Complainant is Early Warning Services, LLC, United States of America (“United States”), represented by Bryan Cave Leighton Paisner, United States.
Respondent is WhoisGuard Protected, WhoisGuard, Inc., Panama / Cash App, zellenumber, India. 2. The Domain Name and Registrar
The disputed domain names The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 28, 2020. On December 29, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Names. On December 29, 2020, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on January 2, 2021 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 January 6, 2021. 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 January 7, 2021. In accordance with the Rules, paragraph 5, the due date for Response was January 27, 2021. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on January 29, 2021. The Center appointed Marina Perraki as the sole panelist in this matter on February 4, 2021. 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 is an electronic money transfer service provider. Complainant and its licensees provide these services under the ZELLE and ZELLEPAY marks. Complainant’s “Zelle” electronic payment services enable individuals and companies to transfer money between bank accounts. They target a wide consumer base and more than 800 financial institutions worldwide currently use such services. Some of the world’s largest banks offer the ZELLE services to their customers, such as Bank of America, U.S. Bank, Citi, Ally Bank, HSBC, and Wells Fargo. In 2019 alone, the “Zelle” services processed 743 million transactions totaling USD 187 billion in payments. Complainant’s services are provided through its main website at “www.zellepay.com” and also through the websites and mobile computer applications of participating banks, as well as through Complainant’s own mobile computer application, which has millions of enrollments. Complainant holds numerous trademark registrations for ZELLE and ZELLEPAY, including: - United States trademark registration No. 5277307, ZELLE (word mark), filed on March 9, 2016 and registered on August 29, 2017, for services in International Class 36; and - United States Trademark Registration No. 5938276, ZELLEPAY (word mark), filed on March 9, 2016 and registered on December 17, 2019, for services in International Class 36. Complainant also owns many domain names incorporating its ZELLE marks, including the following: The Domain Names were all registered in June 2020, and in particular Complainant asserts that it has established all three elements required under paragraph 4(a) of the Policy for a transfer of the Domain Name. B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings Paragraph 4(a) of the Policy lists the three elements that Complainant must satisfy with respect to the Domain Names: (i) the Domain Names are identical or confusingly similar to a trademark or service mark in which Complainant has rights; and (ii) Respondent has no rights or legitimate interests in respect of the Domain Names; and (iii) the Domain Names have been registered and are being used in bad faith A. Identical or Confusingly Similar Complainant has demonstrated rights through registration and use on the ZELLE and ZELLEPAY marks. The Panel finds that the Domain Names are confusingly similar with the ZELLE and ZELLEPAY trademarks of Complainant. The Domain Names incorporate the said trademarks of Complainant in their entirety. This is sufficient to establish confusing similarity (Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr.,WIPO Case No. D2000-1525). The addition of the words “number”, “phone number”, or “support”, as the case may be, do not prevent a finding of confusing similarity (WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.8). The generic Top-Level Domain (“gTLD”) “.com” is also disregarded, as gTLDs typically do not form part of the comparison on the grounds that they are required for technical reasons only (Rexel Developpements SAS v. Zhan Yequn,WIPO Case No. D2017-0275; Hay & Robertson InternationalLicensing AG v. C. J. Lovik,WIPO Case No. D2002-0122). Complainant has established Policy, paragraph 4(a)(i). B. Rights or Legitimate Interests Pursuant to paragraph 4(c) of the Policy, Respondent may establish its rights or legitimate interests in the Domain Names, among other circumstances, by showing any of the following elements: (i) before any notice to Respondent of the dispute, Respondent’s use of, or demonstrable preparations to use, the Domain Names or a name corresponding to the Domain Names in connection with a bona fide offering of goods or services; or (ii) Respondent (as an individual, business, or other organization) has been commonly known by the Domain Names, even if it has acquired no trademark or service mark rights; or (iii) Respondent is making a legitimate noncommercial or fair use of the Domain