Oportun, Inc. v. Qian Meng Dan / Patiyan Yampray / Domain Admin / Whois Privacy Corp.
Claim Number: FA2102001930916
Complainant is Oportun, Inc. (“Complainant”), represented by Thomas E. Zutic of DLA Piper LLP, District of Columbia, USA. Respondent is Qian Meng Dan / Patiyan Yampray / Domain Admin / Whois Privacy Corp. (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <oporutn.com>, <oportnu.com>, <oportunloans.com>, and <oportunoloans.com>, registered with DNSPod, Inc., NameSilo, LLC, and Internet Domain Service BS Corp.
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.
Steven M. Levy, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 4, 2021; the Forum received payment on February 4, 2021. The Complaint was received in English.
On February 4, 2021 and Feb 05, 2021, DNSPod, Inc., NameSilo, LLC, and Internet Domain Service BS Corp confirmed by e-mail to the Forum that the <oporutn.com> ,<oportnu.com>, <oportunloans.com>, and <oportunoloans.com> domain names are registered with DNSPod, Inc., NameSilo, LLC, and Internet Domain Service BS Corp, and that Respondent is the current registrant of the names. DNSPod, Inc., NameSilo, LLC, and Internet Domain Service BS Corp have verified that Respondent is bound by the DNSPod, Inc., NameSilo, LLC, and Internet Domain Service BS Corp registration agreements 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 February 10, 2021, the Forum served the English language Complaint and all Annexes, including a Chinese and English language Written Notice of the Complaint, setting a deadline of March 2, 2021 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@oporutn.com, postmaster@oportnu.com, postmaster@oportunloans.com, postmaster@andoportunoloans.com. Also on February 10, 2021, the Chinese and English language 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 March 4, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Steven M. Levy, Esq. 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant, Oportun, Inc., lends money to hardworking, low-to-moderate income individuals to help them move forward in their lives, demonstrate creditworthiness, and establish the credit history they need to access new opportunities. Complainant has rights in the trademark OPORTUN based on use in commerce since 2015 by its predecessor-in-interest, and on registration with the United States Patent and Trademark Office (“USPTO”) in 2016. Respondent’s <oporutn.com>, <oportnu.com>, <oportunloans.com>, and <oportunoloans.com> domain names, registered on various dates in 2020[i], are confusingly similar to Complainant’s mark because they either misspell the OPORTUN mark and/or add the descriptive term “loans” to the mark, as well as the “.com” generic top level domain (“gTLD”).
Respondent does not have rights or legitimate interests in the <oporutn.com>, <oportnu.com>, <oportunloans.com>, and <oportunoloans.com> domain names. Respondent is not commonly known by the disputed domain names and Complainant has not licensed or permitted Respondent to use the OPORTUN mark. Additionally, Respondent uses the disputed domain names to divert users who are seeking Complainant’s services. Furthermore, Respondent must have chosen the disputed domain names to suggest an association with Complainant because the OPORTUN mark is an arbitrary and coined term.
Respondent registered and uses the disputed domain names in bad faith. It is not possible to conceive of a plausible circumstance in which the Respondent could legitimately use the domain names. Further, Respondent displays a pattern of bad faith by registering multiple typosquatted domain names containing the OPORTUN mark. Respondent could not have been unaware of Complainant’s mark as it is well known and Respondent obviously had Complainant in mind when registering these domain names. It has no legitimate excuse for registering and making use of the disputed domain names and there is no good faith explanation for Respondent’s registration and use thereof.
B. Respondent
Respondent failed to submit a Response in this proceeding.
PRELIMINARY ISSUE: MULTIPLE RESPONDENTS
In the instant proceedings, Complainant has alleged that the differently-named entities that are identified in the WHOIS records for the multiple disputed domain names are effectively controlled by the same person and/or entity, which is operating under certain aliases. It then requests that these different Respondent’s be consolidated into the present proceedings. Paragraph 3(c) of the Rules provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” This was addressed in a prior case brought by Complainant, Oportun, Inc. v. Domain Admin / Whois Privacy Corp., FA 1872675 (Forum Jan. 12, 2020), in which multiple Respondents were consolidated into a single case where the disputed domain names displayed some similarities in their WHOIS information, they were held at the same registrar, they used the same name servers, and all resolved to similar websites. Here, Complainant points out that the <oporutn.com>, and <oportnu.com> domain names were registered on the same day using the same registrar and they both use the same name servers and resolve to similar pay-per-click websites. In fact, after the Complaint was filed, the registrar for these two domain names identified the owner of both as “Qian Meng Dan”.
