Braviant Holdings, LLC v. Domain Admin / Whois Privacy Corp.
Claim Number: FA2108001958097
Complainant is Braviant Holdings, LLC (“Complainant”), represented by Lindsay M.R. Jones of Merchant & Gould, P.C., Minnesota, USA. Respondent is Domain Admin / Whois Privacy Corp. (“Respondent”), Bahamas.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <balancecredit2021.com>, registered with 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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 4, 2021; the Forum received payment on August 4, 2021.
On August 5, 2021, Internet Domain Service BS Corp confirmed by e-mail to the Forum that the <balancecredit2021.com> domain name is registered with Internet Domain Service BS Corp and that Respondent is the current registrant of the name. Internet Domain Service BS Corp has verified that Respondent is bound by the Internet Domain Service BS Corp 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, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 26, 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@balancecredit2021.com. Also on August 6, 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 September 1, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Bruce E. Meyerson 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
1. Complainant, Braviant Holdings, LLC, is a financial services provider offering services related to personal loans and lines of credit. Complainant has rights in the BALANCE CREDIT mark based on registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 5,767,454, registered Jun. 04, 2019).
2. Respondent’s <balancecredit2021.com>[i] domain name is confusingly similar to Complainant’s mark since it incorporates Complainant’s mark in its entirety, adding the descriptive term “2021” and the “.com” generic top-level domain (“gTLD”).
3. Respondent lacks rights and legitimate interests in the <balancecredit2021.com> domain name. Respondent is not commonly known by the domain name, nor has Complainant licensed or permitted Respondent to use the BALANCE CREDIT mark.
4. Additionally, Respondent does not use the domain name for any bona fide offering of goods or services, nor for any legitimate noncommercial or fair use because Respondent uses Complainant’s BALANCE CREDIT mark in connection with the sale of the same financial services offered by Complainant under the mark. Consumers attempting to visit Complainant’s website at <balancecredit.com> to examine or request personal loan and line of credit services may inadvertently visit Respondent’s site.
5. Respondent registered and uses the <balancecredit2021.com> domain name in bad faith because Respondent uses a confusingly similar domain name to divert Internet traffic to its website and offer competitive financial services.
6. Moreover, Respondent uses the domain name to phish for consumer information.
7. Lastly, Respondent registered the <balancecredit2021.com> domain name with constructive and/or actual knowledge of Complainant’s rights in the BALANCE CREDIT mark based on the fact that Respondent acquired the domain name after Complainant’s use and registration of its trademark and that Respondent uses the domain name to sell identical services to those offered by Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the BALANCE CREDIT mark. Respondent’s domain name is confusingly similar to Complainant’s BALANCE CREDIT mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <balancecredit2021.com> domain name and that Respondent registered and uses the domain name 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 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”).
Complainant has rights in the BALANCE CREDIT mark through its registration with the USPTO (e.g., Reg. No. 5,767,454, registered June 4, 2019). Registration of a mark with a national trademark agency is sufficient to demonstrate rights in a mark under Policy ¶ 4(a)(i). See Brooks Sports, Inc. v. Joyce Cheadle, FA 1819065 (Forum Dec. 28, 2018) (finding that Complainant’s registration of the BROOKS mark with the USPTO sufficiently conferred its rights in the mark under Policy ¶ 4(a)(i).”). Therefore, Complainant has rights in the mark under Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <balancecredit2021.com> domain name is confusingly similar to Complainant’s BALANCE CREDIT mark because it incorporates Complainant’s mark in its entirety, adding the descriptive term “2021” and the gTLD “.com.” Complainant contends that the term “2021” is descriptive in reference to the financial services offered by Complainant. Under Policy ¶ 4(a)(i), neither adding numbers nor adding a gTLD to the complainant’s mark negate confusing similarity. See Bloomberg Finance L.P. v. network admin, FA 1622138 (Forum July 11, 2015) (“The addition, deletion, and switching of . . . numbers in domain names do not remove Respondent’s domain names from the realm of confusing similarity in relation to Complainant’s BLOOMBERG mark pursuant to Policy ¶ 4(a)(i).”); see also Pandora Media, Inc. v. MASATAMI KITA, FA 1622614 (Forum July 20, 2015) (holding the <pandora1.com> domain name confusingly similar to the PANDORA trademark because the only difference between the two was the addition of the numeral “1”); see additionally Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”). Therefore, the Panel holds that the <balancecredit2021.com> domain name is identical or confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the <balancecredit2021.com> domain name. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent.). The Panel holds that Complainant has made a prima facie case.
