Opportunity Financial, LLC v. Domain Admin / Whois Privacy Corp.
Claim Number: FA2110001968350
Complainant is Opportunity Financial, LLC (“Complainant”), represented by Liz Brodzinski of Banner & Witcoff, Ltd., Illinois, USA. Respondent is Domain Admin / Whois Privacy Corp. (“Respondent”), Bahamas.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <opploans-myoffers.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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 8, 2021; the Forum received payment on October 8, 2021.
On October 12, 2021, Internet Domain Service BS Corp confirmed by e-mail to the Forum that the <opploans-myoffers.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 October 12, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 1, 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@opploans-myoffers.com. Also on October 12, 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 November 5, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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 is a financial services company specializing in short term loans. Complainant has rights in the OPPLOANS mark through its registration with the United States Patent and Trademark Office (“USPTO”) (Reg. 5,042,920, registered Sep. 13, 2016). The opploans-myoffers.com> domain name is confusingly similar to the mark as it incorporates the mark in its entirety and adds a hyphen, generic words, and the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <opploans-myoffers.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use its OPPLOANS mark in the disputed domain name. Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use, but offers competing services on the disputed domain name’s resolving website.
Respondent registered and uses the <opploans-myoffers.com> domain name in bad faith. Respondent disrupts Complainant’s business for commercial gain by passing off as Complainant and offering competing services on the disputed domain name’s resolving website. Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the OPPLOANS mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is a financial services company specializing in short term loans. Complainant has rights in the OPPLOANS mark through its registration with the USPTO (Reg. 5,042,920, registered Sep. 13, 2016). The opploans-myoffers.com> domain name is confusingly similar to the OPPLOANS mark.
Respondent registered the <opploans-myoffers.com> domain name on Jul. 29, 2021.
Respondent lacks rights and legitimate interests in the <opploans-myoffers.com> domain name. Respondent uses the disputed domain name to offer competing services on the domain’s resolving website.
Respondent registered and uses the <opploans-myoffers.com> 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 OPPLOANS mark under Policy ¶ 4(a)(i) through registration with the USPTO. See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration with the USPTO was sufficient to establish the complainant’s rights in the HOME DEPOT mark).
Respondent registered and uses the <opploans-myoffers.com> domain name in bad faith. The domain name incorporates the OPPLOANS mark in its entirety and adds a hyphen, generic words, and the “.com” generic top-level domain (“gTLD”).
Complainant has not authorized or licensed Respondent to use its OPPLOANS mark in the disputed domain name. Under Policy ¶ 4(c)(ii), where a response is lacking, lack of relevant WHOIS information may demonstrate that a Respondent is not commonly known by a disputed domain name. Additionally, a lack of evidence demonstrating otherwise may affirm a Complainant’s assertion that it never authorized or licensed Respondent to use its mark in the disputed domain name. See Tenza Trading Ltd. v. WhoisProtectService.net / PROTECTSERVICE, LTD., FA1506001624077 (Forum July 31, 2015) (“The WHOIS information lists ‘WhoisProtectService.net’ as the registrant of record for the disputed domain names. Accordingly, in the absence of a Response, there is no evidence to indicate that Respondent might be known by any of the domain names.”). Here, the WHOIS of record lists only a privacy service, and nothing in the record rebuts Complainant’s assertion that it never authorized or licensed Respondent to use its OPPLOANS mark in the disputed domain name. Therefore, Respondent is not commonly known by the <opploans-myoffers.com> domain name under Policy ¶ 4(c)(ii).
Complainant’s screenshot of the disputed domain name’s resolving website, which features Complainant’s mark and purports to offer various amounts of loans. Therefore, Respondent does not use the <opploans-myoffers.com> domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). See 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).”).
Respondent disrupts Complainant’s business for commercial gain with the <opploans-myoffers.com> domain name. Under Policy ¶¶ 4(b)(iii) and (iv), using a disputed domain name to pass off as a complainant and offer competing goods or services is generally considered bad faith disruption for commercial gain. See Disney Enters., Inc. v. Noel, FA 198805 (Forum Nov. 11, 2003) (“Respondent registered a domain name confusingly similar to Complainant's mark to divert Internet users to a competitor's website. It is a reasonable inference that Respondent's purpose of registration and use was to either disrupt or create confusion for Complainant's business in bad faith pursuant to Policy ¶¶ 4(b)(iii) [and] (iv).”); see also The Prudential Insurance Company of America v. Henrique Bryan Souza / DATAMIX ENSINO DE INFORMATICA, FA 1718308 (Forum Apr. 3, 2017) (finding bad faith where the respondent used the disputed domain name to resolve to a website upon which the respondent imitated the complainant’s mark, logo, and color scheme to create a “strikingly similar” website).
Respondent registered the <opploans-myoffers.com> domain name with actual knowledge of Complainant’s rights in the OPPLOANS mark. Under Policy ¶ 4(a)(iii), actual knowledge is generally considered evidence of bad faith, and may be demonstrated by Respondent’s incorporation of the mark into the disputed domain name, as well as the use of the domain name’s resolving website. See Pfizer, Inc. v. Suger, D2002-0187 (WIPO Apr. 24, 2002) (finding that because the link between the complainant’s mark and the content advertised on the respondent’s website was obvious, the respondent “must have known about the Complainant’s mark when it registered the subject domain name”).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <opploans-myoffers.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: November 19, 2021
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