The Complainant is VNG Corporation, Viet Nam, internally represented.
The Respondent is Teri Plummer, United States of America (“United States”).
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 15, 2021. On July 15, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 15, 2021, the Registrar 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 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 the Respondent of the Complaint, and the proceedings commenced on July 20, 2021. In accordance with the Rules, paragraph 5, the due date for Response was August 9, 2021. The Response was filed on July 27, 2021.
The Center appointed Assen Alexiev as the sole panelist in this matter on September 1, 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 BackgroundThe Complainant is a leading Internet and technology company in Viet Nam and Southeast Asia, established in 2004. It operates the ZING ME social network, film and music streaming services, an electronic magazine, and a gaming platform. The Complainant operates these services from websites located at the domain names
The Complainant is the owner of the International trademark ZING with registration No. 1157071, registered on September 12, 2012 for services in International Classes 35, 38, 41, and 42.
The disputed domain name was registered on October 23, 2013. It resolves to a website that offers the disputed domain name for sale.
5. Parties’ Contentions A. ComplainantThe Complainant maintains that its ZING trademark is well known because the Complainant has used it in relation to its social network, film and music streaming services, electronic magazine and gaming platform.
The Complainant states that the disputed domain name fully incorporates the ZING trademark, and is identical to it.
According to the Complainant, the Respondent has no rights or legitimate interests in respect of the disputed domain name, because the Complainant’s trademark was registered prior to its registration. The Complainant points out that the disputed domain name resolves to a domain marketplace where it is offered for sale, and the Respondent has set the minimum price at USD 9,999.
The Complainant contends that the disputed domain name was registered and is being used in bad faith. According to it, the Respondent registered the disputed domain name with the purpose to sell it, and the minimum sale price set by the Respondent shows that it was aware of the ZING trademark and its reputation when registering the disputed domain name.
B. RespondentThe Respondent claims that the disputed domain name is identical to the English word “zing”, but not to the unique design used in the Complainant’s trademark.
According to the Respondent, domain names that are composed of common words or short phrases are inherently valuable. Investing in these domain names for resale or targeted pay-per-click (“PPC”) monetization has been ruled to convey legitimate rights, so long as the domain name owner does not act in bad faith.
The Respondent states that he began investing in domain names in 2008 and has since then purchased more than 15,000 domain names. He notes that despite all past and current domain name registrations, he has never had a single UDRP case decided against him. The Respondent states that he did not know of the Complainant’s company when he purchased the disputed domain name incorporating the dictionary word “zing”, and notes that he has never approached the Complainant to sell the disputed domain name to him and has never used the disputed domain name in any way that would confuse the Complainant’s customers or promote its competitors.
The Respondent requests a finding of reverse domain hijacking against the Complainant. He submits that on July 12, 2021, he received and declined a purchase offer for the disputed domain name that was 66 per cent less than his asking price for it. The would-be buyer immediately replied with a slightly higher offer, which he also declined. Three days later – on July 15, 2021, the Respondent received notice that the disputed domain name had been locked due to the Complaint. The Respondent states that he does not have proof that the Complainant submitted the offers to buy on July 12, 2012, but suspects that this was the case. According to the Respondent, the Complainant has invested little or no effort into researching the established requirements to win this case, let alone given any thought to the burden that bad faith complaints place on the Panel and the Respondent.
6. Discussion and FindingsPursuant to the Policy, paragraph 4(a), the Complainant must prove each of the following to justify the transfer of the disputed domain name:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name was registered and is being used in bad faith.
A. Identical or Confusingly SimilarThe Complainant has provided evidence and has thus established its rights in the ZING trademark.
The Panel notes that a common practice has emerged under the Policy to disregard in appropriate circumstances the Top-Level Domain (“TLD”) section of domain names for the purposes of the comparison under the Policy, paragraph 4(a)(i). The Panel sees no reason not to follow the same approach here, so it will disregard the “.me” TLD section of the disputed domain name.
The relevant part of the disputed domain name is therefore the element “zing”, which is identical to the word element of the ZING trademark. In view of this, the Panel finds that the disputed domain name is identical to the ZING trademark in which the Complainant has rights.
B. Rights or Legitimate InterestsThe Complainant asserts that the Respondent does not have rights or legitimate interests in the disputed domain name because the Complainant’s trademark was registered before the disputed domain name, and the Respondent offers it for sale with a minimum price of USD 9,999.
The Respondent contends that it has acquired the disputed domain name as an investment in its value as a dictionary word and without knowledge of the Complainant, and that he has never targeted the Complainant or offered the disputed domain name for sale to it.
