DECISION

 

SidePrize, LLC d/b/a PrizePicks v. Jon Edelman / Ideas 4 Now

Claim Number: FA2502002141538

PARTIES

Complainant is SidePrize, LLC d/b/a PrizePicks ("Complainant"), represented by Ashley N. Klein of Morris, Manning & Martin, LLP, Georgia, USA. Respondent is Jon Edelman / Ideas 4 Now ("Respondent"), Florida, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <prizepickers.com> (the "disputed domain name"), registered with Wild West Domains, 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.

 

Lynda M. Braun as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on February 24, 2025; Forum received payment on February 24, 2025.

 

On February 24, 2025, Wild West Domains, LLC confirmed by e-mail to Forum that the <prizepickers.com> disputed domain name is registered with Wild West Domains, LLC and that Respondent is the current registrant of the name. Wild West Domains, LLC has verified that Respondent is bound by the Wild West Domains, 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 25, 2025, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 17, 2025 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@prizepickers.com. Also on February 25, 2025, 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 18, 2025, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Lynda M. Braun 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 disputed domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant is a limited liability company organized and existing under the laws of the State of Georgia, with its principal place of business located in Atlanta, Georgia, USA.  Complainant is the largest daily fantasy sports operator in North America and an award-winning, nationally recognized leader in fantasy sports, including fantasy esports, skill-based fantasy sports, and fantasy sports educational resources. Complainant has been continuously providing fantasy sports services since at least 2018, providing its customers with the ability, among other things, to win money prizes based on their fantasy sports lineups.

 

Complainant is the owner of the following valid and registered trademarks in the United States Patent and Trademark Office ("USPTO"): PRIZEPICKS, United States Trademark Registration No. 6,032,925, registered on April 14, 2020, with the first use in commerce of October 23, 2018, in International Classes 9 and 41. Complainant also owns several pending trademark applications in the USPTO. The foregoing trademarks will hereinafter collectively be referred to as the "PRIZEPICKS Mark".

 

The disputed domain name was registered on November 30, 2024 and resolved to a landing page on the Registrar's website. Respondent further used the disputed domain name to pursue a phishing scam through use of emails incorporating the disputed domain name.

 

Complainant contends that the disputed domain name is confusingly similar to the PRIZEPICKS Mark, that Respondent has no rights or legitimate interest in respect of the disputed domain name, and Respondent registered and is using the disputed domain name in bad faith

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

The Panel finds that Complainant has rights in the PRIZEPICKS Mark based on its trademark registrations with the USPTO. Registration with the USPTO is sufficient to establish rights in a mark pursuant to Policy paragraph 4(a)(i). The also Panel finds that the disputed domain name is confusingly similar to Complainant's PRIZEPICKS Mark, that Respondent lacks rights and legitimate interests in the disputed domain name, and that Respondent registered and is using the disputed domain name in bad faith.

 

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 disputed domain name should be cancelled or transferred:

 

(1)       the disputed 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 disputed domain name; and

(3)       the disputed 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 Panel finds that Complainant has rights in the PRIZEPICKS Mark based on its registration of the mark, among others, with the USPTO (e.g., PRIZEPICKS, United States Trademark Registration No. 6,032,925, registered on April 14, 2020, with the first use in commerce of October 23, 2018, in International Classes 9 and 41). Registration of a mark with the USPTO confers upon a complainant trademark rights for purposes of the Policy paragraph 4(a)(i). See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) ("Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.").

 

The Panel additionally finds that the disputed domain name is confusingly similar to the PRIZEPICKS Mark under Policy paragraph 4(a)(i) since it contains Complainant's mark in its entirety, followed by the letters "er" between the term "pick" and the letter "s", and then followed by the generic Top-Level Domain ("gTLD") ".com".  The Panel concludes that the addition of the letters "er" between the term "pick" and the letter "s" does not make the disputed domain name distinct from the PRIZEPICKS Mark. See Smart Ecosystem, Inc. d/b/a Remotasks v. Netlify Inc / Whois Agent, Case No. FA2103001937732 (Apr. 26, 2021) (holding that substituting "er" for the "s" in the REMOTASKS mark for the domain name <remotasker.com> did not "substantially diminish the similarity between the domain name and complainant's mark).

