The Complainant is Zoyo Capital Limited of London, United Kingdom of Great Britain and Northern Ireland (“United Kingdom”), internally represented.
The Respondent is A. Zoyo of Tallahassee, Florida, United States of America.
The disputed domain name <zoyo.com> is registered with GoDaddy.com, LLC (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 2, 2018. On October 2, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 2, 2018, 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 October 5, 2018. In accordance with the Rules, paragraph 5, the due date for Response was October 25, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 26, 2018.
The Center appointed Desmond J. Ryan as the sole panelist in this matter on October 30, 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.
The disputed domain name was registered on April 4, 2002, it does not resolve to an active webpage.
The Complainant is the owner of United Kingdom Trade Mark Registration No. 00003291677 ZOYO registered May 25, 2018 with an effective date of February 21, 2018, in respect of services in International Classes 36 and 42.
The Complaint provides no other information in relation to the Complainant.
Pursuant to the power given by paragraph 10 of the Rules, (see also WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) section 4.8) the Panel conducted limited Internet searches using the search terms “Zoyo” and “Zoyo Capital Limited”. The first search revealed some eight pages of results, none of which appeared to relate to the Complainant. The second search disclosed official information indicating that the Complainant is a registered private company incorporated in the United Kingdom on March 19, 2018 and that it appears to be a member of a group of private registered companies comprising also “Zoyo Technology Limited”, “Zoyo Securities Limited” and “Zoyo Research Limited” incorporated respectively on March 20, 2018, May 10, 2018 and June 6, 2018.
No information is available in relation to the Respondent save that which is contained in the WhoIs for the disputed domain name.
Sometime prior to August 13, 2018, the Complainant approached the Respondent through the Registrar regarding purchase of the disputed domain name. On August 13, 2018, the Registrar reported to the Complainant the Respondent’s reply, reading as follows:
“I bought it for $10,000 a few years ago. I will sell it for $10,000 take it or leave it. No negotiation. Please let me know how you would like to proceed”.
The Complainant’s contentions may be summarised as follows:
(i) The disputed domain name is identical to the Complainant’s trade mark in which it has rights by virtue of its United Kingdom registration.
(ii) The Complainant is currently in the process of securing international rights in the ZOYO trade mark as part of the expansion and development of its business and “wishes to secure this domain name for business use”.
(iii) The Complainant has used reasonable efforts and resources to identify if the Respondent has any rights or legitimate interests in the disputed domain name and to identify if there is any evidence that the Respondent has used or made preparations to use the disputed domain name in connection with a bona fide offering of goods or services or whether the Respondent has been commonly known by the disputed domain name. The Complaint, however, provides no evidence of those efforts or resources, nor does it indicate what they were.
(iv) Offering of the disputed domain name at an inflated price suggests the Respondent’s knowledge of the business value of the disputed domain name and that the Respondent intended to make commercial gain from it.
(v) The Complainant’s assertion that the Respondent’s claim that the disputed domain name was bought “a few years ago” is false and in bad faith as the WhoIs shows that it was acquired by the Respondent on April 18, 2018.
The Respondent did not reply to the Complainant’s contentions.
Notwithstanding that the Respondent did not attempt to rebut the Complainant’s contentions, the onus remains on the Complainant to establish at least a prima facie case under the three elements of paragraph 4(a) of the Policy.
The Complainant has provided evidence of its registration of the trade mark ZOYO and its rights thereto.
The disputed domain name, apart from the top level denominator “.com”, is identical to the Complainant’s ZOYO trade mark. It is well established that the Top-Level Domain is to be disregarded for the purposes of comparison under paragraph 4(a)(i) of the Policy.
The Panel therefore finds that the disputed domain name is identical to a trade mark in which the Complainant has rights.
On the face of the record the Respondent’s family name is Zoyo. If this is correct, then prima facie, the Respondent may have a legitimate interest in the disputed domain name. The Complainant has provided no evidence suggesting that the Respondent’s name is fictitious. In these circumstances whereby the Complainant is silent as to this issue and absent any indication in the record that the name is false, notwithstanding that the Respondent has failed to rebut the Complainant’s contention, the Panel has difficulty in concluding that the Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. However, in view of the Panel’s finding under paragraph C below, it is unnecessary for the Panel to finally rule on this aspect of the matter.
The disputed domain name was registered in April, 2002. The Complainant was not incorporated until March, 2018 and its trade mark rights date from February, 2018. Accordingly, there appears no basis upon which the Panel could conclude that the original registration was made in bad faith or with the intention of targeting the Complainant. The Complainant, however, contends that the Respondent acquired the disputed domain name only on April 2, 2018 and cites the WhoIs for the disputed domain name for this proposition; however, the Panel is unable to find anything in the WhoIs to establish the Complainant’s contention. The only indication is that the WhoIs states that it was updated on April 2, 2018, but without further evidence, that does not establish that the updating was to record the acquisition of the disputed domain name by the Respondent on that date. On the face of it therefore the Complainant has failed to establish that the Respondent’s statement in response to the Complainant’s enquiry that it acquired the disputed domain name “some years ago” is false. On the basis of the evidence presently available therefore, the Panel is unable to find that the disputed domain name has been registered in an attempt to target the Complainant in bad faith. The Panel further notes that the Complainant states that it requires the disputed domain name for use as part of the expansion and development of its business. This would seem to indicate that the Complaint has been filed as simply a part of its business expansion plan and perhaps indicates that the Complainant does not fully understand the nature and purpose of the Policy.
Despite what has been said above, if the facts are that the Respondent did not acquire the disputed domain name until April, 2018, at a time when there was considerable activity and perhaps publicity in relation to the establishment of the Complainant’s group, that might paint a different picture. Accordingly, on the basis of the evidence before the Panel on the present record, the Panel proposes to deny the Complaint but to do so without prejudice to the filing of a new Complaint should evidence become available to support the Complainant’s contentions in relation to the Respondent’s identity and acquisition of the disputed domain name.
For the foregoing reasons, the Complaint is denied without prejudice to the Complainant’s right to make a further Complaint in the event that further evidence becomes available in relation to the Respondent’s identity and the time and circumstances surrounding the Respondent’s acquisition of the disputed domain name.
Desmond J. Ryan AM
Date: November 13, 2018
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