WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Zynga Game Network Inc. v. Alexandru Mihalache Case No. D2009-0716 1. The Parties
The Complainant is Zynga Game Network Inc. of San Francisco, United States of America represented by Moses & Singer LLP, United States of America.
The Respondent is Alexandru Mihalache of Bacau, Romania. 2. The Domain Names and Registrar
The disputed domain names and are registered with GoD, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 30, 2009. On June 2, 2009 the Center transmitted by email to GoD, Inc. a request for register verification in connection with the disputed domain names. On June 2, 2009, GoD, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint, complied with the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on June 9, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was June 29, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on June 30, 2009.
The Center appointed Clive Duncan Thorne as the sole panelist in this matter on July 6, 2009. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background
In the absence of a Response the Panel relies upon the facts and evidence submitted by the Complainant which it accepts as true and appropriate.
The Complainant, Zynga Game Network Inc. (the “Complainant”) is a leading social gaming company providing online poker games, word games, board games, role playing games and party games found on popular social networking sites such as Facebook, MySpace, Bebo, Friendster, Tagged, Yahoo!, Hi5, the iPhone and the iPod Touch.
The Complainant has been using the ZYNGA trade mark (the “Mark”) in commerce in connection with social gaming, including its popular Texas Hold ‘Em poker game, since June, 2007, as set out in the U.S. trademark application serial number 77684104.
The Complainant coined the term “Zynga” because it is named after the Complainant's chief executive officer's dog, as depicted in Exhibits 4, 8 and 9 to the Complaint. It began use of the Mark prior to the registration of the Respondent's domain names.
The Complainant first made trademark use of the Mark in June 2007 and claimed that date as its first use date in its United States trademark application for ZYNGA, serial number 77684104. A copy of the Complainant's US trademark online status printout for the application for the Mark is attached as Exhibit 4 to the Complaint. This application has not been withdrawn or opposed.
The Complainant is the largest social gaming company with more than 9.5 million daily users and 45 million monthly users. This is shown by Exhibit 5. The Complainant's Zynga Games were a runaway success prior to the date the Respondent registered the domain names and they continue to be so. In July 2008 there were over 1.3 million daily active users and 20 million registered users. As of April 21, 2009 the Complainant became the largest application developer on Facebook.
The Complainant registered the domain name on November 2, 2007 which it uses to host a website to communicate to the public about Zynga Games. Details are set out in Exhibit 8 to the Complaint. The Complainant also makes use of the Mark when it distributes games on social networks such as Facebook. At Exhibit 9 to the Complaint is evidence of the Mark affixed to the home page of one of its poker games. These social networks are accessible worldwide. Annexed as Exhibit 10 to the Complaint are copies of printouts of articles from various sources including Business Week that estimate the Complainant to have annual sales ranging from USD 50 million to as much as USD 100 million.
Exhibited at Exhibit 11 is a copy of an article from Sociable Blog dated January 15, 2008 showing part of a screenshot depicting the Complainant's trademark use of the Mark. Further evidence of the use of the Mark is shown in Exhibits 12 to 14 of the Complaint. 5. Parties' Contentions A. Complainant
The Complainant contends that:
(i) The Respondent's domain names are similar to the Complainant's Mark.
(ii) The Respondent has no rights or legitimate interests in the disputed domain name because:
(a) the Complainant is not affiliated in any way with the Respondent;
(b) the Complainant has never authorised the Respondent to register or use the domain names.
(iii) The Respondent has registered and is using the domain names in bad faith.
(a) The Complainant relies upon the widespread knowledge, goodwill and reputation represented by the use of the Mark;
(b) The use by the Respondent of the domain names to mislead consumers;
(c) The Respondent's actions are “intentional, wilful and in bad faith and were committed with full knowledge of the use by the Respondent of the Complainant's Mark”. B. Respondent
The Respondent has not replied to the Complainant's contentions. 6. Discussions and Findings A. Identical or Confusingly Similar
The Complainant's relies upon the Mark. The Complainant submits that the two domain names in dispute incorporate non-distinctive elements, i.e., “buy” and “cheap” both in relation to “chips”. The Complainant submits that the use in both domain names of the suffix “chips” reinforces the association of the domain names with the Complainant's Mark. It submits that the domain names are confusingly similar to the Complainant's Mark.
In the absence of any evidence or submissions to the contrary the Panel accepts the Complainant's submissions and finds that the Respondent's domain names are confusingly similar to the Complainant's Mark. B. Rights or Legitimate Interests
The Complainant points out it is not affiliated in any way with the Respondent and at no time has authorised the Respondent to register or use the disputed domain names or the name “ZYNGA” or the Mark. Accordingly the Respondent has no rights or legitimate interests in the Mark.
The Complainant also submits that the Respondent is not commonly known by the name ZYNGA or any variation of ZYNGA. There is no evidence of the Respondent having trademark rights in the Mark.
The Complainant points out that the Respondent's use of the Mark on both websites accessible by the domain names in dispute and where it purports to sell poker chips compatible with and authorised by the Complainant is evidence of the Respondent's knowledge of the Mark prior to the Respondent's registration of the domain names.
Taking these factors as a whole the Panel finds that there is sufficient evidence to demonstrate that the Respondent has no rights or legitimate interests in the Mark. Moreover there are no submissions or evidence to the contrary from the Respondent. C. Registered and Used in bad faith
The Complainant submits that the Respondent registered the domain names to falsely attract Internet users searching for information about the Complainant to purchase virtual poker chips from ZYNGA for use in ZYNGA online games and/or to misled and confuse consumers as to the origin, source or sponsorship of the purchaser's website and goods. Given the lack of a legitimate basis for the use of the Mark the only reasonable inference is that the Respondent has acted in bad faith with intent to profit from the reputation and goodwill in the Mark.
The Complainant also submits that the Respondent is well aware of the valuable goodwill and reputation represented by the ZYNGA mark. The Mark is recognised and relied upon by online gaming consumers throughout the world to identify and distinguish Zynga's games and services from the goods and services of others.
The Complainant points out that as a consequence of the Respondent's conduct the public will be mislead as to source, sponsorship or origin of the information and products offered on the links connected to any website using the domain names and this is evidence of intentional deception. In summary it submits that the Respondent's actions are intentional, wilful and in bad faith and were committed with full knowledge of the use by the Complainant of the Mark and the Complainant's rights to use and licence the Mark.
There are no submissions or evidence to the contrary from the Respondent.
Taking into account the Complainant's submissions as a whole in relation to bad faith the Panel accepts that there is sufficient evidence to show both registration and use in bad faith and accordingly finds for the Complainant in respect of this element. 7. Decision
For the all foregoing reasons and in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain names and be transferred to the Complainant.
Clive Duncan Thorne
Sole Panelist
Dated: July 20, 2009
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