 

Accordingly, the Panel finds that Policy paragraph 4(a)(i) has been established by Complainant.

 

Rights or Legitimate Interests

The Panel finds that Respondent has no rights or legitimate interests in the disputed domain name. Under the Policy, Complainant is required to make out a prima facie case that Respondent lacks rights or legitimate interests in the disputed domain name. Once such a prima facie case is made, Respondent carries the burden of demonstrating rights or legitimate interests in the disputed domain name. See Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) ("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").

 

In this case, Respondent did not carry its burden to come forward with evidence of its rights or legitimate interests in the disputed domain name as it did not submit a response to the Complaint.

 

In support, the Panel finds that Respondent is not commonly known by the disputed domain name or any name similar to it, nor has Complainant authorized or licensed Respondent to use its PRIZEPICKS Mark in the disputed domain name.  In addition, Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use.

 

In particular, the Panel concludes that Respondent does not use the disputed domain name for a bona fide offering of goods and services or legitimate noncommercial or fair use because Respondent used the disputed domain name to activate emails associated with the disputed domain name in furtherance of a phishing scheme, which does not qualify as a bona fide offering of goods or services, nor a legitimate non-commercial or fair use. The phishing scheme purportedly consisted of emails sent by Respondent to Complainant's customers to encourage them to open an account and deposit funds, which they were then unable to withdraw.  Pursuant to Complainant's allegations in its Complaint, Complainant's customers are common targets of phishing scams, pursuant to which they are solicited to deposit funds for online competitions or to provide access to their accounts. After the customer deposits funds or provides access to their accounts, according to Complainant, the funds are no longer accessible, and no profits or prizes are available to withdraw.

 

Complainant did not provide evidence of the fraudulent scheme in its submissions, but Respondent has not submitted any arguments or evidence to rebut Complainant's allegations.

 

Accordingly, the Panel finds that Policy paragraph 4(a)(ii) has been established by Complainant.

 

Registration and Use in Bad Faith

The Panel concludes that Respondent registered and is using the disputed domain name in bad faith as set forth below.

 

First, the Panel finds that Respondent registered and uses the disputed domain to perpetuate a fraudulent email scheme and cause disruption of Complainant's business.  Use of a disputed domain name to send fraudulent emails supports a finding of bad faith registration and use under Policy paragraph 4(b)(iii). As described above, Complainant alleges that Respondent uses an email account associated with the disputed domain name in order to facilitate a fraudulent email scheme, perpetuating a phishing scheme on Complainant's customers to solicit users to open an account and deposit funds, which the user is then unable to withdraw.

 

Second, the use of a disputed domain name to intentionally attempt to attract Internet users to a respondent by creating a likelihood of confusion with a complainant's mark as to the source, sponsorship, affiliation or endorsement of the registrant's website or online location is evidence of registration and use in bad faith.  Bad faith under Policy paragraph 4(b)(iv) can be found where a respondent uses a confusingly similar domain name to falsely indicate an association with a complainant. See AOL LLC v. iTech Ent, LLC, FA 726227 (Forum July 21, 2006).

 

Finally, the Panel finds that Respondent had actual knowledge of Complainant's rights in its PRIZEPICKS Mark when registering the disputed domain name. It strains credulity to believe that Respondent had not known of the Complainant or its PRIZEPICKS Mark when registering the disputed domain name, especially since the disputed domain name contains Complainant's PRIZEPICKS Mark in its entirety, albeit adding the term "er" between the term "pick" and the letter "s", followed by the gTLD "com". Prior knowledge of a complainant's trademarks prior to registering a disputed domain name is sufficient to find bad faith under Policy paragraph 4(a)(iii). See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum February 6, 2014) (finding actual knowledge due to the domain name chosen and the use made of it); see also Yahoo! Inc. v. Butler, FA 744444 (Forum August 17, 2006) (finding bad faith where the respondent was "well-aware" of the complainant's YAHOO! mark at the time of registration).

 

Accordingly, the Panel finds that Policy paragraph 4(a)(iii) has been established by Complainant.

 

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

 

 

 

Lynda M. Braun, Panelist

Dated: March 29, 2025