Funding Circle Limited v. douglas landau
Claim Number: FA2107001953587
Complainant is Funding Circle Limited (“Complainant”), represented by Amanda L. DeFord of McGuireWoods LLP, Virginia, USA. Respondent is douglas landau (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <funding-circle.us>, registered with FastDomain 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.
Steven M. Levy, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 1, 2021; the Forum received payment on July 1, 2021.
On Jul 1, 2021, FastDomain Inc. confirmed by e-mail to the Forum that the <funding-circle.us> domain name is registered with FastDomain Inc. and that Respondent is the current registrant of the name. FastDomain Inc. has verified that Respondent is bound by the FastDomain Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On July 2, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 22, 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@funding-circle.us. Also on July 2, 2021, 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 July 27, 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 to the usTLD Dispute Resolution Policy (“Rules”). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the usTLD Policy, usTLD 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 provides a lending marketplace to small and medium sized businesses. It raised funds from investors and then invests them in established, creditworthy businesses in different sectors and regions. Complainant has rights in the trademark FUNDING CIRCLE through its registration with the United States Patent and Trademark Office (“USPTO”) witih a priority date of May 2, 2017. Respondent’s <funding-circle.us> domain name, registered on April 17, 2021, is identical or confusingly similar to Complainant’s mark as it incorporates the mark in its entirety and adds a hyphen in place of a space, along with the “.us” country code top-level domain (“ccTLD”).
Respondent lacks rights and legitimate interests in the <funding-circle.us> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use its FUNDING CIRCLE mark in the disputed domain name. Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor dose it make a legitimate noncommercial or fair use thereof, but instead seeks to pass itself off as Complainant in fraudulent emails while hosting malicious software on the disputed domain name’s resolving website.
Respondent registered and/or uses the <funding-circle.us> domain name in bad faith. Respondent had actual knowledge of Complainant’s rights in the FUNDING CIRCLE mark at the time of registration. Respondent seeks to gather user information through its fraudulent emails and its hosting of malicious software on the disputed domain name’s resolving website.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights;
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the disputed domain name was registered and is 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 or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
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 claims rights in the FUNDING CIRCLE mark through its registration with the USPTO. Registration with the USPTO is generally sufficient in demonstrating 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)). As Complainant submits a copy of its USPTO Trademark Registration certificate, the Panel finds that Complainant has rights in the mark under Policy ¶ 4(a)(i).
Next Complainant argues that Respondent’s <funding-circle.us> domain name is identical or confusingly similar to Complainant’s FUNDING CIRCLE mark as it incorporates the mark in its entirety, replaces the space with a hyphen, and adds the “.us” ccTLD. Adding a hyphen as a space along with a ccTLD is generally insufficient in differentiating a disputed domain name from a multi-word mark it incorporates under Policy ¶ 4(a)(i). See Gen. Elec. Co. v. Bakhit, D2000-0386 (WIPO June 22, 2000) (finding that placing a hyphen in domain name between “General” and “Electric” is confusingly similar to the complainant’s mark); see also CDW Computer Ctrs., Inc. v. The Joy Co., FA 114463 (Forum July 25, 2002) (finding that the addition of the ccTLD “.us” is inconsequential and does not defeat a claim of confusing similarity). Therefore, the Panel finds that Respondent’s domain name is identical or confusingly similar to Complainant’s 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”).
The Panel finds nothing in the available evidence which indicates that Respondent has rights in a mark identical to the disputed domain name, which would serve to satisfy Policy ¶ 4(c)(i). See Pepsico, Inc. v. Becky, FA 117014 (Forum Sept. 3, 2002) (holding that because the respondent did not own any trademarks or service marks reflecting the <pepsicola.us> domain name, it had no rights or legitimate interests pursuant to Policy ¶ 4(c)(i)).
Next, Complainant argues that Respondent is not commonly known by the <funding-circle.us> domain name, nor has it authorized or licensed Respondent to use its FUNDING CIRCLE mark in the disputed domain name. Under Policy ¶ 4(c)(iii), relevant WHOIS information may inform the determination of whether a Respondent is or is not commonly known by a disputed domain name. Also, a lack of evidence demonstrating otherwise may affirm a Complainant’s assertion that it never authorized or licensed Respondent to use its mark in a disputed domain name. See Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sept. 4, 2018) (concluding that Respondent was not commonly known by the disputed domain name where “the WHOIS of record identifies the Respondent as “Bhawana Chandel,” and no information in the record shows that Respondent was authorized to use Complainant’s mark in any way.”) The WHOIS record for the disputed domain name identifies Respondent as “douglas landau”, and nothing in the record indicates that it is known otherwise. Furthermore, Respondent has not filed a Response nor made any other submission in this case and so there is nothing to rebut Complainant’s assertion that it never authorized or licensed Respondent to use its FUNDING CIRCLE mark in the disputed domain name. Therefore, the Panel finds no evidence upon which to conclude that Respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(iii).
