WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Kzen Networks Ltd. v. Withheld for Privacy Purposes, Privacy service provided by Withheld for Privacy ehf / Ezekiel Edegware
Case No. D2021-2686
1. The Parties
The Complainant is Kzen Networks Ltd., Israel, represented internally.
The Respondent is Withheld for Privacy Purposes, Privacy service provided by Withheld for Privacy ehf / Ezekiel Edegware, Nigeria.
2. The Domain Name and Registrar
The disputed domain name <zengotrades.com> is registered with NameCheap, Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 17, 2021. On August 17, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 17, 2021, 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 August 24, 2021 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 August 29, 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 the Respondent of the Complaint, and the proceedings commenced on September 10, 2021. In accordance with the Rules, paragraph 5, the due date for Response was September 30, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 7, 2021.
The Center appointed Knud Wallberg as the sole panelist in this matter on October 18, 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
The Complainant is an Israeli company who offers technical expertise to address the operational and security challenges of crypto users around the world and is the developer and creator of the ZenGo wallet.
The Complainant is the proprietor of registered trademarks of a figurative mark that contains the word “ZenGo”, including but not limited to
- United States registration number 5930599, registered on December 10, 2019 for goods and services in classes 9, 36 and 42; and
- European Union registration number 018004761 registered on August 5, 2019 for goods and services in classes 9, 36 and 42.
The Complainant has used the ZenGo mark extensively, and through this use the mark has become a well-known mark that distinguishes the Complainant’s products and services throughout the world.
The principal domain name that is used by the Complainant is <zengo.com>.
The disputed domain name was registered on April 14, 2021. At the time of filing of the Complaint the disputed domain name was used for a website which purported to offer Forex and Cryptocurrency Investments under the name ZenGo Trades. The disputed domain name does currently not resolve to an active website.
5. Parties’ Contentions
The Complainant asserts that the disputed domain name is identical or confusingly similar to the Complainant’s registered and well-known trademark ZenGo, since it fully incorporates the Complainant’s mark.
The Complainant further asserts that the Respondent has no rights or legitimate interests in respect of the disputed domain name that is the subject of the Complaint. The Respondent has made no use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services, nor has the Respondent as an individual acquired trademark or service mark rights in the disputed domain name. Furthermore, the Respondent is not making fair use of the disputed domain name.
The Complainant finally asserts that the disputed domain name was registered and is being used in bad faith. The Respondent is thus infringing upon the Complainant’s well-known trademark with a clear intent for commercial gain.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 15(a) of the Rules the Panel shall decide the Complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
Paragraph 4(a) of the Policy directs that a complainant must prove each of the following:
(i) that the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) that the respondent has no rights or legitimate interests in respect of the domain name; and
(iii) that the domain name has been registered and is being used in bad faith.
Paragraph 4(a) of the Policy states that the burden of proving that all these elements are present lies with the Complainant. At the same time, in accordance with paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules, or any request from the Panel, the Panel shall draw such inferences therefrom as it considers appropriate.
A. Identical or Confusingly Similar
The Panel finds that the disputed domain name is confusingly similar (in the sense of the Policy) to the Complainant’s registered trademark ZenGo, since the disputed domain name contains this mark in its entirety with the addition of the descriptive term “trades” as suffix. The generic Top-Level Domain (“gTLD”) “.com” is a standard registration requirement and as such it is generally disregarded under the first element confusing similarity test. See section 1.11.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).
The Panel finds that the conditions in paragraph 4(a)(i) of the Policy are therefore fulfilled in relation to the disputed domain name.
B. Rights or Legitimate Interests
It is obvious from the Complaint, that the Complainant has not licensed or otherwise permitted the Respondent to use the trademark ZenGo.
Further, given the circumstances of this case, the Panel finds that the Complainant has established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. The Respondent has not rebutted this. Furthermore, the way the Respondent has been using the disputed domain name, supports a finding that the Respondent lacks rights or legitimate interests in the disputed domain name.
Consequently, the Panel finds that the conditions in paragraph 4(a)(ii) of the Policy are also fulfilled.
C. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy requires the complainant to prove both registration and use of a domain name in bad faith. Paragraph 4(b) of the Policy provides examples of circumstances, which shall be evidence of registration and use in bad faith:
(i) circumstances indicating that the respondent has registered or has acquired the disputed 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 the holder’s documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent has registered the disputed 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 the respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the disputed domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent’s website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on the holder’s website or location.
Accordingly, for the Complainant to succeed, the Panel must be satisfied that the disputed domain name has been registered and is being used in bad faith.
Given the circumstances of the case, including the use of the Complainant’s trademark ZenGo, and the way the disputed domain name has been used, it is obvious to the Panel in the current circumstances that the Respondent registered the disputed domain name in bad faith.
At the time of the filing of the Complaint, the disputed domain name was used for a website, which, inter alia by using the name “ZenGo Trades” and by using a stylized “Z” in the same style and colour as the “Z” in the Complainant´s trademark, clearly gave the Internet user the impression that the website was either an official website of the Complainant, or a website that was affiliated with the Complainant, which is not the case. The Panel therefore finds that the disputed domain name has been used in bad faith to intentionally attempt “to attract, for commercial gain, Internet users to the Respondent’s website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website”. The fact that the website appears to be unavailable at present does not alter this finding.
Noting that the disputed domain name incorporates the Complainant’s distinctive trademark ZenGo, the descriptive term “trades” and the gTLD “.com”; that the Respondent has not replied to the Complainant’s contentions, and that there appears to be no conceivable good faith use that could be made by the Respondent of the disputed domain name, and considering all the facts and evidence of the case, the Panel finds that the requirements of paragraph 4(a)(iii) of the Policy are also fulfilled in this case.
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 <zengotrades.com> be transferred to the Complainant.
Date: November 1, 2021