Zynga Inc. v. Ryan G Foo / PPA Media Services
Claim Number: FA1512001650448
Complainant is Zynga Inc. (“Complainant”), represented by Dennis L. Wilson of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is Ryan G Foo / PPA Media Services (“Respondent”), Chile.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wwwzynga.com>, registered with TLD Registrar Solutions 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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 1, 2015; the Forum received payment on December 1, 2015.
On December 4, 2015, TLD Registrar Solutions Ltd. confirmed by e-mail to the Forum that the <wwwzynga.com> domain name is registered with TLD Registrar Solutions Ltd. and that Respondent is the current registrant of the name. TLD Registrar Solutions Ltd. has verified that Respondent is bound by the TLD Registrar Solutions 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 December 7, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 28, 2015 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@wwwzynga.com. Also on December 7, 2015, 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 December 31, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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 uses the ZYNGA mark in connection with the provision of social game services. Complainant has registered the ZYNGA mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,685,749, first use June 2007, registered Sep. 22, 2009), establishing rights in the mark. Complainant has also demonstrated common law rights through its use of the ZYNGA mark in commerce as early as January 2008. Further, Respondent’s <wwwzynga.com> domain name is confusingly similar to the ZYNGA mark as it incorporates the mark fully and merely appends the prefix “www” and the generic top-level domain (“gTLD”) “.com.”
Respondent has no rights or legitimate interests in respect of the <wwwzynga.com> domain name. Respondent is not commonly known by <wwwzynga.com> nor has Respondent been given authorization to register the ZYNGA mark. Further, Respondent’s <wwwzynga.com> domain name redirects internet users to pages associated with malware and/or phishing schemes; therefore, there has been no bona fide offering of goods or services or any legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii), respectively.
Respondent has registered and used the disputed domain name in bad faith. Respondent has made a general offer to sell the disputed domain, which indicates bad faith under Policy ¶ 4(b)(i). Respondent is a serial cyber squatter, and the instant case is but another example of a pattern of bad faith domain name registrations per Policy ¶ 4(b)(ii). Respondent has attempted to attract, for commercial gain, Internet users to its website to distribute malware and phish for Internet user personal information, which shows bad faith under Policy ¶ 4(b)(iv). Respondent has engaged in typosquatting. Further, since Respondent registered the disputed domain the same day Complainant announced it received $29 million from investors (and receiving media attention), Respondent’s opportunistic bad faith is shown, as is its actual knowledge in the ZYNGA mark and Complainant’s rights in the mark under Policy ¶ 4(a)(iii).
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Zynga Inc., is one of the world’s leading providers of social game services providing, inter alia, online and mobile app games. Complainant has registered the ZYNGA mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,685,749, first use June 2007, registered Sep. 22, 2009), establishing rights in the mark.
Complainant has also shown common law rights through its use of the ZYNGA mark in commerce as early as January 2008. By virtue of the extensive online sales and advertising under the mark ZYNGA, the ZYNGA mark has become well-known within social gaming circles as a source identifier for Zynga’s games. Zynga’s was listed on the NASDAQ stock exchange (ZNGA) in 2011.
Respondent’s <wwwzynga.com> domain name is confusingly similar to the ZYNGA mark.
Respondent, Ryan G Foo / PPA Media Services, registered the <wwwzynga.com> domain name on July 23, 2008. Respondent is using the domain name to perpetrate a common phishing scheme that is designed to defraud unsuspecting users seeking goods and services offered under Complainant’s mark. Specifically, users who inadvertently mistype the Complainant’s website address are redirected to a webpage which immediately flashes a pop-up window claiming that the user is infected with a malicious virus and prompting the users to contact a fraudulent tech support number. The domain name also resolves to various websites that distribute scareware, a type of malware that generates pop-ups that resemble OS system messages designed to trick victims into purchasing and downloading useless and potentially dangerous software. Respondent has been the responding party in over 150 UDRP proceedings.