Further, Complainant argues that Respondent does not use the <funding-circle.us> domain name for any bona fide offering of goods or services, nor does it make a legitimate noncommercial or fair use thereof. Under Policy ¶¶ 4(c)(ii) and (iv), using a disputed domain name to host malicious software, while passing oneself off as a complainant in fraudulent emails is not considered a bona fide offering of goods or services, nor a legitimate noncommercial or fair use. See Snap Inc. v. Domain Admin / Whois Privacy Corp., FA 1735300 (Forum July 14, 2017) (“Use of a disputed domain name to offer malicious software does not constitute a bona fide offering or a legitimate use per Policy ¶ 4(c)(i) & (iii).”); see also Microsoft Corporation v. Terrence Green / Whois Agent / Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding the respondent’s use of the disputed domain names to send fraudulent emails purportedly from agents of complainant to be 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)). Complainant provides screenshots of the disputed domain name’s resolving website, which prompts the warning “We found a security threat”. It also supplies samples of emails originating from an address that uses the disputed domain name. In these emails, Respondent engages in a lengthy discussion with one of Complainant’s potential customers regarding the refinancing of a business loan. Respondent requests that the customer provide copies of bank statements, a voided check, a driver’s license, a recent tax return, and a recent balance sheet. These emails are signed with the name of someone claiming to be one of Complainant’s employees in the “Client Relations” department and the signature block also displays Complainant’s FUNDING CIRCLE mark in the same graphic logo used by Complainant. Complainant claims that this shows Respondent attempting to pass itself off as Complainant in furtherance of a fraudulent scheme. Based on the submitted evidence, the Panel agrees and finds that Respondent does not use the disputed domain name for any bona fide offering of goods or services and that it does not make a legitimate noncommercial or fair use of the domain name under Policy ¶¶ 4(c)(ii) and (iv).
Complainant claims that Respondent registered the <funding-circle.us> domain name with actual knowledge of Complainant’s rights in the FUNDING CIRCLE mark based upon the reputation of its mark and the use of it made by Respondent. Under Policy ¶ 4(a)(iii), actual knowledge is a sufficient foundation upon which to build a case of bad faith and is most often demonstrated through either the fame of a complainant’s mark or evidence of a respondent’s use of the domain name. See Spectrum Brands, Inc. v. Guo Li Bo, FA 1760233 (Forum Jan. 5, 2018) (“[T]he fact Respondent registered a domain name that looked identical to the SPECTRUM BRANDS mark and used that as an email address to pass itself off as Complainant shows that Respondent knew of Complainant and its trademark rights at the time of registration.”). Complainant claims that its “FUNDING CIRCLE brand have been widely recognized” and mentions that it “was named the ‘Best Small Business Loan for low APR’ by U.S. News & World Report in April 2019.” It further states that it has “invested significant time and resources in promoting its FUNDING CIRCLE Marks and building a reservoir of goodwill and its reputation as a high-quality service provider” and that there has been “favorable industry acceptance and recognition” of the mark. In support of these claims Complainant submits only a copy of one of its USPTO Trademark Registration Certificates and a screenshot of its own website. While the Registration Certificate certainly demonstrates the existence of trademark rights and Complainant’s own website shows that it has made some effort at promoting the mark, these items do not speak to the results of this effort nor the level of reputation with the public claimed by Complainant for the FUNDING CIRCLE mark.
However, the Panel notes that the disputed domain name incorporates Complainant’s mark in its entirety and that Respondent has used the disputed domain name to pass itself off as Complainant in emails going so far as to impersonate one of Complainant’s employees and use Complainant’s graphic FUNDING CIRCLE logo. Based on the submitted evidence of Respondent’s activities, the Panel agrees that it almost certainly registered the disputed domain name with actual knowledge of Complainant’s rights in the mark.
Next, Complainant argues that Respondent registered and/or uses the <funding-circle.us> domain name in bad faith by hosting malicious content on the disputed domain name’s resolving website while phishing for confidential information in emails. Under Policy ¶ 4(a)(iii), using a disputed domain name for malicious software and/or for phishing is generally considered evidence of bad faith. See Google LLC v. Host Master / 1337 Services LLC, FA 1943836 (Forum June 8, 2021) (“Complainant provides screenshots showing Respondent uses the disputed domain name to enable users to violate Complainant’s Terms of Service and in connection with malware distribution. This is evidence of bad faith per Policy ¶ 4(a)(iii).”); see also Nasdaq, Inc. v. kai mi, FA 1949499 (Forum July 1, 2021) (“Using a disputed domain name to pass off as a complainant in a phishing scheme can demonstrate bad faith per Policy ¶ 4(b)(iv).”). Complainant submits a screenshot showing that the disputed domain name’s resolving website prompts a security message for the internet user and further screenshots showing that Respondent used the disputed domain name to send fraudulent phishing emails seeking confidential personal and financial information from unsuspecting users. Respondent has not participated in this case and so it offers no alternate explanation for its actions. Upon a preponderance of the available evidence, the Panel finds that Respondent both registered and uses the disputed domain name in bad faith under Policy ¶ 4(a)(iii).
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <funding-circle.us> domain name be TRANSFERRED from Respondent to Complainant.
Steven M. Levy, Esq., Panelist
Dated: July 28, 2021
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