Complainant is Zeel Networks, Inc. of New York, New York, United States of America ("United States"), represented by Symbus Law Group, LLC, United States.
Respondent is Domain Administrator, See PrivacyG of Phoenix, Arizona, United States / Domain Admin, This Domain is For Sale, Home of Domains of Phoenix, Arizona, United States. 2. The Domain Name and Registrar
The disputed domain name is registered with NameSilo, LLC (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 26, 2018. On March 26, 2018, the Center transmitted by e-mail to the Registrar a request for registrar verification in connection with the disputed domain name. On March 26, 2018, the Registrar transmitted by e-mail to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an e-mail communication to Complainant on March 29, 2018 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on April 3, 2018.
The Center verified that the Complaint together with the amended Complaint satisfied 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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on April 10, 2018. In accordance with the Rules, paragraph 5, the due date for Response was April 30, 2018. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on May 4, 2018.
The Center appointed Georges Nahitchevansky as the sole panelist in this matter on May 9, 2018. 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
Complainant, Zeel Networks, Inc., is a mobile on-demand massage company. Complainant operates a network of licensed and insured massage therapists in more than 85 cities across the United States under the name and mark ZEEL. Complainant is the owner of a number of registrations that incorporate the ZEEL mark in connection with its massage therapy services, including registrations in the following jurisdictions for the ZEEL mark standing alone: (i) the United States (Registration Nos. 44657536 and 4445231, which issued to registration on December 3, 2013 and January 14, 2014 respectively), (ii) Canada (Registration No. TMA977210, which issued to registration on July 31, 2017), and (iii) the European Union (Registration No. 1307648, which issued to registration on May 16, 2016). Complainant also uses the mark ZEEL SPA for massage staffing services for spas and hotels, and is the owner of a pending United States trademark application for the ZEEL SPA mark (Serial No. 87499008), which was filed on June 21, 2017.
Respondent registered the disputed domain name on June 24, 2017. The disputed domain name has resolved to a web page that advised that the disputed domain name was for sale for USD 950. The disputed domain name currently resolves to a parked page provided by NameS, the registrar for the disputed domain name. 5. Parties' Contentions A. Complainant
Complainant asserts that it adopted the ZEEL mark in 2010 and has used the ZEEL mark in connection with its mobile on-demand massage services since 2012. Complainant also asserts that it adopted and has been using the mark ZEEL SPA in connection with massage staffing services for spas, hotels and salons since 2016. Complainant maintains that the ZEEL trademark is well-known in the United States in the massage and spa industry on account of widespread news coverage about the company and its services.
Complainant contends that the disputed domain name is identical or confusingly similar to Complainant's ZEEL mark as it contains the ZEEL mark in its entirety in conjunction with the exact term that Complainant uses for its spa staffing services Complainant also contends that the term ZEEL has no meaning apart from its meaning in Complainant's mark.
Complainant argues that Respondent does not have a legitimate interest in the disputed domain name because Respondent purposefully registered a domain name that incorporates the entire ZEEL mark in connection with the word "spa," which is the exact term Complainant uses for its spa staffing services. Complainant further asserts that Respondent registered the confusingly similar disputed domain name just weeks after the ZEEL mark was featured on the television program. The Today Show, and a day after Complainant issued a press release that it was expanding its ZEEL services to Sacramento, California.
Lastly, Complainant argues that the disputed domain name was registered and is being used in bad faith because Respondent has no rights in the ZEEL mark. Complainant asserts Respondent's bad faith is established by the fact that (i) there is no evidence that Respondent registered the disputed domain name for a bona fide purpose, (ii) Respondent registered the disputed domain name shortly after Complainant and its ZEEL services were featured on, The Today Showand in press releases, and after Complainant had filed a trademark application in the United States for the ZEEL SPA mark, and (iii) Respondent's only use of the disputed domain name has been with a parked page that has offered to sell the disputed domain name for USD950. Complainant further argues that Respondent's bad faith registration and use is established through multiple prior UDRP decisions against Respondent that show that Respondent has a bad faith pattern of registering domain names that consist of marks found in trademark applications that have been filed by other parties B. Respondent
Respondent did not reply to Complainant's contentions. 6. Discussion and Findings
Under paragraph 4(a) of the Policy, to succeed Complainant must satisfy the Panel that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
Here, although Respondent has failed to respond to the Complaint, the default does not automatically result in a decision in favor of Complainant, nor is it an admission that Complainant's claims are true. The burden remains with Complainant to establish the three elements of paragraph 4(a) of the Policy by a preponderance of the evidence. A panel, however, may draw appropriate inferences from a respondent's default in light of the particular facts and circumstances of the case, such as regarding factual allegations that are not inherently implausible as being true. See section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"); see also The Knot, Inc. v. In Knot We Trust LTD,WIPO Case No. D2006-0340. A. Identical or Confusingly Similar
Ownership of a trademark registration is generally sufficient evidence that a complainant has the requisite rights in a mark for purposes of paragraph 4(a)(i) of the Policy. WIPO Overview 3.0 at section 1.2.1. Complainant has provided evidence that it owns trademark registrations for the ZEEL mark in connection with its mobile on-demand massage services. Complainant has also submitted evidence that it adopted and started using the ZEEL SPA mark for it spa staffing services in late 2016, and that Complainant filed a trademark application in the United States for the ZEEL SPA mark on June 21, 2017, three days before Respondent registered the disputed domain name. Although a pending trademark application does not typically in and of itself establish trademark rights within the meaning of UDRP paragraph 4(a)(i) (see WIPO Overview 3.0 of section 1.1.4), based on the record the Panel finds that Complainant had developed some common law rights in ZEEL SPA for purposes of the Policy prior to Respondent's registration of the disputed domain name.1
With Complainant's rights in the ZEEL and ZEEL SPA marks established, the remaining question under the first element of the Policy is whether the disputed domain name (typically disregarding the generic Top-Level Domain ".com") is identical or confusingly similar with Complainant's marks. See B & H Foto & Electronics Corp. v. Domains by Proxy, Inc. / Joseph Gross,WIPO Case No. D2010-0842. The threshold for satisfying this first element is low and generally panels have found that fully incorporating the identical mark in a disputed domain name is sufficient to meet the threshold.
