DECISION

 

MFTB Holdco, Inc. dba Zillow v. Quantum Ledger / quantum / Zillow / king Alex

Claim Number: FA2402002084150

 

PARTIES

Complainant is MFTB Holdco, Inc. dba Zillow ("Complainant"), represented by Griffin Barnett of Perkins Coie LLP, District of Columbia, USA. Respondent is Quantum Ledger / quantum / Zillow / king Alex ("Respondent"), Multiple Locations.

 

REGISTRAR AND DISPUTED DOMAIN NAMES 

The domain names at issue are <zillowassets.com> and <zillowassets.net>, registered with Hostinger Operations, Uab, Global Domain Group Llc.

 

PANEL

The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.

 

Richard Hill as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on February 16, 2024; Forum received payment on February 16, 2024.

 

On February 19, 2024 and February 21, 2024, Hostinger Operations, Uab, Global Domain Group Llc confirmed by e-mail to Forum that the <zillowassets.com> and <zillowassets.net> domain names are registered with Hostinger Operations, Uab, Global Domain Group Llc and that Respondent is the current registrant of the names. Hostinger Operations, Uab, Global Domain Group Llc has verified that Respondent is bound by the Hostinger Operations, Uab, Global Domain Group 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 February 23, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 14, 2024 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@zillowassets.com and postmaster@zillowassets.net. Also on February 23, 2024, 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 March 15, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill 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 names be transferred from Respondent to Complainant.

 

PRELIMINARY ISSUE: MULTIPLE RESPONDENTS

In the instant proceedings, Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") provides that a "complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder."  

 

The Panel finds that the domain names are under common control as the registrant email address for both domain names is identical and the website located at the <zillowassets.net> is identical to the website formerly located at <zillowassets.com>. This is sufficient to find that the domain names were registered by the same domain name holder. See The Valspar Corporation v. Zhou Zhiliang / zhouzhiliang / Zhiliang Zhou / Eric Chow / Visspa Ltd., FA 133934 (Forum Sept. 28, 2010); see also BBY Solutions, Inc. v. White Apple / Dev Kumar, FA 1787251 (Forum June 20, 2018).

 

Consequently, the Panel will rule on both contested domain names, and the two registrants are collectively referred to as "Respondent".

 

PARTIES' CONTENTIONS

A. Complainant

Complainant states that it offers consumers information and services associated with selling, buying, renting, and financing real estate. Complainant asserts rights in the ZILLOW mark through its registration in the United States in 2006.

 

Complainant alleges that the disputed domain names are identical or confusingly similar to its ZILLOW mark as they incorporate the mark in its entirety and merely add the generic/descriptive term "assets" along with a generic top-level domain ("gTLD").

 

According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain names. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use its ZILLOW mark in any way. Respondent does not use the disputed domain names for a bona fide offering of goods or services, nor for a legitimate noncommercial or fair use. Instead, the resolving websites display Complainant's mark and logo, and purport to offer services related to Complainant's business. However, the purported services are not legitimate. On the contrary, the resolving websites are used to engage in a financial fraud scheme. More specifically, the websites invite users to transfer monetary funds in exchange for ostensible real estate investment services; however, on information and belief, the websites are merely sham and fraudulent websites through which Respondent is attempting to lure and defraud customers seeking to invest in real estate. In other words, on information and belief, Respondent is not actually offering any genuine investment services but is actually engaging in a financial fraud and/or phishing scheme. Complainant cites UDRP precedents to support its position.

 

Further, says Complainant, Respondent registered and uses the disputed domain names in bad faith. Respondent purports to offers services which compete with those of Complainant. Respondent registered the disputed domain names with actual knowledge of Complainant's rights in the ZILLOW mark. Additionally, the WHOIS information supplied by Respondent appears to be false: there is no evidence of any company called "Quantum Ledger" or "quantum" located at the address provided for the <zillowassets.com> domain name;  furthermore, the address appears to be incomplete and/or inaccurate – it does not identify a specific building number or street number. Similarly, the address provided for the <zillowassets.net> domain name also appears to be false: "15205 North Kierland Blvd., North Kierland, North Carolina 47434 US": there is no evidence of a North Kierland Blvd. anywhere in North Carolina (it only appears to be a street name in the area of Scottsdale, Arizona), nor any city called North Kierland in North Carolina (and while there is a municipality called Kierland in Arizona, there is no city specially called North Kierland anywhere in the U.S.); the postal code 47434 also corresponds to southern Indiana – not North Carolina. Respondent's registration of multiple domain names incorporating the ZILLOW mark also illustrates a pattern of bad faith registration and use under Paragraph 4(b)(ii) of the Policy. Complainant cites UDRP precedents to support its position.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant owns the mark ZILLOW and uses it to market a variety of real estate services, including loans.

 

Complainant's rights in its mark date back to 2006.

 

The disputed domain names were registered in 2023 and 2024.

 

Complainant has not licensed or otherwise authorized Respondent to use its mark.