With respect to the <oportunloans.com> and <oportunoloans.com> domain names, Complainant notes that they both have a similar structure and were registered “within a time period of a few months” of each other and the <oporutn.com>, and <oportnu.com> domain names. In support of its request for consolidation, Complainant cites the decision in SPTC, Inc. and Sotheby's v. Sorokina Galina Konstantinovna / Kuzmin Sergei Ivanovich, FA 1772891 (Forum Mar. 26, 2018) as the two disputed domain names in that case were “among other things, nearly identical and registered within a time period of a few months with an apparent common purpose”. Id. A reading of this decision reveals that the Panel found grounds for consolidation where the domain names <sothebys-enchrese.com> and <sotheby-enchrese.com> are “nearly identical, were registered within the same two-month period, utilize the same registrar and name servers, and currently resolve or have resolved to identical websites”. Complainant next cites the decision in Capital One Financial Corp. v. Fred C / Sharron W, FA 1751172 (Forum Nov. 14, 2017) which found that “both domain names used the same registrar, as well as the same format for completion of the related WHOIS information and the same name servers, and, further, that both resolving websites are identical to one another.” Id.
In addressing the <oportunloans.com> and <oportunoloans.com> domain names, Complainant acknowledges that they were registered on different dates (May 26, 2020 and December 14, 2020 respectively) and using different registrars. However, the Panel also notes that there are a number of differences between these two domain names as well as between them and the other two disputed domain names in this case. The WHOIS records for the <oportunloans.com> and <oportunoloans.com> domain names reflect addresses that are different from each other – one in Thailand and another, a privacy service in the Bahamas. They also use different email addresses, different name servers, and resolve to different website content – the former to a site purporting to offer personal loans in competition with Complainant and the latter to a blank website displaying the message “Hmmm… can’t reach this page”. Under these circumstances where the only similarity between these two disputed domain names is their format (both using the word “loans”) and the only similarity between them and the <oporutn.com>, and <oportnu.com> domain names is copying of the OPORTUN mark and the use of a misspelling in the <oportunoloans.com> domain name, the Panel cannot conclude that there exist sufficient similarities to make it more likely than not that all of the disputed domain names are effectively controlled by the same person and/or entity. See, e.g., Oboleo Ltd v. 杨智超 (Zhi Chao Yang), Zhichao Yang, Zhichao, Privacy Administrator, Anonymize, Inc., Carolina Rodrigues, Fundacion Comercio Electronico, and Milen Radumilo, D2020-1952 (WIPO Oct. 10, 2020) (consolidation of certain disputed domain names disallowed where the WHOIS records reflected different owners, they were registered on different dates, and they used different registrars and name servers); Virgin Enterprises Limited v. David Barrow / Claire Sinclair, unknown / Graham Mitchell, unknown / Conrad Coulburn, unknown / Cala Horra, unknown / Bk Dummett, unknown / Dee Lee, unknown / Junior Junior, unknown / Goku Naruto, unknown / Jason Smyth, unknown / Andrew Coulburn, D2020-2385 (WIPO Nov. 19, 2020) (no consolidation of domain names that were registered 2 months before any of the other disputed domain names and which used different registrant names, as well as different postal and email addresses).
In light of the above, the Panel determines that the present case will proceed against the <oporutn.com>, and <oportnu.com> domain names but not against the <oportunloans.com> and <oportunoloans.com> domain names due to the lack of a sufficient nexus between all of the aforementioned. However, Complainant is free to file subsequent proceedings in respect of these latter two domain names.
