Funding Circle Limited v. Brian Shaw / FC
Claim Number: FA1908001855990
Complainant is Funding Circle Limited (“Complainant”), represented by David S. Reidy, California, USA. Respondent is Brian Shaw / FC (“Respondent”), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <fundingcircle.cc>, 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 6, 2019; the Forum received payment on August 6, 2019.
On August 6, 2019, NameCheap, Inc. confirmed by e-mail to the Forum that the <fundingcircle.cc> 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 8, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 28, 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.cc. Also on August 8, 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 September 3, 2019, 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 provides a lending marketplace that allows investors to lend money to small and medium sized businesses.
Complainant has rights in the FUNDING CIRCLE mark through its registration of the mark with the United States Patent and Trademark Office and otherwise.
Respondent’s <fundingcircle.cc> domain name is identical or confusingly similar to Complainant’s mark as Respondent merely removes the spaces separating the terms of the FUNDING CIRCLE mark and adds the “.cc” country code top-level domain (“ccTLD”).
Respondents has no rights or legitimate interests in the <fundingcircle.cc> domain name as Respondent is not commonly known by the at-issue domain name nor has Respondent been licensed, authorized, or otherwise permitted by Complainant to use Complainant’s mark. Furthermore, Respondent’s use is not a bona fide offering of goods or services, nor a legitimate noncommercial or fair use, as Respondent is using the disputed domain name to offer pay-per-click hyperlinks including some that reference competing entities. Respondent also uses the disputed domain name to conduct a fraudulent, email phishing scheme.
Respondent registered and used the <fundingcircle.cc> domain name in bad faith. Respondent attempts to disrupt Complainant’s business and attract, for commercial gain, Internet users by featuring competing hyperlinks and conducting an email phishing emails.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the FUNDING CIRCLE trademark through its registration of such mark with the USPTO as well as through its other registrations of such mark worldwide.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in the FUNDING CIRCLE trademark.
Respondent’s domain name addresses a website that features pay-per-click links some of which are to Complainant’s competition; Respondent also uses the at-issue domain name to conduct a fraudulent, email phishing scheme.
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 or identical to a trademark in which Complainant has rights.
Complainant shows it has a USPTO registration as well as additional national registrations worldwide for its FUNDING CIRCLE trademark. Such registrations are each persuasive evidence of Complainant’s rights in the FUNDING CIRCLE mark pursuant to Policy ¶ 4(a)(i). See Microsoft Corp. v. Burkes, FA 652743 (Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”); see also, Alibaba Group Holding Limited v. YINGFENG WANG, FA 1568531 (Forum Aug. 21, 2014) (“Complainant has rights in the ALIBABA mark under the Policy through registration with trademark authorities in numerous countries around the world.”)..
Respondent’s domain name contains Complainant’s FUNDING CIRCLE trademark less its impermissible space, and concludes with the top level domain name “.cc.” The slight differences between Respondent’s <fundingcircle.cc> domain name and Complainant’s trademark are insufficient to distinguish one from the other for the purposes of Policy ¶ 4(a)(i). Therefore, the Panel concludes that Respondent’s <fundingcircle.cc> domain name is identical to Complainant’s FUNDING CIRCLE trademark. See Rockwell Automation v. Zhao Ke, FA 1760051 (Forum Jan. 2, 2018) (“The disputed domain name <rockwellautomation.co> corresponds to Complainant's registered ROCKWELL AUTOMATION mark, with the space omitted and the ".co" top-level domain appended thereto. These alterations do not distinguish the domain name from Complainant's mark for purposes of the Policy.”).
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). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
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 interests in respect of the at‑issue domain name.
WHOIS information for the at-issue domain name identifies the domain name’s registrant as “Brian Shaw / FC” and the record before the Panel contains no evidence that otherwise tends to prove that Respondent is commonly known by the <fundingcircle.cc> domain name. The Panel therefore concludes that Respondent is not commonly known by the <fundingcircle.cc> domain name for the purposes of Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Respondent uses the trademark identical <fundingcircle.cc> domain name to address a website displaying pay-per-click links to third-parties some of which compete with or directly reference Complainant. Such links include: “Funding Circle,” “National Funding,” “Small Business Loans,” and “Business Lending Loans.” Using the domain name in this manner is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use of the at-issue domain name pursuant to Policy ¶ 4(c)(iii). See Danbyg Ejendomme A/S v. lb Hansen / guerciotti, FA1504001613867 (Forum June 2, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name where the disputed domain name resolved to a website that offered both competing hyperlinks and hyperlinks unrelated to the complainant’s business).
Moreover, Respondent uses the at-issue domain name to host an email address which facilitates a phishing scheme. Respondent sends email from a <fundingcircle.cc> address pretending to be from a representative of Complainant. The email requests bank statements and other personal information from recipients. Respondent’s use of such email so that Respondent may pass itself off as Complainant in furtherance of fraud is also not indicative of rights or legitimate interests under Policy ¶¶ 4(c)(i) or (iii). See DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (”Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”); see also Cubist Pharmaceuticals, Inc. v. Gregory Stea, FA1403001550388 (Forum May 5, 2014) (“Respondent is using the domain name in emails to various IT hardware suppliers in an attempt to impersonate Complainant and defraud its customers. The domain name also resolved to a website similar to Complainant's website. The Panel found that such actions precluded a bona fide offer or fair use.”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name pursuant to Policy ¶ 4(a)(ii).
The at-issue domain name was registered and is being used in bad faith. As discussed below without limitation, circumstances are present which compel the Panel to conclude that Respondent has acted in bad faith pursuant to Policy ¶ 4(a)(iii).
First and as mentioned above regarding rights and legitimate interests, Respondent uses the at-issue domain name to address a website displaying links to third party entities some of which compete with Complainant. Respondent’s afore mentioned use of the trademark identical <fundingcircle.cc> domain name demonstrates bad faith under Policy ¶ 4(b)(iii) and (iv). See Health Republic Insurance Company v. Above.com Legal, FA1506001622088 (Forum July 10, 2015) (“The use of a domain name’s resolving website to host links to competitors of a complainant shows intent to disrupt that complainant’s business, thereby showing bad faith in use and registration under Policy ¶ 4(b)(iii).”); see also Staples, Inc. and Staples the Office Superstores, LLC v. HANNA EL HIN / DTAPLES.COM, FA1404001557007 (Forum June 6, 2014) (“Therefore, the Panel finds that Respondent registered and is using the <dtaples.com> domain name in bad faith under Policy ¶ 4(b)(iv) because the Respondent is using the disputed domain name to host third-party links to Complainant’s competitors from which Respondent is presumed to obtain some commercial benefit.”).
Additionally and as also discussed above concerning rights and legitimate interests, Respondent uses email from its trademark identical <fundingcircle.cc> domain name to deceive recipients into divulging personal financial information. Respondent’s use of <fundingcircle.cc> hosted email pretending to be from Complainant so that Respondent may pass itself off as Complainant in furtherance of a phishing scheme is also evidence of Respondent’s bad faith under Policy ¶¶ 4(b)(iii) and (iv). See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the <abbuie.com> domain name to impersonate Complainant’s CEO. Such use is undeniably disruptive to Complainant’s business and demonstrates bad faith pursuant to Policy ¶ 4(b)(iii), and/or Policy ¶ 4(b)(iv)”); see also, Airbnb, Inc. v. JAMES GRANT, FA 1760182 (Forum Dec. 28, 2017) (“Using a misleading email address to defraud unwary customers certainly constitutes bad faith.”).
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.cc> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: September 3, 2019
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