DECISION

 

Zscaler, Inc. v. Zhichao Yang

Claim Number: FA2407002108649

 

PARTIES

Complainant is Zscaler, Inc. ("Complainant"), represented by Jessica L. Davis, California, USA. Respondent is Zhichao Yang ("Respondent"), China.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <zsclaer.com>, registered with GoDaddy Online Services Cayman Islands Ltd.

 

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 July 30, 2024; Forum received payment on July 30, 2024.

 

On July 30, 2024, GoDaddy Online Services Cayman Islands Ltd. confirmed by e-mail to Forum that the <zsclaer.com> domain name is registered with GoDaddy Online Services Cayman Islands Ltd. and that Respondent is the current registrant of the name. GoDaddy Online Services Cayman Islands Ltd. has verified that Respondent is bound by the GoDaddy Online Services Cayman Islands Ltd. 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 31, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 20, 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@zsclaer.com. Also on July 31, 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 August 21, 2024, 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 in part as follows:

 

Complainant owns trademark registrations for ZSCALER with the USPTO and other national registrars.

 

The at-issue domain name <zsclaer.com> is confusingly similar to Complainant's trademark/service mark. The domain name only changes the order of the "l" and "a" in the ZSCALER mark. This is creating confusion as to whether the domain name is associated with Complainant.

 

Respondent has no rights or legitimate interests with respect to the at-issue domain name. Respondent is unknown due to the private WHOIS registration. Respondent is using the domain name as a phishing technique to learn confidential and private information about Complainant's subscribers because there is no legitimate reason for Respondent to use the ZSCALER name with two letters reversed.

 

The domain name should be considered as having been registered and being used in bad faith. In particular, Respondent is using <zsclaer.com> in a bad faith attempt to impersonate Complainant and unlawfully obtain ZSCALER subscriber confidential and private information. A screenshot of the content displayed by Respondent on the domain name illustrates how Respondent is attempting to impersonate Complainant and unlawfully obtain subscriber confidential and private information. "Bildungsgutschein" (which appears to be a link on the webpage addressed by the domain name) is the German word for a training voucher. The Respondent is seeking to confuse Complainant's subscribers by purporting to offer ZSCALER training. The fact that the domain name was registered anonymously also supports that it was registered and is being used in bad faith.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant has rights in the ZSCALER trademark.

 

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 the ZSCALER trademark.

 

Respondent registered and used the at-issue domain name to host click-through links some of which may be to ZSCALER related services.

 

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 shows that it has registered its ZSCALER trademark with the USPTO as well as with other national registrars. Any of Complainant's trademark registrations demonstrates Complainant's rights in a mark under the Policy. See BGK Trademark Holdings, LLC & Beyoncé Giselle Knowles-Carter v. Chanphut / Beyonce Shop, FA 1626334 (Forum Aug. 3, 2015) (asserting that Complainant's registration with the USPTO (or any other governmental authority) adequately proves its rights under Policy ¶ 4(a)(i)).

 

Respondent's at-issue domain name consists of a recognizable misspelled version of Complainant's ZSCALER trademark where the mark's "a" and "l" are transposed, and the misspelled trademark is followed by the ".com" top-level domain name. The differences between Respondent's domain name and Complainant's trademark are insufficient to distinguish the domain name from Complainant's ZSCALER mark for the purposes of Policy ¶ 4(a)(i). Therefore, the Panel concludes that Respondent's at-issue domain name is confusingly similar to Complainant's ZSCALER trademark. See Acme Lift Company, L.L.C. v. VistaPrint Technologies Ltd, FA 1607039 (Forum Apr. 11, 2015) (stating: "Where a respondent has created a domain name in an effort to visually deceive Internet users via a simple misspelling (and when such misspellings are visually similar to the mark), a finding of confusing similarity under Policy ¶ 4(a)(i) is appropriate."); see also AbbVie, Inc. v. Gray Falkon, FA 2107146 (Forum Aug. 14, 2024) (finding the domain name <abvbie.com> to be confusingly similar to the complainant's ABBVIE trademark).

 

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).

 

Respondent lacks both rights and legitimate interests in respect 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 <zsclaer.com> domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) ("lack of evidence in the record to indicate a respondent is authorized to use [the] complainant's mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)").

 

The WHOIS information for the at-issue domain name identifies the domain name's registrant as "Zhichao Yang" and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by <zsclaer.com>. The Panel therefore concludes that Respondent is not commonly known by the at-issue domain name for the purposes of Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).

 

Respondent uses <zsclaer.com> to address a webpage that appears to host links to third-parties some of which may be offering services that are related to services offered by Complainant. Such use of <zsclaer.com> is not indicative of a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See Insomniac Holdings, LLC v. Mark Daniels, FA 1735969 (Forum July 15, 2017) ("Respondent's use of <edcorlando.xyz> also does not qualify as a bona fide offering… the <edcorlando.xyz> domain name resolves to a site containing pay-per-click hyperlinks and advertisements… Since these kinds of advertisements generate revenue for the holder of a domain name, they cannot be noncommercial; further, they do not qualify as a bona fide offering.").

 

Given the forgoing, the Panel finds that Respondent lacks rights and lacks legitimate interests in respect of <zsclaer.com>.

 

Registration and Use in Bad Faith

As discussed below without being exhaustive, there is evidence from which the Panel concludes that Respondent acted in bad faith pursuant to the Policy.

 

Respondent uses its confusingly similar <zsclaer.com> domain name to address a webpage displaying what appear to be links to third-parties. Using the domain name in such manner is disruptive to Complainant's business, takes unfair advantage of the confusion between the at-issue domain name and Complainant's trademark, and indicates Respondent's bad faith pursuant to Policy ¶ 4(b)(iii) and Policy ¶ 4(b)(iv). See Vivint, Inc. v. Online Management, FA 1549084 (Forum Apr. 23, 2014) (holding that the respondent had registered and used the disputed domain name in bad faith according to Policy ¶ 4(b)(iv) where the disputed domain name resolved to a parking page that featured no content besides sponsored advertisements and links). However, the Panel does not find sufficient evidence to support Complainant's assertion that Respondent is attempting to unlawfully obtain Complainant's subscriber confidential and private information, although such might in fact be the case.

 

Moreover and although not expressly argued by Complainant, the Panel finds that Respondent had actual knowledge of Complainant's rights in ZSCALER when it registered <zsclaer.com>. Respondent's knowledge is evident from the notoriety of Complainant's trademark and from Respondent's overt misspelling of Complainant's mark within Respondent's at-issue domain name. Respondent's registration and use of the confusingly similar domain name with knowledge of Complainant's trademark rights in ZSCALER additionally shows Respondent's bad faith registration and use under 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); 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).

 

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 <zsclaer.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Paul M. DeCicco, Panelist

Dated: August 22, 2024