Preliminary Issue: Language of Proceeding
The Panel notes that the Registration Agreement for the <oporutn.com> and <oportnu.com> domain names is written in Chinese, thereby making this the language of the proceedings under Rule 11. However, Complainant has alleged that Respondent is conversant and proficient in English and requested that the proceeding be conducted in that language. The Panel has the discretion, under UDRP Rule 11(a), to determine the appropriate language of the proceedings taking into consideration the particular circumstances of the case. See 23andMe, Inc. v. Fergyuson Mark, FA 1930516 (Forum Mar. 5, 2021) (finding it appropriate to conduct the proceedings in English under Rule 11, despite Russian being designated as the language in the registration agreement because “the domain name and the website to which it resolves are in English”). Complainant contends that since the OPORTUN mark is a coined term in the English language and the respective websites of the disputed domain names display content exclusively in English, that Respondent is competent to understand this language. Furthermore, Respondent has failed to participate in these proceedings and Complainant would be disadvantaged by having to unnecessarily translate documents into the Chinese language due to the attendant expense and delay. Niantic, Inc. v. Dmitry Bezrukov / VladimirShcherbinin, FA 1827280 (Forum Mar. 15, 2019) (Proceedings conducted in English. “In making this determination, the Panel may weigh the relative time and expense in enforcing the Russian language agreement, which would result in prejudice toward either party.”)
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to support its assertion that the Respondent is conversant and proficient in the English language. Further, Respondent has not appeared to object to this request. After considering the circumstance of the present case, the Panel decides that the proceeding will take place in the English language.
(1) the domain names registered by Respondent are confusingly similar to a trademark in which Complainant has rights;
(2) Respondent has no rights to or legitimate interests in respect of the domain names; and
(3) the disputed domain names were registered and are being used by Respondent in bad faith.
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 and evidence 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 and supported 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”).
Complainant asserts rights in the OPORTUN mark based on registration with the USPTO. Registration of a mark with the USPTO is a valid showing of rights in a mark per Policy ¶ 4(a)(i). 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.”) Since Complainant provides copies of its USPTO registration certificates for the OPORTUN trademark, the Panel finds that Complainant has rights in the mark under Policy ¶ 4(a)(i).
Next, Complainant argues that Respondent’s <oporutn.com> and <oportnu.com> domain names are confusingly similar to Complainant’s OPORTUN mark because they misspell the mark and add only the “.com” gTLD. Minor misspellings of a mark as well as the addition of a non-distinctive gTLD do not negate any confusing similarity between a disputed domain name and a mark under Policy ¶ 4(a)(i). See Vanguard Trademark Holdings USA LLC v. Shuai Wei Xu / Xu Shuai Wei, FA 1784238 (Forum June 1, 2018) (“Respondent arrives at each of the disputed domain names by merely misspelling each of the disputed domain names and adding the gTLD ‘.com.’ This is insufficient to distinguish the disputed domain names from Complainant’s trademark.”); see also Pear Therapeutics, Inc. v. Bella Susan / SolveIten, FA 1926269 (Forum Feb. 3, 2021) (“Respondent’s <peartherapuetics.com> domain name is confusingly similar to Complainant’s PEAR THERAPEUTICS mark because it simply transposes the letters ‘U’ and ‘E’ in ‘therapeutics’ and adds the ‘.com’ gTLD. Transposing letters in a mark and the addition of a gTLD to a mark does not negate any confusing similarity between a disputed domain name and a mark under Policy ¶ 4(a)(i).”) Complainant notes that Respondent employs transpositions of the letters “t” or “n”, and the letter “u” in the disputed domain names and the differences between the terms “oporutn”, “oportnu”, and Complainant’s actual mark OPORTUN are unlikely to be easily detected by most internet users. Thus, the Panel finds that the disputed domain names are confusingly similar to the OPORTUN mark under Policy ¶ 4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). Should it succeed in this effort, the burden then shifts to Respondent to show that it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”).