Names, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue. The Panel concludes that Respondent lacks rights or legitimate interests in respect of the Domain Names. Respondent has not submitted any response and has not claimed any such rights or legitimate interests with respect to the Domain Names. As per Complainant, Respondent was not authorized to register the Domain Names. There is no evidence that Respondent has been commonly known by the Domain Names. Prior to the notice of the dispute, Respondent did not demonstrate any use of the Domain Names or a trademark corresponding to the Domain Names in connection with a bona fide offering of goods or services. On the contrary, as Complainant demonstrated, the Domain Names resolved to websites which contained sponsored listings and currently resolve to inactive pages. In addition, the Domain Names consist of Complainant’s marks and the non-distinctive terms “number”, “phone number”, or “support”, and thus carry a risk of implied affiliation (WIPO Overview 3.0, section 2.5.1). The Panel finds that these circumstances do not confer upon Respondent any rights or legitimate interests in respect of the Domain Names. Accordingly, Complainant has put forward a prima facie case that Respondent lacks rights or legitimate interests in the Domain Names, which has not been rebutted by Respondent. Complainant has established Policy, paragraph 4(a)(ii). C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy provides that the following circumstances, “in particular but without limitation,” are evidence of the registration and use of the Domain Names in “bad faith”: (i) circumstances indicating that Respondent has registered or has acquired the Domain Names primarily for the purpose of selling, renting, or otherwise transferring the Domain Names registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the Domain Names; or (ii) Respondent has registered the Domain Names in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or (iii) Respondent has registered the Domain Names primarily for the purpose of disrupting the business of a competitor; or (iv) by using the Domain Name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other online location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location. The Panel concludes that Respondent has registered and used the Domain Names in bad faith. Because the ZELLE and ZELLEPAY marks had been widely used and registered by Complainant before the Domain Name registrations, the Panel finds it more likely than not that Respondent had Complainant’s marks in mind when registering the Domain Names (Tudor Games, Inc. v. Domain Hostmaster, Customer ID No. 09382953107339 dba Whois Privacy Services Pty Ltd / Domain Administrator, Vertical Axis Inc.,WIPO Case No. D2014-1754; Parfums Christian Dior v. Javier Garcia Quintas and Christiandior.net,WIPO Case No. D2000-0226). This also follows from the fact that per the WhoIs data, Respondent registered the Domain Names under “Cash App” namely a name describing the nature of business of Complainant. Respondent knew or should have known about Complainant’s rights, as such knowledge is readily obtainable through a simple browser search (See Caesars World, Inc. v. Forum LLC,WIPO Case No. D2005-0517; Compart AG v. Compart.com / Vertical Axis Inc.,WIPO Case No. D2009-0462), also in view of Complainant’s nature of business, namely electronic money transfers. Furthermore, Respondent could have conducted a trademark search and would have found Complainant’s prior registrations in respect of ZELLE and ZELLEPAY (Citrix Online LLC v. Ramalinga Reddy Sanikommu Venkata,WIPO Case No. D2012-1338). As Complainant demonstrated, the Domain Names were initially used to post “sponsored listings” which suggested that Respondent was seeking to extract click-through income from the attempts made by Internet users searching for Complainant. It has been recognized that such use of another’s trademark to generate revenue from Internet advertising can constitute registration and use in bad faith (McDonald’s Corporation v. ZusCom,WIPO Case No. D2007-1353; Volkswagen Aktiengesellschaft v. Robert Brodi,WIPO Case No. D2015-0299; SAP SE v. Domains by Proxy, LLC / Kamal Karmakar,WIPO Case No. D2016-2497; WIPO Overview 3.0, section 3.5). The Domain Names currently lead to inactive websites. The non-use of a domain name would not prevent a finding of bad faith (See Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003; WIPO Overview 3.0, section 3.3). Under these circumstances and on this record, the Panel finds that Respondent registered and used the Domain Names in bad faith. Complainant has established Policy, paragraph 4(a)(iii). 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 names, Marina Perraki
Sole Panelist
Date: February 18, 2021
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