Complainant argues that Respondent does not have rights or legitimate interests in the <balancecredit2021.com> domain name because Respondent is not commonly known by the domain name, nor has Complainant licensed or permitted Respondent to use the BALANCE CREDIT mark. Under Policy ¶ 4(c)(ii), when no response is submitted, relevant WHOIS information may demonstrate that a respondent is not commonly known by a domain name. See Google Inc. v. Domain Admin / Whois Privacy Corp., FA1502001605239 (Forum Mar. 22, 2015) (“WHOIS information for the at-issue domain name lists ‘Domain Admin / Whois Privacy Corp.’ as the domain name’s registrant and there is nothing in the record that otherwise suggests Respondent is commonly known by the <google-status.com> domain name. Therefore, the Panel finds that Respondent is not commonly known by the at-issue domain name pursuant to Policy ¶ 4(c)(ii).”). Additionally, lack of authorization to use a mark is further evidence that a respondent is not commonly known by a domain name incorporating the mark. See Indeed, Inc. v. Ankit Bhardwaj / Recruiter, FA 1739470 (Forum Aug. 3, 2017) (”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.”). Here, the WHOIS information identifies “Domain Admin / Whois Privacy Corp” as the registrant of the domain name. Additionally, Complainant asserts that it has not licensed or permitted Respondent to use the BALANCE CREDIT mark. Thus, on the record in this proceeding, the Panel holds that Respondent is not commonly known by the <balancecredit2021.com> domain name under Policy ¶ 4(c)(ii).
Furthermore, Complainant argues that the Respondent does not use the <balancecredit2021.com> domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use because Respondent uses Complainant’s BALANCE CREDIT mark in connection with the sale of the same financial services offered by Complainant under the mark. Complainant alleges, and the Panel agrees, that consumers attempting to visit Complainant’s website at <balancecredit.com> to examine or request personal loan and line of credit services may inadvertently visit Respondent’s site. Use of a domain name incorporating the mark of another to sell competing goods or services does not constitute a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). See Vanguard Trademark Holdings USA LLC v. Dan Stanley Saturne, FA 1785085 (Forum June 8, 2018) (“Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use” where “Respondent is apparently using the disputed domain name to offer for sale competing services.”); 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).”). Complainant provides screenshots of Respondent’s website, which advertises financial services related to personal loans in competition with Complainant. Thus, the Panel holds that Respondent is not using the domain name for 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).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the <balancecredit2021.com> domain name in bad faith because Respondent uses a confusingly similar domain name to divert Internet traffic to its website and offer competitive financial services. Use of a confusingly similar domain name incorporating the mark of another to divert Internet users and offer competing goods or services is evidence of bad faith disruption of a complainant’s business under Policy ¶ 4(b)(iii) and an attempt to attract users for commercial gain under Policy ¶ 4(b)(iv). See Gardens Alive, Inc. v. D&S Linx, FA 203126 (Forum Nov. 20, 2003) (“Respondent registered and used the <my-seasons.com> domain name in bad faith pursuant to Policy ¶¶ 4(b)(iii) and (iv) because Respondent is using a domain name that is confusingly similar to the MYSEASONS mark for commercial benefit by diverting Internet users to the <thumbgreen.com> website, which sells competing goods and services.”). The record contains a screenshot of Respondent’s website which features financial services related to Complainant business. Thus, the finds bad faith under Policy ¶¶ 4(b)(iii) and (iv).
Furthermore, Complainant contends that Respondent uses the <balancecredit2021.com> domain name to phish for consumer information. Consumers who incorrectly believe the resolving website belongs to Complainant may request personal lines of credit or loans on the site, thereby subsequently login to the site or submit personal information, such as social security or bank account information. Per Policy ¶ 4(a)(iii), phishing for consumers’ information is itself evidence of bad faith. See Morgan Stanley v. Bruce Pu, FA 1764120 (Forum Feb. 2, 2018) (“[T]he screenshot of the resolving webpage allows users to input their name and email address, which Complainant claims Respondent uses that to fraudulently phish for information. Thus, the Panel agrees that Respondent phishes for information and finds that Respondent does so in bad faith under Policy ¶ 4(a)(iii).”). This is a further reason Respondent has engaged in bad faith per Policy ¶ 4(a)(iii).
Lastly, Complaint argues that Respondent registered the <balancecredit2021.com> domain name with actual knowledge of Complainant’s rights in the BALANCE CREDIT mark based on the fact that Respondent acquired the domain name after Complainant’s use and registration of its trademark and that Respondent uses the domain name to sell identical services to those offered by Complainant. Actual knowledge of a complainant’s trademark rights is sufficient to establish bad faith. See University of Rochester v. Park HyungJin, FA1410001587458 (Forum Dec. 9, 2014) (“. . .the Panel infers Respondent’s actual knowledge here based on Respondent’s complete use of the PERIFACTS mark in the <perifacts.com> domain name to promote links related to the field of obstetrics, where Complainant’s mark is used.”); see additionally G.D. Searle & Co. v. Pelham, FA 117911 (Forum Sept. 19, 2002) (“[I]t can be inferred that Respondent had knowledge of Complainant’s rights in the CELEBREX mark because Respondent is using the CELEBREX mark as a means to sell prescription drugs, including Complainant’s CELEBREX drug.”). Respondent’s use of the entirety of Complainant’s mark is strong evidence that Respondent had actual knowledge of Complainant’s rights when Respondent registered the <balancecredit2021.com> domain name. Therefore, the Panel holds that Respondent had actual knowledge of Complainant’s rights in the BALANCE CREDIT mark pursuant to Policy ¶ 4(a)(iii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <balancecredit2021.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: September 14, 2021
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