 

The resolving websites display Complainant's mark and logo and purport to offer competing services. The WHOIS information is false.

 

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 disputed domain names incorporate Complainant's ZILLOW mark in its entirety, and merely add the generic/descriptive term "assets" and a gTLD. Under Policy ¶ 4(a)(i), adding a gTLD and/or generic terms is generally insufficient in differentiating a disputed domain name from the mark it incorporates. See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) ("Where a relevant trademark is recognisable 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."); see also Vanguard Group Inc. v. Proven Fin. Solutions, FA 572937 (Forum Nov. 18, 2005) (holding that the addition of both the word "advisors" and the gTLD ".com" did not sufficiently alter the disputed domain name to negate a finding of confusing similarity under Policy ¶ 4(a)(i)). Therefore, the Panel finds that the disputed domain names are confusingly similar to Complainant's mark under Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Respondent is not authorized or permitted to use Complainant's ZILLOW mark in any way and is not commonly known by the disputed domain names: under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a respondent is known by the disputed domain name. See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Where the WHOIS is related to the disputed domain name, the Panel may still find the respondent lacks rights or legitimate interest in the disputed domain name if the respondent lacks authorization to use the complainant's mark and the respondent fails to provide affirmative evidence in support of its identity. See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding that, although the respondent listed itself as "Jessie McKoy / Ripple Reserve Fund" in the WHOIS contact information, it did not provide any affirmative evidence to support this identity; combined with the fact that the complainant claimed it did not authorize the respondent to use the mark, the respondent is not commonly known by the domain name). Here, the WHOIS information for the disputed domain names identifies the registrant as "Quantum Ledger / quantum / Zillow / king Alex" but Respondent provides no affirmative evidence in support of this identity and no evidence in the record suggests Respondent is authorized to use the ZILLOW mark. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain names per Policy ¶ 4(c)(ii).

 

The resolving websites purport to offer services that compete with those of Complainant. This is not a bona fide offering of goods or services, nor a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Invesco Ltd. v. Premanshu Rana, FA 1733167 (Forum July 10, 2017) ("Use of a domain name to divert Internet users to a competing website is not a bona fide offering of goods or services or a legitimate noncommercial or fair use."). Thus the Panel finds that Respondent fails to use the disputed domain names for to make a bona fide offering of goods or services, or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain names.

 

Registration and Use in Bad Faith

Complainant alleges that Respondent has engaged in a pattern of bad faith registration and use of domain names. However, it does not cite any prior UDRP cases involving Respondent, and appears to rely merely on the registration of the two domain names of the instant proceedings. The Panel finds that registering only two domain names is not sufficient to establish a pattern in the sense of Paragraph 4(b)(ii) of the Policy. Thus the Panel finds that Complainant has failed to satisfy its burden of proof for this allegation.

 

Respondent (who did not reply to Complainant's contentions) has not presented any plausible explanation for its use of Complainant's mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent's failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain names.

 

Indeed, as already noted, the resolving websites purport to offer competing services. Under Policy ¶ 4(b)(iv), using a disputed domain name to offer goods or services in competition with a complainant is evidence of bad faith registration and use. See CAN Financial Corporation v. William Thomson / CNA Insurance, FA 1541484 (Forum Feb. 28, 2014) (finding that the respondent had engaged in bad faith under Policy ¶ 4(b)(iv), by using a confusingly similar domain name to attract Internet users to its own website where it sold competing insurance services). Thus the Panel finds that Respondent registered and uses the disputed domain names in bad faith under Policy ¶ 4(b)(iv).

 

Further, Respondent registered the disputed domain names with actual knowledge of Complainant's mark: the resolving websites display Complainant's mark and logo. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant's rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) ("There is no place for constructive notice under the Policy."); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) ("The Panel notes that although the UDRP does not recognize 'constructive notice' as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it."); see also Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). The Panel finds that Respondent had actual knowledge of Complainant's rights in the mark prior to Respondent's registration of the disputed domain names and that this constitutes bad faith under Policy ¶ 4(a)(iii).

 

Finally, Complainant provides evidence that the WHOIS information is false. This can indicate bad faith registration and use. See Enterprise Holdings, Inc. v. John Doe, FA 1339545 (Forum Sept., 2010 ) ("The Panel also takes into account that the entity that Responded to the Complaint would not be the registrant of the disputed domain names for the instant proceedings. Therefore, that circumstance is also taken by the Panel as indication of bad faith under Policy ¶ 4(a)(iii) by providing false or misleading WHOIS information to the registrar."); see also Video Direct Distribs. Inc. v. Video Direct, Inc., FA 94724 (Forum June 5, 2000) (finding that the respondent acted in bad faith by providing incorrect information to the registrar regarding the owner of the registered name). Accordingly, the Panel finds bad faith registration and use on this ground also.

 

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 <zillowassets.com> and <zillowassets.net> domain names be TRANSFERRED from Respondent to Complainant.

 

 

 

Richard Hill, Panelist

Dated: March 16, 2024