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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Complainant has rights in the ZYNGA mark under Policy ¶ 4(a)(i) through registration with the USPTO (e.g., Reg. No. 3,685,749, first use June 2007, registered Sep. 22, 2009) rights in the mark. See Dell Inc. v. Rino Manangkalangi, FA 1626784 (Nat. Arb. Forum Aug. 5, 2015) (holding that Complainant has rights in the ALIENWARE trademark and service mark for purposes of Policy ¶ 4(a)(i) by reason of its registration of the mark with the USPTO.).
Complainant also has shown common law rights in the ZYNGA mark which date back to January 2008, through use in commerce. Relevant evidence of common law rights is produced through a showing of secondary meaning. See, Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA 1625750 (Nat. Arb. Forum July 17, 2015) (secondary meaning shown by evidence of length of use in the mark, holding an identical domain name, media recognition, and promotional material and advertising). Here, Complainant has provided its recent Form 10-K, media recognition dating back to January 15, 2008, and WHOIS information for its home website located at <www.zynga.com> (created November 2, 2007). Previous UDRP Panels have recognized Complainant’s common law rights in the ZYNGA mark which date back to January 2008. See, e.g., Zynga Game Network Inc. v. George Haritos and Just Add Chips, D2009-1478 (WIPO Dec. 23, 2009) (noting that “ZYNGA is a highly distinctive mark” and that Complainant “mounted the degree of promotion and garnered the amount of revenue required to serve as substantial evidence of its common law rights in its ZYNGA mark by January 2008”).
Respondent’s <wwwzynga.com> domain name is confusingly similar to the ZYNGA mark under Policy ¶ 4(a)(i) as it incorporates the mark fully and merely appends the prefix “www” and the gTLD “.com.”
Respondent has no rights or legitimate interests in respect of the <wwwzynga.com> domain name. Respondent is not commonly known by <wwwzynga.com> Complainant has not authorized Respondent to register the ZYNGA mark. The WHOIS information lists “Ryan G Foo / PPA Media Services” as registrant of the disputed domain name. See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it is commonly known by the domain name).
Respondent’s <wwwzynga.com> domain name redirects Internet users to pages associated with malware and phishing schemes, Respondent has failed to make a bona fide offering of goods or services or any legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii), respectively. The resolving website for the <wwwzynga.com> domain name redirects Internet users to websites associated with malware and scareware. Therefore, Respondent does not have rights or legitimate interests in the disputed domain name. See Ceridian Corp. v. Versata Software, Inc., FA 1259927 (Nat. Arb. Forum June 23, 2009) (finding that a respondent’s use of a disputed domain name to direct Internet users to a website which attempts to download computer viruses “failed to create any semblance of a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)”); see also Blackstone TM L.L.C. v. Mita Irelant Ltd., FA 1314998 (Nat. Arb. Forum Apr. 30, 2010) (“The Panel finds that Respondent’s attempt to “phish” for users’ personal information is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”).
This is not the first time Respondent has demonstrated the same malicious activity. In John Stamos v. Ryan G Foo / PPA Media Services / Domain Admin / Whois Privacy Corp, FA 1618847 (Forum June 16, 2015), the Panel found that Respondent used the disputed domain name <johnstamos.com> “to redirect Internet users to a web page that features a fake ‘virus warning’ and a series of pop-up windows that promote an illegal phishing scheme” and, as a result, held that Respondent had no rights or legitimate interest in the disputed domain name. See also Google Inc. v. Ryan G Foo / PPA Media Services, FA 1625734 (Forum Aug. 10, 2015) (“Past panels have found that a respondent’s use of a disputed domain name to perpetrate a phishing scheme evidences that a respondent lacks rights or legitimate interests in the disputed domain name.”).
