DECISION

 

Belting Bronco Merchandising Inc. v. Hamza Raza

Claim Number: FA2503002147126

 

PARTIES

Complainant is Belting Bronco Merchandising Inc. ("Complainant"), represented by Peter Nussbaum of Chiesa Shahinian Giantomasi PC, New Jersey, USA. Respondent is Hamza Raza ("Respondent"), Pakistan.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <officialzachbryanmerch.net>, registered with Cloudflare, Inc.

 

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.

 

Héctor Ariel Manoff as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on March 26, 2025; Forum received payment on March 26, 2025.

 

On March 27, 2025, Cloudflare, Inc. confirmed by e-mail to Forum that the <officialzachbryanmerch.net> domain name is registered with Cloudflare, Inc. and that Respondent is the current registrant of the name. Cloudflare, Inc. has verified that Respondent is bound by the Cloudflare, 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, 2025, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 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@officialzachbryanmerch.net. Also on March 28, 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 April 18, 2025, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Héctor Ariel Manoff 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

1- Complainant, Belting Bronco Merchandising Inc., is the trademark holding company of Zach Bryan, an extremely well-known musical artist, who performs and records under the name and mark ZACH BRYAN.

2- Complainant is the owner of all right, title and interest in and to numerous United States Trademark and Service Mark Registrations and Applications for its mark ZACH BRYAN.

3- Complainant is the owner of valid common law rights in the mark ZACH BRYAN which mark has acquired secondary meaning based on Complainant's substantial use of the mark as detailed herein.

4- ZACH BRYAN began his extremely successful career as a musical artist in 2017.

5- ZACH BRYAN's goods and services are promoted via ZACH BRYAN's website located www.zachbryan.com that went live on November 2020 and received well over 15 million site visitors in the past year.

6- Respondent registered the domain name on March 24, 2024.

7- The domain name directs to a website where Respondent is engaged in the sale of a substantial amount of infringing merchandise bearing or utilizing Complainant's ZACH BRYAN mark.

8- The disputed domain name <officialzachbryanmerch.net> includes Complainant's ZACH BRYAN mark in full (together with the generic word "merch") and is confusingly similar to Complainant's trademark and service mark ZACH BRYAN.

9- Respondent has no rights or legitimate interests in the disputed domain name and is not commonly known by the it.

10- Respondent is not licensed or authorized to use Complainant's ZACH BRYAN mark.

11- Respondent is attempting to disrupt Complainant's business by offering unauthorized, competing products for commercial gain.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant, Belting Bronco Merchandising Inc., owns trademark registrations for ZACH BRYAN, filed in 2023 and with first use as from 2017, which refer to an extremely well-known musical artist. Respondent registered the disputed domain name in 2024. Respondent registered and is using the 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 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

Complainant has rights in the ZACH BRYAN marks through trademark registrations filed in July 2023 with first use as from 2017 and use for many years (Exhibits B). See Red Hat, Inc. v. Muhammad Shahzad, FA 1787738 (Forum June 19, 2018) ("Registration of a mark with multiple trademark agencies is sufficient to demonstrate rights to a mark per Policy ¶ 4(a)(i).") see also Bittrex, Inc. v. Domain Privacy Services, FA 1786849 (Forum June 15, 2018) (finding Complainant has trademark rights in the BITTREX mark through registration of the mark with the EUIPO and the USPTO).

 

Since Complainant provides evidence of registration of the ZACH BRYAN, with the USPTO, which were filed and used before the registration date of the disputed domain name, the Panel finds Complainant has demonstrated rights in the ZACH BRYAN mark per Policy ¶ 4(a)(i).

 

In addition, Complainant also holds common law rights in the mark ZACH BRYAN which mark has acquired secondary meaning based on Complainant's substantial use of the mark in albums, YouTube, Spotify, etc. (Exhibit C, D, E, F and G).

 

ZACH BRYAN's goods and services are also included in ZACH BRYAN's website www.zachbryan.com, which was registered in 2019 and live on November 2020. (Exhibit H).

         Complainant argues the disputed domain name is confusingly similar to the ZACH BRYAN mark as it incorporates Complainant's trademarks along with descriptive terms ("official" and "merch") and the gTLD ".net.

