Zumasys, Inc. v. Steven Erickson / zumays
Claim Number: FA1709001749926
Complainant is Zumasys, Inc. (“Complainant”), represented by Shawn Peddycord of Peddycord Law, California, USA. Respondent is Steven Erickson / zumays (“Respondent”), Michigan, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <zumasys.org>, registered with 1&1 Internet SE.
The undersigned certifies that he or she has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
David A. Einhorn appointed as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 20, 2017; the Forum received payment on September 20, 2017.
On September 21, 2017, 1&1 Internet SE confirmed by e-mail to the Forum that the <zumasys.org> domain name is registered with 1&1 Internet SE and that Respondent is the current registrant of the name. 1&1 Internet SE has verified that Respondent is bound by the 1&1 Internet SE 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 September 25, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 16, 2017 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@zumasys.org. Also on September 25, 2017, 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 October 18, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David A. Einhorn 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’s business offers consulting and diagnostic services for hardware and software computer systems. Complainant registered its ZUMASYS mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,237,355, registered May 1, 2007). Respondent’s <zumasys.org> is identical to Complainant’s ZUMASYS mark because it takes the entire mark and merely attaches the “.org” generic top-level-domain (“gTLD”).
Respondent has no rights or legitimate interests in <zumasys.org>. Respondent is not commonly known by <zumasys.org>, but rather WHOIS data identifies the registrant as “Steven Erickson.” Respondent has not made a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, Respondent’s <zumasys.org> resolves into a parked directory of unrelated, third-party links.
Respondent registered and used the domain <zumasys.org> in bad faith. Respondent attempted to create confusion as to source, sponsorship, affiliation, or endorsement by sending emails to various people, passing off as an employee of Complainant. Respondent used Complainant’s stylized ZUMASYS mark on letterhead to create further confusion. Respondent also conducted a phishing scheme to collect personal information through emails.
B. Respondent
Respondent did not submit a response. The Panel notes that Respondent registered <zumasys.org> on July 27, 2017.
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 (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 claims to have registered ZUMASYS with the USPTO. (e.g., Reg. No. 3,237,355, registered May 1, 2007). The general rule among panels is USPTO registrations are sufficient to show rights in a mark. See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (stating, “Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”). Therefore, the Panel finds that Complainant has rights in the ZUMASYS mark pursuant to Policy ¶ 4(a)(i).
Next, Complainant contends that Respondent’s <zumasys.org> is identical to the ZUMASYS mark. Complainant argues Respondent’s use of the entire mark and attachment of a gTLD is insufficient to differentiate the mark from the <zumasys.org>. Generally, adding only a gTLD to the mark fails to distinguish the mark and disputed domain name. See Marquette Golf Club v. Al Perkins, FA 1738263 (Forum July 27, 2017) (“When a respondent’s domain name incorporates a mark in its entirety and merely adds a generic top-level domain (gTLD), “.com”, then the Panel may find that the disputed domain name is identical to Complainant’s mark.”). Here, Respondent took the ZUMASYS mark and simply attached the “.org” gTLD.
Therefore, the Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Complainant asserts that Respondent has no rights or legitimate interests in <zumasys.org> because Respondent is not commonly known by <zumasys.org>. Where Respondent does not submit a response, WHOIS data may determine whether Respondent has a legitimate right or interest in the disputed domain name. See Chevron Intellectual Property LLC v. Fred Wallace, FA 1626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). In this case, WHOIS data identifies the registrant of <zumasys.org> as “Steven Erickson.” There is no other evidence to suggest Respondent is known by some other name. Therefore, the Panel finds that Complainant has satisfied Policy ¶ 4(c)(ii).
Next, Complainant asserts that Respondent has not made a bona fide offering of goods or services or a legitimate noncommercial or fair use. Complainant argues that Respondent’s <zumasys.org> resolves into a parked page of third-party links. Generally, parked pages containing links to unrelated, third-parties fail to show rights or legitimate interests in a disputed domain name. See Materia, Inc. v. Michele Dinoia, FA 1627209 (Forum Aug. 20, 2015) (“The Panel finds that Respondent is using a confusingly similar domain name to redirect users to a webpage with unrelated hyperlinks, that Respondent has no other rights to the domain name, and finds that Respondent is not making a bona fide offering or a legitimate noncommercial or fair use.”). Here, Respondent’s <zumasys.org> contains links to various websites, some of which are unrelated to Complainant’s hardware and software business and several that are in German. There is no other evidence to suggest Respondent made a bona fide offering of goods or services or a legitimate noncommercial or fair use. Therefore, the Panel finds that Complainant has satisfied Policy ¶¶ 4(c)(i) and (iii).
Thus, Complainant has also satisfied Policy ¶ 4(a)(ii).
Complainant asserts Respondent’s <zumasys.org> attempts to confuse users as to source, sponsorship, affiliation, or endorsement by sending emails to pass off as a job recruiter of Complainant. Complainant argues that the use of email to make fake offers of employment and obtain personal information constitutes bad faith. Panels have found that the use of emails to obtain personal information through a phishing scheme constitutes bad faith. See Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use); see also Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA 1625750 (Forum July 17, 2015) (“Respondent uses the <klabzuba-oilgas.com> domain to engage in phishing, which means Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).”). Here, Respondent sent emails to various third-parties, purporting to offer “Accounts Receivable” positions at ”Zumasys Steel Co. Ltd.” and purporting to offer prospective employees $60,000 a year plus a 5% commission for only 3-5 hours of work a week. Complainant conducted Google searches and found that “Zumasys Steel Co. Ltd.” may be associated with ransomware or other form of malware. All of this evidence suggests that Respondent’s <zumasys.org> attempts to obtain personal information for nefarious purposes. Therefore, the Panel finds that Complainant has satisfied Policy ¶ 4(b)(iv).
Therefore, Complainant has also satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <zumasys.org> domain name be TRANSFERRED from Respondent to Complainant.
David A. Einhorn, Panelist
Dated: November 1, 2017
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