WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
ZB, N.A. v. Cade Farber, Autogross
Case No. D2018-2158
1. The Parties
The Complainant is ZB, N.A. of Salt Lake City, Utah, United States of America (“US” or “United States”), represented by TechLaw Ventures, PLLC, US.
The Respondent is Cade Farber, Autogross of San Antonio, Texas, US.
2. The Domain Name and Registrar
The disputed domain name <amazing.cash> is registered with GoDaddy.com, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 21, 2018. On September 24, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 24, 2018, 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 September 28, 2018, 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 amendment to the Complaint on September 28, 2018.
The Center verified that the Complaint together with the amendment to 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 October 4, 2018. In accordance with the Rules, paragraph 5, the due date for Response was October 24, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 25, 2018.
The Center appointed Evan D. Brown as the sole panelist in this matter on November 8, 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
The Complainant is in the financial services industry and provides, among other things, credit card and debit card services. The Complainant has been using its AMAZING (and Design) mark in commerce since at least as early as January 14, 2009 and obtained registration for such mark in the United States (Reg. No. 4,365,395) on July 9, 2013. It has been using its AMAZING CASH mark in commerce since at least as early as May 16, 2012 and obtained registration for such mark in the United States (Reg. No. 4,251,486) on November 27, 2012.
The Respondent registered the disputed domain name on September 13, 2018 and has used the disputed domain name, without the Complainant’s authorization, to display pay-per-click links, including links to services competitive to those of the Complainant (credit card services).
5. Parties’ Contentions
A. Complainant
The Complainant contends that the disputed domain name is identical or confusingly similar to the Complainant’s registered trademarks; that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the disputed domain name, the Complainant must prove each of the following, namely 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.
A. Identical or Confusingly Similar
The Complainant undoubtedly has rights in the marks AMAZING and AMAZING CASH. These rights are shown from the Complainant’s use of the marks in commerce, and from the registrations for such marks. The disputed domain name is confusingly similar to these marks. The disputed domain name consists of one of the Complainant’s marks (AMAZING) in its entirety at the second-level portion of the disputed domain name, along with the new generic Top-Level Domain (“gTLD”) “.cash”, which does not prevent a finding of confusing similarity between the disputed domain name and the Complainant’s mark. The use of the “.cash” gTLD in the disputed domain name results in the essential re-creation of another of the Complainant’s marks (AMAZING CASH) in its entirety.
B. Rights or Legitimate Interests
The Complainant will be successful under this element of the Policy if it makes a prima facie showing that the Respondent lacks rights or legitimate interests in the disputed domain name, and if that prima facie showing remains unrebutted by the Respondent.
The Complainant asserts that there is no evidence of the Respondent’s 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. Instead, the disputed domain name resolves to a website that is displaying the Complainant’s marks and links to competing services. The Complainant is not aware that the Respondent, as an individual, business, or other organization, has been commonly known by the disputed domain name; the Respondent is not making a legitimate noncommercial or fair use of the disputed domain name; and the Respondent is not a licensee of the Complainant’s trademarks and has not otherwise obtained authorization to use the Complainant’s marks.
These assertions establish the Complainant’s prima facie case. The Respondent has not answered the Complainant’s assertions, and, seeing no basis in the record to overcome the Complainant’s prima facie showing, the Panel finds that the Complainant has satisfied this second Policy element.
C. Registered and Used in Bad Faith
The facts in the record support a finding of bad faith registration and use.
The Panel notes that the disputed domain name consists of one of the Complainant’s marks (AMAZING) in its entirety at the second-level portion of the disputed domain name, along with the new gTLD “.cash”, a word that is related to the Complainant’s services. See, Servicemaster Brands, L.L.C. v. Scott Rosenbaum,
WIPO Case No. D2018-0961 (use of descriptive “.cleaning” gTLD in conjunction with MERRYMAIDS mark as the second level domain supported finding of bad faith).
Further, the appearance of the “.cash” gTLD following the second level domain “amazing” essentially re-creates another of the Complainant’s marks (AMAZING CASH) in its entirety. Given the prior registration of the Complainant’s marks AMAZING and AMAZING CASH, and the evidence that such marks are well-known in the marketplace, it is implausible to believe that the Respondent registered the disputed domain name for any purpose other than to intentionally attempt to attract, for commercial gain, Internet users to the Respondent’s website, by creating a likelihood of confusion with the Complainant’s marks as to the source, sponsorship, affiliation, or endorsement of that website.
Bad faith use is clear from the Respondent’s activities of using the disputed domain name to provide a website with pay-per-click links for competitive services (in this case, for credit cards).
For these reasons, the Panel finds that the Complainant has successfully met this third Policy element.
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 <amazing.cash> be transferred to the Complainant.
Evan D. Brown
Sole Panelist
Date: November 17, 2018