Complainant argues that Respondent does not have rights or legitimate interests in the <oporutn.com> or <oportnu.com> domain names because Respondent is not commonly known by the disputed domain names and Complainant has not licensed or permitted Respondent to use the OPORTUN mark. In considering this issue, WHOIS information can be used to show that a respondent is or is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. Timothy Mays aka Linda Haley aka Edith Barberdi, FA 1617061 (Forum June 9, 2015) (concluding that the respondent was not commonly known by the <amazondevice.org>, <amazondevices.org> and <buyamazondevices.com> domain names under Policy ¶ 4(c)(ii), as the pertinent WHOIS information identified “Timothy Mays,” “Linda Haley,” and “Edith Barberdi” as registrants of the disputed domain names). Additionally, lack of a license, permission, or authorization to use a mark further supports a claim that a respondent lacks rights in a mark. See SPTC, Inc. and Sotheby’s v. Tony Yeh shiun, FA 1810835 (Forum Nov. 13, 2018) (finding no rights or legitimate interests in the <sothebys.email> domain name where the WHOIS record identified Respondent as “Tony Yeh shiun,” Complainant never authorized or permitted Respondent to use the SOTHEBY’S mark, and Respondent failed to submit a response.). Here, the WHOIS information names “Qian Meng Dan” as the registrant of the disputed domain names and no information suggests that it is known otherwise or that Complainant has authorized Respondent to use the OPORTUN mark in any way. Respondent has not filed a response or made any other submission in this case and so it does not dispute Complainant’s contention. Thus, the Panel finds no grounds upon which to conclude that Respondent is commonly known by the disputed domain names under Policy ¶ 4(c)(ii).
Complainant goes on to assert that Respondent diverts Internet users who are seeking legitimate OPORTUN services by seeking to create an impression of an association with Complainant. Although the Complaint does not specifically cite Policy ¶¶ 4(c)(i) and (iii) or their language, the Panel interprets the above allegations as fitting within the parameters of these sub-paragraphs. The use of a disputed domain name to divert Internet users away from a complainant’s website and to a respondent’s website does not constitute a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Insomniac Holdings, LLC v. Mark Daniels, FA 1735969 (Forum July 15, 2017) (Respondent uses the disputed domain names to resolve to “a site containing pay-per-click hyperlinks and advertisements. * * * Since these kinds of advertisements generate revenue for the holder of a domain name, they cannot be noncommercial; further, they do not qualify as a bona fide offering.”) Complainant provides screenshots of the pay-per-click websites that resolve from the disputed domain names and these contain categories relating to Complainant’s business such as “Personal Loan”, “Debt Consolidation”, and “Auto Loan Pre Approval”. Respondent has not appeared in this case or otherwise sought to explain its actions. Thus, the Panel finds that Complainant has made out a prima facie case which has not been rebutted by Respondent and that, by a preponderance of the available evidence, has shown that Respondent is not using the domain names for a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor has it made a legitimate noncommercial or fair use thereof under Policy ¶ 4(c)(iii).
Furthermore, Complainant argues that Respondent must have chosen the disputed domain names to suggest an association with Complainant because the OPORTUN mark is a coined term. The incorporation of a coined or “fanciful” mark in a disputed domain name may further support an assertion that a respondent lacks rights or legitimate interests in the disputed domain name. See Udemy Inc. v. Milen Radumilo, FA 1694614 (Forum Nov. 23, 2016) (finding that the “fanciful” nature of complainant’s mark contributed to the presumption that respondent lacked rights and legitimate interests in a domain name containing said mark).
Complainant contends that Respondent must have had actual knowledge of the OPORTUN mark since the mark is well known. Panels have found actual knowledge when circumstances indicate that a respondent must have known of a complainant’s rights in the mark. See Google Inc. v. Ahmed Humood, FA 1591796 (Forum Jan. 7, 2015) (“This Panel makes that inference; Respondent has actual knowledge of Complainant’s mark at the time of domain name registration based on the fame of Complainant’s GOOGLE mark and Respondent’s use of one of the disputed domain names to detail Internet domain name registration and maintenance services related to and in competition with Complainant.”) Complainant asserts that since it is a leading provider of personal loans and its OPORTUN mark is an arbitrary and coined term created by Complainant, it is highly unlikely that Respondent would have been unaware of Complainant’s rights in the OPORTUN mark. In support, Complainant submits into evidence copies of entries in The Wall Street Journal and Time magazine, both of which feature Complainant’s mark. Further, since the pay-per-click links at the websites to which the disputed domain names resolve refer to the consumer loan field of business in which Complainant is engaged, Respondent must have obviously had Complainant in mind when registering these domain names. The Panel finds that the evidence presented in this case makes it highly likely that Respondent had actual knowledge of Complainant’s rights in the OPORTUN mark at the time it registered the disputed domain names and that this can form the foundation upon which to build a case for bad faith.
