Zynga Inc. v. TULAY Coban / ABSSOFT
Claim Number: FA1903001835970
Complainant is Zynga Inc. (“Complainant”), represented by Peter Kidd of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is TULAY Coban / ABSSOFT (“Respondent”), Turkey.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <farmville2giftgarden.com> (‘the Domain Name’), registered with OnlineNIC, Inc..
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 26, 2019; the Forum received payment on March 26, 2019.
On March 28, 2019, OnlineNIC, Inc. confirmed by e-mail to the Forum that the <farmville2giftgarden.com> domain name is registered with OnlineNIC, Inc. and that Respondent is the current registrant of the name. OnlineNIC, Inc. has verified that Respondent is bound by the OnlineNIC, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On March 28, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 17, 2019 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@farmville2giftgarden.com. Also on March 28, 2019, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On April 19, 2019 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
The Complainant’s contentions can be summarized as follows:
The Complainant is the owner of, inter alia, the mark FARMVILLE 2 registered since 2013 in the USA for computer games and services. Its FARMVILLE logo has also been registered for computer related goods and services in the USA since 2010. FARMVILLE is registered as a word mark, inter alia, in Turkey where the Respondent is based where it has been registered since 2011. FARMVILLE is a popular computer game where players can, inter alia, socialize by sending gifts to other players. In January 2017 the Complainant offered an online ring toss game called ‘Garden of Gifts’ for the reward of players.
The Domain Name registered in May 2017 is confusingly similar to the Complainant’s FARMVILLE 2 mark adding only the generic terms ‘gift’ and ‘garden’ and the gTLD “.com” which does not prevent such confusing similarity.
The Respondent does not have any rights or legitimate interests in the Domain Name, is not commonly known by the Domain Name and is not authorized by the Complainant. The web site attached to the Domain Name purports to offer items for use in the Complainant’s FARMVILLE game using the Complainant’s logo and graphics, but when clicked upon they lead to third party advertisements which is not a bona fide offering of goods or services or a legitimate noncommercial or fair use.
It is bad faith registration and use under Policy 4(b)(iv) diverting consumers on the Internet for commercial gain. The use of the Complainant’s logo and graphics on the Respondent’s site shows the Respondent is aware of the Complainant and its business.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of, inter alia, the mark FARMVILLE 2 registered since 2013 in the USA for computer games and services. Its FARMVILLE logo has also been registered for computer related goods and services in the USA since 2010. FARMVILLE is registered as a word mark, inter alia, in Turkey (where the Respondent is based) where it has been registered since 2011. FARMVILLE is a popular computer game where players can, inter alia, socialize by sending gifts to other players. In January 2017 the Complainant offered an online ring toss game called ‘Garden of Gifts’ for the reward of players.
The Domain Name registered in May 2017 purports to offer gifts for use in the Complainant’s game, but when clicked upon the links go to third party advertisements.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Identical or Confusingly Similar
The Domain Name consists of the Complainant’s FARMVILLE 2 mark (registered in the USA for computer games and services with first use recorded as 2012), the generic words ‘gift’ and ‘garden’ and the gTLD “.com.” Previous panels have found confusing similarity when a respondent merely adds generic terms to a Complainant's mark. See PG&E Corp. v Anderson, D2000-1264 (WIPO Nov. 22, 2000) (finding that respondent does not by adding common descriptive or generic terms create new or different marks nor does it alter the underlying mark held by the Complainant). The Panel agrees that the addition of the generic words ‘gift’ and ‘garden’ does not distinguish the Domain Name from the Complainant's trade mark pursuant to the Policy.
The TLD “.com” does not serve to distinguish the Domain Name from the FARMVILLE 2 mark, which is the distinctive component of the Domain Name. See Red Hat Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the TLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purposes of the Policy with a mark in which the Complainant has rights.
As such, the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorized the use of its mark. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sep. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
The web site to which the Domain Name redirects offers links to third party services not associated with the Complainant. It does not make it clear that there is no commercial connection with the Complainant and, in fact, uses the Complainant’s logo and graphics to promise gifts for use in the Complainant’s game. The Panel finds this use is confusing. As such, it cannot amount to the bona fide offering of goods and services. See Vance Int’l Inc. v. Abend, FA 0970871 (Forum June 8, 2007) (Concluding that the operation of a pay per click web site at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially benefitting from the click through fees).
As such, the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The Respondent has not answered this Complaint or explained why it should be allowed to register a domain name containing the Complainant’s mark.
In the opinion of the panelist the use made of the Domain Name in relation to the sites attached to the Domain Name is confusing and disruptive in that visitors to the site might reasonably believe they are connected to or approved by the Complainant as they offer links to third party services under the Complainant’s mark and using its logo and graphics. Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its websites by creating a likelihood of confusion with the Complainant's trademarks as to the source, sponsorship, affiliation or endorsement of the web sites likely to disrupt the business of the Complainant. See Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Forum Mar. 21, 2006)
As such, the Panel holds that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under Policy 4(b)(iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <farmville2giftgarden.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: April 20, 2019
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