Panels have found additional terms insufficient to defeat a finding of confusing similarity. 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."). Further, TLDs are irrelevant for purposes of Policy ¶ 4(a)(i) analysis. See Blue Cross and Blue Shield Association v. Shi Lei aka Shilei, FA 1784643 (Forum June 18, 2018) ("A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax requires TLDs.").

 

Given that Respondent only adds generic terms and TLDs to the ZACH BRYAN mark, the Panel concludes the disputed domain name is confusingly similar to Complainant's marks under Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant argues Respondent has no rights or legitimate interests in the disputed domain name because Respondent is not commonly known by the disputed domain name and Complainant has never licensed rights to or authorized Respondent to use the ZACH BRYAN mark.

 

The Panel finds that Respondent is not commonly known by the <officialzachbryanmerch.net> domain name. Under Policy ¶ 4(c)(ii), relevant WHOIS information, among other evidence, may demonstrate that Respondent is not commonly known by the disputed domain name. See Chevron Intellectual Property LLC v. Fred Wallace, FA 1626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named "Fred Wallace" as registrant of the disputed domain name).

 

In this case Registrant's name is not revealed (Exhibit K), but according to the information provided by Cloudflare, Respondent is mentioned as Hamza Raza. Thus, the Panel concludes that the Respondent is not commonly known by the domain name.

 

Further, there is no evidence to suggest Respondent was authorized, licensed rights to, or otherwise permitted to use the ZACH BRYAN mark. Therefore, the Panel may find Respondent is not commonly known by, and lacks rights or legitimate interests in, the disputed domain name per Policy ¶ 4(c)(ii).

 

Complainant also argues Respondent uses the ZACH BRYAN mark in the domain name and on the resolving sites to confuse consumers and pass off as Complainant.

 

According to the evidence submitted (Exhibit L), Respondent is offering unauthorized, competing products for commercial gain.

 

Previous Panels have found that use of a domain name to mislead and divert customers away from a complainant does not constitute either a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Ripple Labs Inc. v. NGYEN NGOC PHUONG THAO, FA 1741737 (Forum Aug. 21, 2017) ("Respondent uses the [disputed] domain name to divert Internet users to Respondent's website… confusing them into believing that some sort of affiliation exists between it and Complainant… [which] is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)."). In addition, Panels have declined to find a bona fide offering of goods or services or a legitimate noncommercial or fair use of a domain name when a respondent diverts traffic to a site that impersonates a complainant. See Dell Inc. v. Devesh Tyagi, FA 1785301 (Forum June 2, 2018).

 

The Panel agrees that Respondent appears to be passing off as Complainant and confusing consumers through landing pages that include references to products and services provided by Complainant.

 

According to the evidence submitted by Complainant (Exhibit L), Respondent is not using the domain name in connection with a bona fide offering of goods or services under Policy ¶¶ 4(c)(i) and (iii). Respondent uses the subject domain name to impersonate Complainant.

 

Therefore, the Panel agrees that Respondent is not commonly known by the disputed domain name and does not have legitimate interest under Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

Complainant has proved trademark rights, common law rights, and use for several years prior to the domain name's date of registration (Exhibit B, C, D, E and F).

 

Since the disputed domain name includes Complainant's trademark along with generic terms and the site includes references to merchandise related to Zach Bryan, it is clear for this Panel that Respondent had actual knowledge of Complainant's mark when registered the domain name. Registration was done in bad faith.

 

In addition, this Panel finds that the use of the domain name was done in bad faith too since, as mentioned before, Respondent's site includes references to merchandise related Complainant's trademark.

 

The Panel concludes that Respondent has the intention of creating an association with Complainant and its products and services.

 

This Panel concludes that Respondent has registered the domain name with the intent to attract and divert Internet users to the corresponding websites for its own benefit. See Carey Int'l, Inc. v. Kogan, FA 486191 (Forum July 29, 2005) ("[T]he Panel finds that Respondent is capitalizing on the confusing similarity of its domain names to benefit from the valuable goodwill that Complainant has established in its marks. Consequently, it is found that Respondent registered and used the domain names in bad faith under Policy ¶ 4(b)(iv).").

 

The Panel determines that Respondent registered and used the disputed domain name in bad faith under Policy ¶ 4(a)(iii).

 

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 <officialzachbryanmerch.net> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Héctor Ariel Manoff, Panelist

Dated: April 29, 2025