Further, it is asserted that “’it is not possible to conceive of a plausible circumstance in which the Respondent could legitimately use’ the Domain Names” and that “there is no good faith explanation for Respondent’s registration and use of the Domain Names”. The Panel will not, here, engage in hypotheticals regarding what legitimate or good faith use could have been made of the disputed domain names. However, although not directly addressed by Complainant in its section on bad faith, the Panel notes that registering a confusingly similar domain name to divert internet users to a respondent’s webpage featuring competitive pay-per-click hyperlinks can demonstrate bad faith per Policy ¶¶ 4(b)(iii) and (iv). See block.one v. Negalize Interactive Things, FA 1798280 (Forum Aug. 21, 2018) (“Offering links to competing products or services can demonstrate bad faith under Policy ¶ 4(b)(iii) where a respondent registers a domain name that is confusingly similar to the mark of another.”); see also American Council on Education and GED Testing Service LLC v. Anthony Williams, FA1760954 (Forum Jan. 8, 2018) (“Respondent’s hosting of links to Complainant’s competitors demonstrates bad faith registration and use of the <geddiploma.org> domain name pursuant to Policy ¶ 4(b)(iv)”). Here, Complainant submits a screenshot of the <oporutn.com> and <oportnu.com> home pages and, as noted above, these contain monetized links to categories which directly touch on Complainant’s line of business. It appears that these pay-per-click websites are being used to divert Internet traffic to third party sites, including sites that offer goods and/or services that compete with Complainant’s services. As supported by the available evidence, and not substantively rebutted by Respondent, the Panel finds that Respondent registered and uses domain names that are confusingly similar to Complainant’s mark for use with pay-per-click pages in bad faith per Policy ¶¶ 4(b)(iii) and (iv).
Complainant next argues that Respondent registered the <oporutn.com> and <oportnu.com> domain names in bad faith based upon Respondent’s pattern of bad faith conduct. Registration of multiple domain names in a single proceeding may suggest bad faith pursuant to Policy ¶ 4(b)(ii). See Microsoft Corporation and Skype v. zhong biao zhang / Unknown company / zhong zhang, FA1401001538218 (Forum Feb. 20, 2014) (holding that the respondent’s registration of three domain names incorporating variants of the complainant’s SKYPE mark reflected a pattern of bad faith registration under Policy ¶ 4(b)(ii)). Complainant notes that Respondent registered two domain names incorporating the OPORTUN mark and the Panel views this as further support for the assertion that Respondent was specifically targeting the mark in bad faith.
Finally, Complainant asserts that Respondent registered and uses the <oporutn.com> and <oportnu.com> domain names in bad faith because Respondent engages in typosquatting. Typosquatting may, itself, provide evidence of bad faith under Policy ¶ 4(a)(iii). See Homer TLC, Inc. v. Artem Ponomarev, FA 1623825 (Forum July 20, 2015) (“Finally, under this head of the Policy, it is evident that the <homededpot.com> domain name is an instance of typosquatting, which is the deliberate misspelling of the mark of another in a domain name, done to take advantage of common typing errors made by Internet users in entering into a web browser the name of an enterprise with which they would like to do business online. Typosquatting is independent evidence of bad faith in the registration and use of a domain name.”) The Panel agrees with Complainant and finds that typosquatting by the Respondent provides further evidence of bad faith registration and use in the present case.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED with respect to the <oporutn.com> and <oportnu.com> domain names.
Accordingly, it is Ordered that the <oporutn.com> and <oportnu.com> domain names be TRANSFERRED from Respondent to Complainant.
With respect to the <oportunloans.com> and <oportunoloans.com> domain names, it is Ordered that these REMAIN WITH their respective Registrants and that the present Complaint be DISMISSED WITHOUT PREJUDICE.
Steven M. Levy, Esq., Panelist
Dated: March 8, 2021
[i] The domain name <oportunoloans.com> was registered on May 26, 2020, both <oporutn.com> and <oportnu.com> were registered on October 22, 2020, and <oportunloans.com> was registered on December 14, 2020.
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