Respondent registered and uses the <wwwzynga.com> domain name in bad faith. Respondent has made a general offer to sell the disputed domain, which shows bad faith under Policy ¶ 4(b)(i). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's general offer of the disputed domain name registration for sale establishes that the domain name was registered in bad faith under Policy ¶ 4(b)(i).”).
Respondent is a serial cyber squatter. This case is another example of a pattern of bad faith domain name registrations under Policy ¶ 4(b)(ii). Bad faith findings against a respondent in prior UDRP cases indicate a pattern of bad faith registration under Policy ¶ 4(b)(ii). See Liberty Mut. Ins. Co. v. Bin g Glu, FA 1036129 (Nat. Arb. Forum Sept. 2, 2007) (holding prior UDRP proceedings were sufficient evidence of a pattern of bad faith registrations). Numerous times, Respondent has been found to have registered and used disputed domain names in bad faith. See e.g., Community Bible Study v. Ryan G Foo, PPA Media Services/Whois Privacy Corp., D2015-1706 (WIPO Nov. 24, 2015) (“The Respondent has also clearly engaged in a pattern of bad faith as he: (i) has registered many domain names which incorporate third party marks; and (ii) has been the subject of over 150 UDRP proceedings, the majority of which have resulted in decisions… in favor of the complainant . . . . [which] demonstrate that the Respondent is a regular cyber squatter.”).
Respondent has attempted to attract, for commercial gain, Internet users to its website to distribute malware and phish for Internet user personal information, which is bad faith under Policy ¶ 4(b)(iv). See, e.g., Google, Inc. v. Petrovich, FA 1339345 (Nat. Arb. Forum September 23, 2010) (finding that disputed domain names which distribute malware to Internet users’ computers demonstrate Respondent’s bad faith under Policy ¶ 4(b)(iv)). A prior UDRP Panel has found Respondent to have utilized malware in a similar fashion as alleged in the instant case. See John Stamos v. Ryan G Foo / PPA Media Services / Domain Admin /Whois Privacy Corp, FA 1618847 (Nat. Arb. Forum June 16, 2015) (finding Respondent used the disputed domain name <johnstamos.com> “to redirect Internet users to a web page that features a fake ‘virus warning’ and a series of pop-up windows that promote an illegal phishing scheme” and, as a result, held that Respondent had no rights or legitimate interest in the disputed domain name, and had acted in bad faith).
Respondent had actual knowledge of Complainant’s ZYNGA mark and engaged in opportunistic bad faith under Policy ¶ 4(a)(iii). Respondent registered the <wwwzynga.com> domain name the same day Complainant announced it received $29 million in funding from outside investors and acquired the then largest virtual world game on social networks. See Thermo Electron Corp. v. Xu, FA 713851 (Nat. Arb. Forum July 12, 2006) (“If there had been any doubt as to bad faith, the fact that registration was on the same day the news leaked about the merger, which was put in evidence, is a compelling indication of bad faith that [the] respondent has to refute and which he has failed to do.”); see also Radio & Records, Inc. v. Nat'l Voiceover, FA 665235 (Nat. Arb. Forum May 9, 2006) (finding that there are reasonable grounds to infer that Respondent had actual notice of Complainant's rights in the mark, and therefore registered the disputed domain name in bad faith, since Complainant's magazine covers an industry towards which Respondent's services are marketed).
Respondent has also engaged in typosquatting which is bad faith. Respondent’s registration and use of the <wwwzynga.com> domain name, which incorporates the entirety of Complainant’s ZYNGA mark and the generic prefix “www” with no period between the prefix and the mark, is a classic example of typosquatting. See Publix Asset Management Company v. DigiMedia Holding Domain Administrator / Whois Privacy Services Pty Ltd, WIPO D2015-1299 (Oct. 1, 2015) (The addition of the “www” prefix was likely intended to draw in Internet users who mistyped the Complainant’s website address by omitting the period, or full stop, between “www” and “publix.com”).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wwwzynga.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: January 14, 2016
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