Funding Circle Limited v. Alex Baker / FC Renewals
Claim Number: FA1907001855209
Complainant is Funding Circle Limited (“Complainant”), represented by David S. Reidy, California, USA. Respondent is Alex Baker / FC Renewals (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <fundingcircle-renewals.com>, registered with Namecheap, Inc..
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 31, 2019; the Forum received payment on July 31, 2019.
On August 1, 2019, Namecheap, Inc. confirmed by e-mail to the Forum that the <fundingcircle-renewals.com> domain name is registered with Namecheap, Inc. and that Respondent is the current registrant of the name. Namecheap, Inc. has verified that Respondent is bound by the Namecheap, 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 August 6, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 26, 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@fundingcircle-renewals.com. Also on August 6, 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 August 29, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it provides a lending marketplace that allows investors to lend money to small and medium sized businesses. Complainant raises funds from more than 92,000 investors, including some of the largest and most sophisticated investors around the world. Complainant takes those funds and invests them in established, creditworthy businesses in different sectors and regions. Such services offer Complainant’s investors diverse investment opportunities and attractive returns and also offer small businesses fast, easy access to financing through business loans to grow their business. Complainant is one of the best-capitalized lending platforms in the world. Complainant has originated more than $10.2 billion in loans to more than 72,000 businesses across the globe. Complainant is widely recognized for its services, as evidenced by it being was named the “Best Small Business Loan for low APR” by U.S. News & World Report in April 2019. Complainant offers its high quality financial services under the FUNDING CIRCLE brand. Complainant has rights in the FUNDING CIRCLE mark based upon registration in the United States on July 24, 2018 and in the UK in 2017. The mark is also registered elsewhere around the world.
Complainant alleges that the disputed domain name is confusingly similar to its mark as it incorporates the mark in its entirely and merely adds the generic term “renewals” and the “.com” generic top-level domain (“gTLD”).
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not permitted or licensed to use Complainant’s FUNDING CIRCLE mark and is not commonly known by the disputed domain name. Respondent is not using the disputed domain name to make a bona fide offering of goods or services or for a legitimate non-commercial or fair use. Rather, Respondent uses the disputed domain name to divert Internet users to Respondent’s website where Respondent hosts pay-per-click advertisements. In addition, Respondent uses the disputed domain name to conduct a fraudulent phishing scheme.
Further, says Complainant, Respondent has registered and uses the disputed domain name in bad faith. Respondent is attempting to intentionally attempt to attract, for commercial gain, Internet users to Respondent’s website by creating a likelihood of confusion with the FUNDING CIRCLE mark as to source, sponsorship, affiliation, or endorsement of Respondent’s website. Additionally, Respondent uses the disputed domain name to conduct a fraudulent phishing scheme.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark FUNDING CIRCLE, with rights dating back to 2017.
The disputed domain name was registered on January 14, 2019.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name resolves to a website that displays click-through advertising for products and services that are not related to Complainant.
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 disputed domain name incorporates Complainant’s mark in its entirety and merely adds the generic term “renewals”, a hyphen, and a gTLD to the mark. Additions of hyphens, generic and/or descriptive terms and a gTLD to a complainant’s mark does not negate any confusing similarity between a disputed domain name and mark under Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exist where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy.); see also UBS AG v. Jouet Daniels, FA 1783500 (Forum May 30, 2018) (“Addition of hyphens does not distinguish a domain name from a mark per Policy ¶ 4(a)(i).”). Thus, the Panel finds that the <fundingcircle-renewals.com> domain name is confusingly similar to Complainant’s FUNDING CIRCLE mark per Policy ¶ 4(a)(i).
Respondent is not licensed or authorized to use the FUNDING CIRCLE mark. Respondent is not commonly known by the disputed domain name: where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 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.). Here, the WHOIS information of record identifies Respondent as “Alex Baker / FC Renewal,” and there is no other evidence to suggest Respondent is commonly known by the disputed domain name. The Panel therefore finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Respondent uses the disputed domain name to link to a third party website that display advertisements for unrelated goods and services. Advertisements that divert traffic to third-party websites do not constitute a bona fide offering of goods or services, or a noncommercial or fair use per Policies ¶¶ 4(c)(i) & (iii). See TGI Friday’s of Minnesota, Inc. v. Tulip Company / Tulip Trading Company, FA 1691369 (Forum Oct. 10, 2016) (”Respondent uses the domain for a parking page displaying various links that consumers are likely to associate with Complainant, but that simply redirect to additional advertisements and links that divert traffic to third-party websites not affiliated with Complainant… The Panel here finds that Respondent is not using the domain name in connection with a bona fide offering of goods or services.”); see also Materia, Inc. v. Michele Dinoia, FA1507001627209 (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.”). The Panel finds that Respondent is not using the disputed domain name to make a bona fide offering of goods or services or for a legitimate non-commercial or fair use under Policy ¶¶ 4(c)(i) or (iii). Further, the Panel finds that Respondent does not have any rights or legitimate interests in the disputed domain name.
In addition, Complainant alleges that Respondent attempts to impersonate Complainant by using the disputed domain name in e-mails as part of a fraudulent phishing scheme. However, Complainant does not provide any evidence of e-mails that use the disputed domain name. Therefore, the Panel will not consider the allegation any further.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent uses the disputed domain name to attempt to attract, for commercial gain, users to its website which features click-through advertisements that redirect users to third-party websites. Using a confusingly similar domain name to commercially benefit via pay-per-click links can evince bad faith registration and use per Policy ¶ 4(b)(iv). Google Inc. v. James Lucas / FireStudio / Jameschee / FIRESTUDIO / SEONG YONG, FA1502001605757 (Forum Apr. 7, 2015) (“This Panel agrees that Respondent’s inclusion of advertisements to likely reap click-through fees is an example of bad faith pursuant Policy ¶ 4(b)(iv).”); see also Tumblr, Inc. v. Ailing Liu, FA1402001543807 (Forum Mar. 24, 2014) (“Bad faith use and registration exists under Policy ¶ 4(b)(iv) where a respondent uses a confusingly similar domain name to resolve to a website featuring links and advertisements unrelated to complainant’s business and respondent is likely collecting fees.”). Therefore, the Panel finds that Respondent registered and uses the disputed domain name in bad faith pursuant Policy ¶ 4(b)(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 <fundingcircle-renewals.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: August 29, 2019
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