WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
RealNetworks, Inc. v. Domain Admin, PrivacyProtect.org / eMarket Center LLC
Case No. D2013-1725
1. The Parties
The Complainant is RealNetworks, Inc. of Seattle, Washingtom, United States of America, represented internally.
The Respondent is Domain Admin, PrivacyProtect.org of Nobby Beach, Queensland, Australia / eMarket Center LLC, Manila, Philippines.
2. The Domain Name and Registrar
The disputed domain name <zylomgames.org> is registered with Click Registrar, Inc. d/b/a publicdomainregistry.com (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 5, 2013. On October 7, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 8, 2013, the Registrar transmitted by email 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 email communication to the Complainant on the same date, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on October 10, 2013.
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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 17, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was November 6, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 8, 2013.
The Center appointed Miguel B. O'Farrell as the sole panelist in this matter on November 18, 2013. 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
The Complainant claims rights through its subsidiary, GameHouse Europe B.V., in the trademark ZYLOM that has been registered since February 12, 2004, under Community Trade Mark registration No. 003164613 for the following list of services of the Nice Classification:
“Telecommunications; electronic data transfer, including by means of PC, modern and Internet and/or Internet technology” in class 38.
“Entertainment; organization and provision of opportunities for the playing of games whether or not by means of the Internet or of Internet technology” in class 41.
“Design and development of computer software, in particular in connection with interactive games whether or not using the Internet and/or Internet technology” in class 42.
The disputed domain name <zylomgames.org> was registered on September 20, 2009.
5. Parties’ Contentions
The Complainant claims that the ZYLOM trademark is used on a casual computer games portal available at zylom.com and at related ccTLDs domain names.
The Complainant further contends that the disputed domain name <zylomgames.org> simply combines the registered mark ZYLOM with Zylom´s goods and services: games. Thus, the disputed domain name is confusingly similar to the registered mark.
Moreover, the Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name and claims that it was registered and is been used by Respondent en bad faith.
Therefore, the Complainant requests the Panel to order the transfer of the disputed domain name to the Complainant.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
For the Complainant to succeed in this proceeding, under paragraph 4 (a) of the Policy, it must prove that:
(i) The disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) The 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.
In accordance with paragraph 15 (a) of the Rules, the Panel shall decide the Complaint on the basis of the statements and documents submitted in accordance with the Policy, Rules, Supplemental Rules and any principles of law that it deems applicable.
A. Identical or Confusingly Similar
The distinctive element in the disputed domain name <zylomgames.org> is the trademark ZYLOM. In the Panel’s view, the descriptive word “games” is insufficient to prevent the threshold on Internet user’s likelihood of confusion and confusing similarity as a result. Moreover, given the activities in connection with which the trademark ZYLON is used, i.e., games, the inclusion of such word in the disputed domain name <zylomgames.org> tends to strengthen the idea that it refers to or is associated with the owner of the ZYLOM trademark.
Therefore, the Panel finds that the disputed domain name is confusingly similar to the trademark ZYLON in which the Complainant claims undisputed rights through its subsidiary GameHouse Europe B.V.
B. Rights or Legitimate Interests
In accordance with paragraph 4(a) of the Policy, the second element that the Complainant must prove is that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Policy, in paragraph 4(c), sets out various ways in which a respondent may demonstrate rights or legitimate interests in a domain name.
Whilst the Policy states that the complainant must prove each of the elements in paragraph 4, it is often observed that it is difficult for the complainant to prove a negative, i.e., that the respondent has no rights or legitimate interests in a domain name. It has therefore become generally accepted under the Policy that, once a complainant has presented a prima facie showing of a respondent’s lack of rights or legitimate interest in a domain name, the burden of the production of evidence shifts to the respondent. The respondent must then come up with appropriate allegations or evidence demonstrating its rights or legitimate interests in the domain name to refute the prima facie case.
The Panel finds that the Complainant has made a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain names so the burden of production has effectively shifted to the Respondent, who did not reply to the Complainant’s contentions and, therefore, has not made such showing.
For these reasons, and those indicated below, in absence of a plausible explanation from the Respondent, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
From the evidence produced in this proceeding, the Panel finds that the Respondent registered the disputed domain name in bad faith. Clearly, the inclusion of the trademark ZYLOM in the disputed domain name <zylomgames.org> could not have been made simply by chance. Also, the Panel admits the Complainant’s contention that the Respondent is using the disputed domain name in bad faith. This can be seen by the games that are shown in the website Zylomgames.org, from the snapshot taken on October 1, 2013, which is part of the evidence produced by the Complainant.
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 <zylomgames.org> be transferred to the Complainant.
Miguel B. O'Farrell
Date: November 26, 2013