KMD Partners, LLC v. Beverly Parker
Claim Number: FA2010001918485
Complainant is KMD Partners, LLC (“Complainant”), represented by Michael A. Marrero of Ulmer & Berne, LLP, Ohio, USA. Respondent is Beverly Parker (“Respondent”), USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <creditninja2020.com>, registered with Web Commerce Communications Limited dba WebNic.cc.
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 October 27, 2020; the Forum received payment on October 27, 2020.
On October 28, 2020, Web Commerce Communications Limited dba WebNic.cc confirmed by e-mail to the Forum that the <creditninja2020.com> domain name is registered with Web Commerce Communications Limited dba WebNic.cc and that Respondent is the current registrant of the name. Web Commerce Communications Limited dba WebNic.cc has verified that Respondent is bound by the Web Commerce Communications Limited dba WebNic.cc 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 October 29, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 18, 2020 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@creditninja2020.com. Also on October 29, 2020, 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 November 22, 2020, 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 offers consumer loans and related services under the CREDITNIJA mark.
Complainant has rights in the CREDITNIJA mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <creditninja2020.com> domain name is identical or confusingly similar to Complainant’s mark as it differs only by the addition of the ".com" generic top-level domain ("gTLD") and the generic or descriptive term "2020."
Respondent does not have rights or legitimate interests in the <creditninja2020.com> domain name. Neither Respondent's name nor the WHOIS information indicate Respondent is commonly known by the disputed domain name. Respondent is not making a bona fide offering of goods or services or legitimate noncommercial or fair use with the at-issue domain name. Respondent uses the <creditninja2020.com> domain name to direct visitors to competitors of Complainant. Additionally, Respondent uses false or misleading information on the resolving webpage to purportedly offer lending services which may indicate use of the domain name for phishing.
Respondent registered and uses the <creditninja2020.com> domain name in bad faith. Respondent uses the Complainant's mark in the <creditninja2020.com> domain name and offers competing lending services via the resolving webpage. There is also evidence that indicates Respondent may be using the <creditninja2020.com> domain name in connection with phishing.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in CREDITNIJA.
Respondent is not affiliated with Complainant and is not authorized to use the CREDITNIJA mark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired trademark rights in CREDITNIJA.
Respondent uses the <creditninja2020.com> domain name to direct internet users to a website linking to competitors of Complainant and to fraudulently collect private data from <creditninja2020.com> website visitors.
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 registration of CREDITNIJA with the USPTO sufficiently demonstrates Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)).
Further, Respondent’s <creditninja2020.com> domain name contains Complainant’s entire CREDITNIJA trademark followed by the term “2020” with all followed by the generic top-level domain name “.com”. However, the differences between Complainant’s trademark and Respondent’s domain name do nothing to distinguish the domain name from Complainant’s trademark pursuant to Policy ¶ 4(a)(i). Therefore, the Panel concludes that Respondent’s <creditninja2020.com> domain name is confusingly similar to Complainant’s CREDITNIJA trademark. See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term and gTLD is insufficient in distinguishing an at-issue domain name from a mark under Policy ¶ 4(a)(i)).
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.
The WHOIS information for the at-issue domain name identifies the domain name’s registrant as “Beverly Parker” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by the <creditninja2020.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the <creditninja2020.com> domain name for the purposes of Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Additionally, Respondent uses the <creditninja2020.com> domain name to direct internet traffic intended for Complainant to a website offering links to third-party competitors of Complainant apparently for Respondent’s financial enrichment. Respondent’s use of the confusingly similar domain name in this manner falsely implies that there is a relationship between Complainant and Respondent when there is none and indicates neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See Ripple Labs Inc. v. NGYEN NGOC PHUONG THAO, FA 1741737 (Forum Aug.21, 2017) (“Respondent uses the [disputed] domain name to divert Internet users to Respondent’s website… confusing them into believing that some sort of affiliation exists between it and Complainant… [which] is 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 also General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”).
Moreover, Respondent is using the at-issue domain name to phish for private financial data of <creditninja2020.com> website visitors who mistakenly believe they are dealing with Complainant when they are not. The homepage for <creditninja2020.com> displays “CreditNinja2020.com” on its title bar and presents visitors with a web form requesting information such as name, address, birthdate, and the last 4 digits of the website visitor’s social security number. Pretending to be associated with Complainant, Respondent uses the false association created by the confusingly similar domain name and its associated website content to lull visitors into divulging their private information to Respondent. Respondent’s use of the at-issue domain name to phish for private data fails to show that Respondent has made a bona fide offering of goods or services under Policy ¶ 4 (c)(i) of the at-issue domain name, or a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See United States Postal Service v. Kehinde Okunola / Genuine ICT Centre, FA 1785420 (Forum June 6, 2018) (“Respondent uses the <uspscouriers.com> domain name both to sell services competing with the business of Complainant and to phish for personal identification information from Internet users. Neither of these uses of the domain name constitutes a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii) such as would confirm in Respondent rights to or legitimate interests in the domain name as provided in those subsections of the Policy.”).
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 under Policy ¶ 4(a)(ii).
Respondent’s <creditninja2020.com> domain name was registered and used in bad faith. As discussed below without limitation, bad faith circumstances are present which compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
As mentioned above regarding rights and legitimate interests, Respondent’s confusingly similar domain is used to address a website so that it may pass itself off as being sponsored by, or affiliated with, Complainant when there is no such sponsorship or affiliation. Respondent’s <creditninja2020.com> website offers pay-per-click styled links to Complainant’s competition thereby capitalizing on the confusion Respondent intentionally created between its at-issue domain name and Complainant’s trademark. Using the at-issue domain name to give a false impression of Respondent’s website’s affiliation with Complainant in order to exploit the goodwill in Complainant’s trademark shows Respondent’s bad faith registration and use of the <creditninja2020.com> domain name per Policy ¶¶ 4(b)(iii) and (iv). See ZIH Corp. v. ou yang lin q, FA1761403 (Forum December 29, 2017) (Finding bad faith where Respondent used the infringing domain name to disrupt Complainant’s business by diverting internet users from Complainant’s website to Respondent’s website where it offered competing printer products); see also, Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”).
Furthermore and as also discussed above regarding rights and legitimate interests, Respondent is using the confusingly similar domain name to perpetrate a phishing scheme designed to extract private information from third-parties who may incorrectly believe they are dealing with Complainant. Respondent’s phishing endeavor shows Respondent to have registered and used the <creditninja2020.com> domain name in bad faith. See Wells Fargo & Co. v. Maniac State, FA 608239 (Forum Jan. 19, 2006) (finding bad faith registration and use where the respondent was using the <wellsbankupdate.com> domain name in order to fraudulently acquire the personal and financial information of the complainant’s customers). Complainant also points to Respondent’s use of a false physical address on the <creditninja2020.com> website, its registering <creditninja2020.com> with a registrar in a country other than the one on the address listed on the <creditninja2020.com> website, and its displaying misleading information on the website as being consistent with Respondent’s apparent actual phishing for personal data and suggestive of an intent to use the domain name for various other archetype phishing schemes.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <creditninja2020.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: November 23, 2020
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