had engaged in an email phishing scheme indicating bad faith under Policy ¶ 4(a)(iii), where respondent was coordinating the disputed domain name to send emails to internet users and advising them that they had been selected for a job interview with the complainant and was persuading the users to disclose personal information in the process).

 

Moreover, Respondent registered the at-issue domain name knowing that Complainant had trademark rights in the ZAPPOS trademarks. Respondent's prior knowledge is evident given the notoriety of Complainant's marks and given Respondent's scheme to pass itself off as Complainant in furtherance of fraudulently extracting information from third-party email recipients. Respondent's prior knowledge is further evidence that Respondent registered and used the <zapposcareers.com> domain name in bad faith pursuant to the Policy. See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had "actual knowledge of Complainant's mark when registering the disputed domain name").

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <zapposcareers.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Paul M. DeCicco, Panelist

Dated: December 22, 2023