Having carried out a limited independent research1 into online dictionaries, the Panel finds that a dictionary word “zing” indeed exists in English, with several different meanings, including “a shrill humming noise”, “an enjoyably exciting or stimulating quality”, and “a sharply piquant flavor”2 and that it is apparently being used online by different entities for different purposes. The Complainant has not presented any evidence that its ZING trademark is well-known or recognized as associated with the Complainant.
The Complainant has provided no evidence to create an inference that when registering the disputed domain name, the Respondent had knowledge of the Complainant or that it has targeted it with its offer for sale of the disputed domain name or otherwise. It is well accepted that acquisitions of domain names by domain name investors would normally be legitimate as long as no third-party trademarks are targeted.
In view of the above, the Panel finds that the Complainant has not established that the Respondent does not have rights and legitimate interests in the disputed domain name.
C. Registered and Used in Bad FaithThe Complainant’s allegation that the disputed domain name was registered and is being used in bad faith by the Respondent is based on the fact that the disputed domain name is being offered for sale at a significant price. However, the disputed domain name is a dictionary word in English potentially with uses by multiple parties, and there is no evidence that the Respondent had knowledge of the Complainant when registering the disputed domain name or that he has targeted the Complainant with the registration (and use) of the disputed domain name. Neither is there any evidence that the disputed domain name was registered for the purpose of selling it to the Complainant or to a competitor of the Complainant for valuable consideration in excess of the Respondent’s out-of-pocket costs directly related to the disputed domain name.
On the basis of all the above, the Panel finds that the Complainant has not established that the Respondent has registered and is using the disputed domain name in bad faith.
D. Reverse Domain Name HijackingThe Respondent requests a finding that the Complainant has engaged in reverse domain name hijacking (“RDNH”).
Paragraph 15(e) of the UDRP Rules provides that, if “after considering the submissions the panel finds that the complaint was brought in bad faith, for example in an attempt at Reverse Domain Name Hijacking or was brought primarily to harass the domain-name holder, the panel shall declare in its decision that the complaint was brought in bad faith and constitutes an abuse of the administrative proceeding”.
As summarized in Section 4.16 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), the reasons articulated by panels for finding RDNH include: (i) facts which demonstrate that the complainant knew it could not succeed as to any of the required three elements – such as the complainant’s lack of relevant trademark rights, clear knowledge of respondent rights or legitimate interests, or clear knowledge of a lack of respondent bad faith, such as registration of the disputed domain name well before the complainant acquired trademark rights, (ii) facts which demonstrate that the complainant clearly ought to have known it could not succeed under any fair interpretation of facts reasonably available prior to the filing of the complaint, including relevant facts on the website at the disputed domain name or readily available public sources such as the WhoIs database, (iii) unreasonably ignoring established Policy precedent notably as captured in this WIPO Overview – except in limited circumstances which prima facie justify advancing an alternative legal argument, (iv) the provision of false evidence, or otherwise attempting to mislead the panel, (v) the provision of intentionally incomplete material evidence – often clarified by the respondent, (vi) the complainant’s failure to disclose that a case is a UDRP refiling, (vii) filing the complaint after an unsuccessful attempt to acquire the disputed domain name from the respondent without a plausible legal basis, (viii) basing a complaint on only the barest of allegations without any supporting evidence.
The Respondent states that someone unsuccessfully attempted to purchase the disputed domain name from him and that the Complaint was filed only three days after, but has not submitted any correspondence in this regard, and the Panel is not satisfied that any of the other situations mentioned in Section 4.16 of the WIPO Overview 3.0 has taken place. Panels have consistently found that the mere lack of success of a complaint is not itself sufficient for a finding of RDNH. In this proceeding, the Complainant has failed to establish that the Respondent did not have rights or legitimate interests in the disputed domain name and that he has acted in bad faith, but there is no evidence supporting a conclusion that the Complainant knew or should have known that it could not succeed, as the disputed domain name was registered after the ZING trademark and does not resolve to an active website referring to any dictionary meaning of the word “zing”, but is only offered for sale.
In view of the above, the Panel declines to make a finding of RDNH against the Complainant.
7. DecisionFor the foregoing reasons, the Complaint is denied.
Assen Alexiev
Sole Panelist
Date: September 15, 2021
1 See section 4.8 of the WIPO Overview 3.0 on the acceptability of a limited independent research by the Panel.
2 See “https://www.merriam-webster.com/dictionary/zing”.