In the instant proceeding, the disputed domain name is confusingly similar to Complainant's ZEEL mark as it incorporates the ZEEL mark in its entirety at the head of the disputed domain name. Moreover, the disputed domain name is identical to Complainant's ZEEL SPA mark as it merely replicates the ZEEL SPA mark in its entirety. The Panel therefore finds that Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy in establishing its rights in Complainant's ZEEL and ZEEL SPA marks and in showing that the disputed domain name is identical or confusingly similar to those trademarks. B. Rights or Legitimate Interests
Under paragraph 4(a)(ii) of the Policy, the complainant must make at least a prima facie showing that the respondent possesses no rights or legitimate interests in a disputed domain name. Malayan Banking Berhad v. Beauty, Success & Truth International,WIPO Case No. D2008-1393. Once the complainant makes such a prima facie showing, the burden of production shifts to the respondent, though the burden of proof always remains on the complainant. If the respondent fails to come forward with evidence showing rights or legitimate interests, the complainant will have sustained its burden under the second element of the UDRP.
The evidence submitted in this proceeding shows that Complainant adopted and was using both the ZEEL and ZEEL SPA marks prior to Respondent's registration of the disputed domain name. In addition, the evidence submitted shows that Complainant received much unsolicited media attention for its mobile on-demand massage services and massage staffing services for spas, hotels and salons before Respondent registered the disputed domain name. Given that Respondent registered the disputed domain name that copies both the ZEEL and ZEEL SPA marks in their entirety and did so after Complainant's rights were established in those marks, it appears more likely than not that Respondent was aware of Complainant's rights when it registered the disputed domain name and then sought to profit from the disputed domain name by attempting to sell it for a price in excess of Respondent's out of pocket expenses. Indeed, the likelihood that Respondent registered the disputed domain name based on the ZEEL and ZEEL SPA marks for profit, and not for some other purpose, is buttressed by the fact that Respondent has an established pattern of registering domain names based on the marks and names of other parties in order to profit from such.
In sum, given that Complainant has established with sufficient evidence that it owns rights in the ZEEL and ZEEL SPA marks, and given Respondent's above noted actions and failure to file a response, the Panel concludes that Respondent does not have a right or legitimate interest in the disputed domain name and that none of the circumstances of paragraph 4(c) of the Policy are evident in this case. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides a non-exhaustive list of circumstances indicating bad faith registration and use on the part of a domain name registrant, namely:
"(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out of pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location."
In the present case, Respondent has registered the disputed domain name that fully incorporates Complainant's ZEEL and ZEEL SPA marks. The evidence before the Panel shows that Complainant has used and promoted its mobile on-demand massage and massage staffing services for spas, hotels and salons under the ZEEL and ZEEL SPA marks, and has received much unsolicited media coverage for its services. It is thus reasonable to conclude that the disputed domain name is likely to be viewed by consumers as linked to Complainant and/or to a website that relates to Complainant's mobile on-demand massage and/or massage staffing services. Moreover, as the evidence submitted by Complainant, none of which is contested by Respondent, shows that Respondent's only use of the disputed domain name since its registration on June 24, 2017 has been with a web page offering the disputed domain name for sale for a price in excess of Respondent's out of pocket expenses, it appears more likely than not that Respondent registered and has used the disputed domain name to opportunistically profit in bad faith from the disputed domain name's likely association with Complainant and/or Complainant's ZEEL or ZEEL SPA marks/services.
Accordingly, the Panel finds that Complainant succeeds under this element of the Policy. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to the Complainant.
Georges Nahitchevansky
Sole Panelist
Date: May 25, 2018
1 The Panel also notes that although Complainant has disclaimed the word "spa" in the United States application for ZEEL SPA, Complainant's common law rights in ZEEL SPA as a whole are not diminished.
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