Hertza L.L.C., dba ZeroBounce v. Host Master / Transure Enterprise Ltd
Claim Number: FA2203001990221
Complainant is Hertza L.L.C., dba ZeroBounce (“Complainant”), represented by Sarah R. Frankfort of Diego Law LLC, Texas, USA. Respondent is Host Master / Transure Enterprise Ltd (“Respondent”), Delaware, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <zerounbounce.com>, registered with Above.com Pty Ltd.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 29, 2022; the Forum received payment on March 29, 2022.
On April 1, 2022, Above.com Pty Ltd. confirmed by e-mail to the Forum that the <zerounbounce.com> domain name is registered with Above.com Pty Ltd. and that Respondent is the current registrant of the name. Above.com Pty Ltd. has verified that Respondent is bound by the Above.com Pty Ltd. 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 April 1, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 25, 2022 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@zerounbounce.com. Also on April 1, 2022, 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 May 2, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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
Complainant contends as follows:
Complainant, Hertza L.L.C., dba ZeroBounce, provides email validation services.
Complainant has rights in the ZEROBOUNCE mark based upon registration with the United States Patent and Trademark Office (“USPTO”).
The <zerounbounce.com> domain name is confusingly similar to Complainant’s mark because Respondent has incorporated the entire mark and added the term “un,” and the “.com” generic top-level domain (“gTLD”).
Respondent does not have rights or legitimate interests in the <zerounbounce.com> domain name because Respondent is not commonly known by the at-issue domain name and is not authorized to use Complainant’s ZEROBOUNCE mark. Additionally, Respondent fails to use the domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use because Respondent engages in typosquatting.
Respondent has registered and uses the <zerounbounce.com> domain name in bad faith because the domain resolves to an inactive page. Additionally, Respondent used a privacy service to register the domain. Finally, Respondent offered the domain for sale in excess of its out-of-pocket costs.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in the ZEROBOUNCE mark.
Respondent has not been authorized to Complainant’s trademark.
Respondent registered the at-issue domain name after Complainant acquired rights in ZEROBOUNCE.
Respondent holds the at-issue domain name to address a parking page and has offered the domain name for sale.
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”).
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s ownership of a USPTO registration for its ZEROBOUNCE trademark demonstrates Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (“Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”).
Respondent’s <zerounbounce.com> domain name contains Complainant’s ZEROBOUNCE trademark with “un” inserted. The adulterated mark is followed by the“.com” top-level to complete the domain name. The differences between Complainant’s trademark and Respondent’s domain name are insufficient to distinguish one from the other for the purposes of the Policy. Therefore, the Panel finds that Respondent’s <zerounbounce.com> domain name is confusingly similar to Complainant’s ZEROBOUNCE trademark under Policy ¶ 4(a)(i). See Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis);see also, Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognizable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”).
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006).
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or legitimate interests in respect of the at-issue domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”).
The WHOIS information for the at-issue domain name ultimately shows “Host Master/Transure Enterprise Ltd.” as the domain name’s registrant and there is no evidence before the Panel that otherwise indicates Respondent is commonly known by the <zerounbounce.com> domain name. Therefore, the Panel finds that Respondent is not commonly known by the at-issue domain name pursuant to Policy ¶ 4(c)(ii). See Instron Corp. v. Kaner, FA 768859 (Forum Sept. 21, 2006) (finding that the respondent was not commonly known by the disputed domain names because the WHOIS information listed “Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't” as the registrant and there was no other evidence in the record to suggest that the respondent was commonly known by the domain names in dispute).
Browsing to <zerounbounce.com> returns a parking webpage displaying no substantive content while offering hyperlinks to third parties. Respondent’s holding of the at-issue domain name in this manner indicates neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Dell Inc. v. link growth / Digital Marketing, FA 1785283 (Forum June 7, 2018) (“Respondent’s domain names currently display template websites lacking any substantive content. The Panel finds that Respondent does not have rights or legitimate interests with respect of the domain name per Policy ¶¶ 4(c)(i) or (iii).”)
Respondent has also attempted to sell <zerounbounce.com> for an amount in excess of its reasonable out-of-pocket costs. Respondent’s endeavor constitutes neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Collective Brands Cooperatief U.A. v. ecole c/o Eric Cole, FA1006001328023 (Forum July 8, 2010) (“The Panel finds that general offers to sell the disputed domain name do not establish a bona fide offering of goods or services or a legitimate noncommercial or fair use in keeping with Policy ¶¶ 4(c)(i) or 4(c)(iii).”).
Given the forgoing, Complainant conclusively demonstrates Respondent’s lack of rights and lack of interests in the <zerounbounce.com> domain name.
The at-issue domain name was registered and is being used in bad faith. As discussed below without limitation, there is evidence from which the Panel may conclude that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
Respondent fails to make active use of the domain name as the domain name features no substantive content and addresses a parking page replete with hyperlinks to third-parties. Respondent’s holding of <zerounbounce.com> shows Respondent’s bad faith registration and use per Policy ¶ 4(a)(iii) and 4(b)(iv). See Regions Bank v. Darla atkins, FA 1786409 (Forum June 20, 2018) (“Respondent registered and is using the domain name in bad faith under Policy ¶ 4(a)(iii) because Respondent uses the domain name to host an inactive website.”); see also Vivint, Inc. v. Online Management, FA1403001549084 (Forum Apr. 23, 2014) (holding that the respondent had registered and used the disputed domain name in bad faith according to Policy ¶ 4(b)(iv) where the disputed domain name resolved to a parking page that featured no content besides sponsored advertisements and links).
Moreover, Respondent offered to sell <zerounbounce.com> for an amount reasonably in excess of Respondent’s out of pocket costs relating to such domain name. Respondent’s offer to sell the confusingly similar domain name indicates Respondent’s bad faith under Policy ¶ 4(b)(i). See loanDepot.com, LLC v. Expired domain caught by auction winner.***Maybe for sale on Dynadot Marketplace*** c/o Dynadot, FA 1786281 (Forum June 8, 2018) (“Complainant shows that Respondent offers the disputed domain name for sale for $950, no doubt above its out-of-pocket costs. The Panel finds that this constitutes bad faith under Policy ¶ 4(b)(i).”).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <zerounbounce.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: May 3, 2022
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