Braviant Holdings, LLC v. Domain Admin / GuardPrivacy.org
Claim Number: FA2110001968366
Complainant is Braviant Holdings, LLC (“Complainant”), represented by Lindsay M.R. Jones of Merchant & Gould, P.C., Minnesota, USA. Respondent is Domain Admin / GuardPrivacy.org (“Respondent”), Hong Kong.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <balancecredit-origin.com>, registered with Dynadot, LLC.
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.
Ho-Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 9, 2021; the Forum received payment on October 9, 2021.
On October 10, 2021, Dynadot, LLC confirmed by e-mail to the Forum that the disputed domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, LLC 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 11, 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@balancecredit-origin.com. Also on October 11, 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 3, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Ho-Hyun Nahm, 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 name be transferred from Respondent to Complainant.
A. Complainant
i) Complainant, Braviant Holdings, LLC, is a financial services provider offering services related to the provision of loans and lines of credit under its BALANCE CREDIT mark. Complainant maintains registration in the BALANCE CREDIT mark through its registration with the United States Patent and Trademark Office (“USPTO”). The disputed domain name is identical or confusingly similar to Complainant’s BALANCE CREDIT mark because it wholly incorporates Complainant’s mark while adding the term “origin” and the “.com” generic top-level domain (“gTLD”) to form the domain name.
ii) Respondent does not have any rights or legitimate interests in the disputed domain name because Respondent is not commonly known by the disputed domain name nor has Respondent been authorized to use Complainant’s BALANCE CREDIT mark. Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services nor for a legitimate noncommercial or fair use because Respondent uses Complainant’s mark to sell the same services as Complainant in competition with Complainant.
iii) Respondent registered and uses the disputed domain name in bad faith because Respondent engages in a pattern of bad faith registration and use. Additionally, Respondent disrupts Complainant’s business by selling services that compete with Complainant. Respondent further uses the disputed domain name to phish for users’ personal or financial information. Finally, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the BALANCE CREDIT mark.
B. Respondent
Respondent did not submit a response.
1. The disputed domain name was registered on August 28, 2021.
2. Complainant has established rights in the BALANCE CREDIT mark through its registration with the USPTO (e.g., Reg. No. 5,767,454 – Registered June 4, 2019).
3. Respondent uses the disputed domain name to offer services in competition with Complainant.
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 claims rights in the BALANCE CREDIT mark through its registration with the USPTO. Registration of a mark with the USPTO is sufficient to establish rights in a mark under Policy ¶ 4(a)(i). Recreational Equipment, Inc. v. Liu Chan Yuan, FA 2107001954773 (Forum Aug. 9, 2021) (“Registration of a mark with the USPTO is sufficient to demonstrate rights in the mark per Policy ¶ 4(a)(i)”). Complainant provides evidence of its registration of the BALANCE CREDIT mark with the USPTO (e.g., Reg. No. 5,767,454 – Registered Jun. 4, 2019). Therefore, the Panel finds that Complainant has rights in the BALANCE CREDIT mark under Policy ¶ 4(a)(i).
Complainant argues that the <balancecredit-origin.com> domain name is identical or confusingly similar to Complainant’s BALANCE CREDIT mark because it wholly incorporates Complainant’s mark adding a descriptive term and the “.com” gTLD to form the domain name. A domain name may be found to be identical or confusingly similar to a Complainant’s mark, under Policy ¶ 4(a)(i), despite the addition of descriptive terms and a gTLD. See Skechers U.S.A., Inc. and Skechers U.S.A., Inc. II v. Svensson Viljae, FA 1784650 (Forum June 1, 2018) (finding confusing similarity where “[t]he disputed domain name <skechers-outlet.com> adds a hyphen and the generic term ‘outlet’ to Complainant's registered SKECHERS mark, and appends the ‘.com’ top-level domain.”). The added term here is “origin.” Therefore, the Panel finds that the disputed domain name is 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), then the burden shifts to Respondent to show 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 Respondent does not have any rights or legitimate interests in the disputed domain name because Respondent is not commonly known by the disputed domain name nor has Respondent been authorized to use Complainant’s BALANCE CREDIT mark. Evidence of a respondent not being commonly known by a domain name, under Policy ¶ 4(c)(ii), may be found where the identifying WHOIS information is unrelated to a domain name and where a respondent lacks authorization to use a complainant’s mark. 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).”); see also 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, WHOIS information lists the registrant as “Domain Admin” of “GuardPrivacy.org” as the registrant of the disputed domain name. Complainant asserts that Respondent is not a licensee of Complainant. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Additionally, Complainant argues that Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services nor for a legitimate noncommercial or fair use because Respondent uses the disputed domain name to offer services in competition with Complainant. A domain name that offers services that compete with a complainant may be evidence of a domain name not being used in connection with a bona fide offering of goods or services nor for a 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.”). Complainant provides screenshots showing the disputed domain name resolves to a website offering competing loan services. These are the same services that Complainant provides on its own website. Therefore, the Panel finds that Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services nor for a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii).
The Panel finds that Complainant has made out a prima facie case that arises from the considerations above. All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant argues Respondent registered and uses the disputed domain name in bad faith because Respondent engages in a pattern of bad faith registration and use. Under Policy ¶ 4(b)(ii), evidence that a respondent has previously registered infringing domain names indicates a pattern of bad faith. See Fandango, LLC v. 21562719 Ont Ltd, FA1209001464081 (Forum Nov. 2, 2012) (“Respondent’s past conduct and UDRP history establishes a pattern of registered domain names in bad faith under Policy ¶ 4(b)(ii).”). Complainant asserts that Respondent registered three previous domains incorporating the BALANCE CREDIT mark, which resulted in UDRP proceedings. See Braviant Holdings, LLC v. Domain Admin / GuardPrivacy.org, FA 1958073 (Forum Sept. 6, 2021) (Transferring balancecredit-member.com and balancecredit-5k.com in view of Respondent’s violation of the Policy.); See also, Braviant Holdings, LLC v. Domain Admin / GuardPrivacy.org, FA 2109001964570 (Forum) (Pending). Therefore, the Panel finds that Respondent engages in a pattern of bad faith registration and use per Policy ¶ 4(b)(ii).
Additionally, Complainant argues that Respondent registered and uses the disputed domain name in bad faith as Respondent competes with Complainant by offering the same services. A domain name that is used to offer the same services that compete with a Complainant may be an indication of a domain name has been registered and used in bad faith under Policy ¶¶ 4(b)(iii) and (iv). See LoanDepot.com, LLC v. Kaolee (Kay) Vang-Thao, FA1762308 (Forum Jan. 9, 2018) (Finding that Respondent’s use of the disputed domain name to offer competing loan services disrupts Complainant’s business under Policy ¶ 4(b)(iii)); see also CAN Financial Corporation v. William Thomson / CNA Insurance, FA1401001541484 (Forum Feb. 28, 2014) (finding that the respondent had engaged in bad faith under Policy ¶ 4(b)(iv), by using a confusingly similar domain name to attract Internet users to its own website where it sold competing insurance services). Complainant contends that Respondent disrupts Complainant’s business by offering similar loan services Complainant provides on its own website. Complainant argues that Respondent uses the disputed domain name as an attraction for commercial gain because users would be confused as to the domain name’s association with Complainant due to Respondent’s offering of similar services. Therefore, the Panel finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶¶ 4(b)(iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <balancecredit-origin.com> domain name be TRANSFERRED from Respondent to Complainant.
Ho-Hyun Nahm, Esq., Panelist
Dated: November 8, 2021
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